Chase v. Daily Record, Inc.

• Decision Date: 25 October 1973
• Docket Number: No. 42664,42664
• Citation: 83 Wn.2d 37,515 P.2d 154
• Parties: Willard CHASE, Petitioner, v. The DAILY RECORD, INC., a corporation, Respondent.
• Court: Washington Supreme Court

Page 37

83 Wn.2d 37

515 P.2d 154

Willard CHASE, Petitioner, v. The DAILY RECORD, INC., a corporation, Respondent.

No. 42664.

Supreme Court of Washington, En Banc.

Oct. 25, 1973.

Rehearing Denied Dec. 12, 1973.

Tonkoff, Dauber & Shaw, Dauber, Yakima, for petitioner.

Halverson, Applegate, McDonald, Bond, Grahn, Wiehl & Almon, Alan A. McDonald, Yakima, for respondent.

FINLEY, Associate Justice.

This action concerns an order of the Kittitas County Superior Court granting a motion of the defendant/respondent newspaper, The Daily Record, for summary judgment dismissing a libel action instituted by the plaintiff/appellant, Willard Chase.

The facts of the instant case are as follows: In the Spring of 1971, the appellant, Willard Chase, was a commissioner for the Kittitas County Port District. Pursuant to a state audit of the port district, Chase was requested to make 'repayment' of certain sums to the port district upon the basis that he had allegedly received reimbursement from the port district for a trip which he was supposed to make, but one which he did not actually take to Washington, D.C. The record shows that a commissioner of the local public utility district took the trip instead of appellant Commissioner Chase of the Kittitas Port District. On April 9, 1971, after learning that a newspaper in Kittitas County intended to publish a news story relating to this 'repayment', Chase contacted the owner-publisher of the paper and requested that he be permitted to have a statement published. Chase was advised at that point to contact the newspaper office the following morning. On April 10, 1971, Chase telephoned the editor of the newspaper and read a prepared statement. ¹ That same day, the newspaper ran a news article on the 'repayment' issue, publishing in part the in connection with the recent port audit, by Chase that he had actually received no public funds as reimbursement for the trip that he did not take. ² This omission constitutes the basis for the immediate libel action. After reviewing various pretrial affidavits, depositions, interrogatories, and exhibits, including the news article itself, the trial court granted a motion by the respondent newspaper for summary judgment. In support of this order, the court observed that Chase had failed to present evidence sufficient to demonstrate the existence of any issue of fact relating to the necessary material element for a libel action which concerns a public official in a matter of public interest, to-wit: Actual malice. This ruling of the trial court was affirmed by the Court of Appeals.

In reviewing the preceding judgments in this case, we are mindful of the pertinent modification to the law of libel established by the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as that relates to 'public officials'. In delineating the protection accorded speech and press by the First Amendment, the Court prefaced its ruling in New York Times with the following observation:

(W)e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131; De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 81 L.Ed. 278.

New York Times v. Sullivan, Supra, 376 U.S. at 270--271, 84 S.Ct. at 721. Upon this basis, the Court concluded as follows:

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

New York Times v. Sullivan, Supra, 376 U.S. at 279--280, 84 S.Ct. at 726. Accord: Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Miller v. Argus Publishing Co., 79 Wash.2d 816, 490 P.2d 101 (1971); Grayson v. Curtis Publishing Co., 72 Wash.2d 999, 436 P.2d 756 (1967). In Garrison v. Louisiana, Supra, 379 U.S. at 74, 79, 85 S.Ct. at 216, the Court restricted recovery in libel actions instituted by public officials to those cases where false statements are made with a 'high degree of awareness of their probable falsity,' rejecting an 'ordinary care' or 'mere negligence' standard. This 'reasonable-man standard of liability' was again declined in Rosenbloom v. Metromedia, Inc., Supra, 403 U.S. at 50--51, 91 S.Ct. 1811. In applying the strict test of knowledge of falseness or reckless disregard of the falseness of an allegedly libelous statement, the Court has required that evidence proffered by a plaintiff-public official to show such Actual malice must do so with 'convincing clarity'. New York Times v. Sullivan, Supra, 376 U.S. at 285--286, 84 S.Ct. 710.

The plaintiff-appellant, Willard Chase, became the subject of the allegedly libelous news article as a result of his public position as port district commissioner; by his own admission, his conduct constituted an 'issue of public or general concern.' Rosenbloom v. Metromedia, Inc., Supra, 403 U.S. at 44, 91 S.Ct. at 1820. Thus, Chase was a 'public official' as defined in New York Times, and therefore, at the final or 'full-blown' trial stage of the lawsuit, would be required to prove by evidence meeting the standard of 'convincing clarity' prescribed by the decisions of the United States Supreme Court (1) that the allegedly defamatory statement concerning his official conduct was, in fact, false, and (2) that this false statement was published with knowledge that it was false or with reckless disregard of whether it was false or not.

Faced at the opening or pretrial stage of the lawsuit with a motion by the respondent newspaper for summary judgment, Chase had the burden of producing or setting forth 'specific facts showing there is a genuine issue of material fact for trial.' Plaisted v. Tangen, 72 Wash.2d 259, 263, 432 P.2d 647 (1967). This requirement was elaborated upon in Leland v. Frogge, 71 Wash.2d 197, 200--201, 427 P.2d 724, 727 (1967) as follows:

The function of a summary judgment is to determine whether there is a genuine issue of material fact requiring a formal trial. Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963); Olson v. Balch, 63 Wash.2d 938, 389 P.2d 900 (1964). The evidence before the judge is that contained in the pleadings, affidavits, admissions and other material properly presented. State ex rel. Bond v. State, 62 Wash.2d 487, 383 P.2d 288 (1963); 3 Barron & Holtzoff, Federal Practice and Procedure § 1236. When a pleading or affidavit is properly made and is uncontradicted, it may be taken as true for purposes of passing upon the motion for summary judgment. Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605 (1960); Henry v. St. Regis Paper Co., 55 Wash.2d 148, 346 P.2d 692 (1959). A party may not rest on formal pleadings, but must affirmatively present the factual evidence upon which he relies. Reed v. Streib, 65 Wash.2d 700, 399 P.2d 338 (1965); Meissner v. Simpson Timber Co., 69 Wash.2d 954, 421 P.2d 674 (1966).

The Court of Appeals, in considering the instant case, has stated:

. . . plaintiff had the burden of producing sufficient facts in the summary judgment proceeding to establish a genuine issue of fact which, if believed, could persuade a jury With convincing clarity that defendant was guilty of actual malice in failing to insert plaintiff's denial of having received any moeny in connection with the trip.

(Emphasis ours.) Chase v. Daily Record, Inc., 8 Wash.App. 1, 4, 503 P.2d 1103, 1106 (1972). While we agree with this very basic analytical thesis or structure set out by the Court of Appeals, it seems to us some further analysis and discussion is necessary and may be helpful.

As to summary judgment procedure in run-of-the-mill lawsuits, it is well established that the function of the trial court in ruling upon a motion for summary judgment is not to resolve the basic factual issues, with the ultimate finality which is expected and is appropriate at the final or 'full-blown' trial stage of a lawsuit. Rather, the trial court's function is to determine whether a genuine issue as to any material fact exists. Hughes v. Chehalis School District, 61 Wash.2d 222, 377 P.2d 642 (1963); Jolly v. Fossum, 59 Wash.2d 20, 365 P.2d 780 (1961); Trautman, Motions for Summary Judgment: Their Use and Effect in Washington, 45 Wash.L.Rev. 1 (1970). In defamation actions by public officials, although the summary judgment procedure is basically the same, we are convinced the decisions of the United States Supreme Court have added a new facet, measurement, or dimension which must now be considered and resolved by the trial courts. In other words, in such defamation actions, if the trial judge at the summary judgment stage determines that the plaintiff has offered evidence of A sufficient quantum to establish a prima facie case, and the offered evidence Can be equated with the standard or test of 'convincing clarity' prescribed by United States Supreme Court decisions, the motion for summary judgment should be denied. ³ Accord, United Medical Lab., Inc. v Columbia Broadcasting Sys., Inc., 404 F.2d 706 (9th Cir. 1968), cert. denied, 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969).

Adverting now to the factual proof presented to the trial court in the instant case: the defendant Daily Record published a news article about the plaintiff, including these statements: 'All payments were made to the county port district and were termed as 'repayment and penalty' . . . (t)he larger amount...