Chilton v. Center for Biological Diversity

• Decision Date: 06 December 2006
• Docket Number: No. 2 CA-CV 2005-0115.,2 CA-CV 2005-0115.
• Citation: 214 Ariz. 47,148 P.3d 91
• Parties: James K. CHILTON, Jr. and Chilton Ranch and Cattle Company, an Arizona partnership, Plaintiffs/Appellees, v. CENTER FOR BIOLOGICAL DIVERSITY, INC., a New Mexico corporation; Martin Taylor; Shane Jimerfield; and Andrew John Schneller, Defendants/Appellants.
• Court: Arizona Court of Appeals

148 P.3d 91

214 Ariz. 47

James K. CHILTON, Jr. and Chilton Ranch and Cattle Company, an Arizona partnership, Plaintiffs/Appellees, v. CENTER FOR BIOLOGICAL DIVERSITY, INC., a New Mexico corporation; Martin Taylor; Shane Jimerfield; and Andrew John Schneller, Defendants/Appellants.

No. 2 CA-CV 2005-0115.

Court of Appeals of Arizona, Division 2, Department B.

December 6, 2006.

COPYRIGHT MATERIAL OMITTED

Birch, Horton, Bittner and Cherot By Gregory S. Fisher, Anchorage, Alaska and Jaburg & Wilk, P.C. By Kraig J. Marton, Phoenix, Attorneys for Plaintiffs/Appellees.

Haralson, Miller, Pitt, Feldman & McAnally, P.L.C. By Stanley G. Feldman, Tucson, and Davis Wright Tremaine, LLP By Susan E. Seager, Los Angeles, California, and

Thomas R. Burke, San Francisco, California, Attorneys for Defendants/Appellants.

Gil Venable, Phoenix, Attorneys for Amici Curiae, Arizona Wildlife Federation, Forest, Guardians, Maricopa Audubon Society and The Sierra Club.

Fennemore Craig By Norman D. James and Janice Procter-Murphy, Phoenix, Attorneys for Amicus Curiae and Arizona Cattle Growers Association.

OPINION

BRAMMER, Judge.

¶ 1 Appellants Center for Biological Diversity, Inc., Martin Taylor, Shane Jimerfield, and A.J. Schneller (CBD) appeal from a jury verdict finding them liable for defaming appellees James K. Chilton, Jr., and Chilton Ranch and Cattle Company (Chilton) and interfering with Chilton's business expectations, and awarding Chilton $100,000 in compensatory damages and $500,000 in punitive damages. CBD argues that the Internet publication of material it had submitted in an appeal to the United States Forest Service (USFS) is absolutely privileged under both the federal and state constitutions and Arizona common law. CBD also contends that, even if the material is not absolutely privileged, Chilton failed to establish it was false or issued with actual malice, and that the trial court erred by submitting misleading questions to the jury. Finally, CBD asserts that the punitive damages award should be vacated. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 Chilton is a rancher who holds a permit from the USFS to graze cattle on the Montana Allotment, an approximately 21,500-acre parcel of federal land in southern Arizona. As required by the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 to 4370F, and 40 C.F.R. § 1503, the USFS invited public comment on its decision to renew the permit in 1999. USFS renewed the permit for ten years in April 2002 after finding the renewal would have no significant impact on the environment. CBD, a non-profit group, appealed this decision within the USFS's administrative appeals process in June 2002.

¶ 3 In July 2002, CBD posted a "news advisory" on its website that included a link to the appeal and two appendices that contained twenty-one photographs and captions it had originally submitted to USFS. Jimer-field designed and managed the website for CBD, Taylor wrote the news advisory and some of the captions that accompanied the photographs, and Schneller took most of the photographs and wrote some of the captions. The USFS denied the appeal in August 2002.

¶ 4 After the news advisory had been posted for about a year, and a week after sending a letter demanding a retraction, Chilton sued CBD for defamation, false light, interference with business expectations, and intentional infliction of emotional distress. Before trial, Chilton withdrew the intentional infliction of emotional distress claim. During the trial, the court granted CBD's motion for a directed verdict on the false light claim. After the jury returned its verdict for Chilton, CBD appealed.

Privileges

¶ 5 CBD contends the publication of the material it submitted to the USFS is absolutely privileged under both the federal and state constitutions and Arizona common law. Chilton responds that CBD's federal constitutional defense, based on the First Amendment's Petition Clause, has been waived and that the common law privilege is inapplicable.¹ We review de novo the question of law as to whether the publication was privileged. Lewis v. Oliver, 178 Ariz. 330, 333, 873 P.2d 668, 671 (App.1993).

First Amendment Petition Privilege

¶ 6 The First Amendment states "Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances." U.S. Const., amend. I. Quoting Kottle v. Northwest Kidney Centers, 146 F.3d 1056, 1059 (9th Cir.1998), CBD argues that

[t]his case is governed by the Noerr-Pennington doctrine, named after two cases² in which the [United States] Supreme Court "recognized that for the Petition Clause to be a meaningful protection of the democratic process, citizens must be immune from some forms of liability for their efforts to persuade government officials to adopt policy or perform their functions in a certain way."

They claim that the Noerr-Pennington doctrine extends the Petition Clause's protection to indirect petitioning, such as the Internet posting here.

¶ 7 After the jury rendered a verdict in favor of Chilton, CBD filed a joint motion for judgment as a matter of law and/or motion for new trial, arguing the Noerr-Pennington doctrine "provides an absolute privilege" for the material published on the website. The trial court found CBD had waived this argument, stating the Noerr-Pennington doctrine had not been "raised in pretrial motions, at trial, or at the time of the request for judgment as a matter of law during trial."

¶ 8 CBD asserts the trial court erred in finding it had waived its Noerr-Pennington doctrine claim, arguing it had raised the issue "in its answer, joint pretrial statement, [and] proposed jury instructions" before its post-trial motion. Because "[t]he concept of waiver is based on two factors: fair notice and judicial efficiency," Geronimo Hotel & Lodge v. Putzi, 151 Ariz. 477, 479, 728 P.2d 1227, 1229 (1986), we find the record supports the trial court's conclusion that CBD has not preserved this argument. See Golonka v. Gen. Motors Corp., 204 Ariz. 575, ¶ 34, 65 P.3d 956, 967 (App.2003) (reviewing a trial court's decision that a party had waived an issue for an abuse of discretion).

¶ 9 In the affirmative defenses section of its answer, CBD simply stated, "Defendants state . . . first amendment protection." In its portion of the joint pretrial statement, CBD contended "the News Advisory . . . [is] protected by the First Amendment right to free speech and to petition the federal government for a redress of grievances." CBD also proposed a jury instruction it now asserts had squarely raised the Noerr-Pennington doctrine claim. However, the instruction in no way fairly raised such a claim, and the issue it raises here was never briefed or argued to the trial court until the post-trial motion. Instead, CBD argued in its summary judgment motion that it was protected by a "legislative proceeding privilege," based on Bailey v. Superior Court, 130 Ariz. 366, 636 P.2d 144 (App.1981), and Arizona common law. CBD never raised or discussed the Noerr-Pennington doctrine in its directed verdict motion, made pursuant to Rule 50, Ariz. R. Civ. P., 16 A.R.S., Pt. 1, on the next to last day of the trial. Without any briefing or substantive discussion of the issue until after the trial had been completed, the trial court did not err in determining CBD had waived the issue.

¶ 10 CBD argues for a relaxation of the waiver doctrine under the rationale of Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 945 P.2d 317 (App.1996). In that case, Division One of this court found the failure to address an issue in a motion for directed verdict during trial did not automatically waive the issue for purposes of a motion for a judgment notwithstanding the verdict if the issue in question was a "pure issue of law that would not have been susceptible to the introduction of further evidence," and if the other party "was aware before [the] motion for JNOV of [the moving party's] position." Standard Chartered, 190 Ariz. at 27, 945 P.2d at 338. However, we find the Standard Chartered rationale inapplicable here. In Standard Chartered, the issue was adequately raised and argued before it was abandoned in the motion for a directed verdict; it "had [been] addressed . . . in summary judgment briefing before trial." Id. In significant contrast, there is nothing in our record that indicates there had been any briefing or substantive discussion of the Noerr-Pennington doctrine until the post-trial motions. Additionally, had the issue been raised in any meaningful way, Chilton may well have produced additional evidence with respect to the timing of CBD's appeal of the USFS decision and whether the Petition Clause privilege was applicable under the circumstances.

¶ 11 Finally, citing Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 482, 724 P.2d 562, 568 (1986), CBD argues we should suspend the "procedural" rule of waiver. We decline its invitation to do so. In Dombey, our supreme court addressed whether the plaintiff was a public figure for defamation purposes, despite the defendant's failure to raise the issue in the court of appeals, stating it could "suspend[] [waiver] in [its] discretion." Id. at 482, 724 P.2d at 568. CBD admits the issue in Dombey "was briefed and considered by the trial court," unlike here, where the Petition Clause issue was not briefed until after the trial had concluded, and the trial court had not previously been given the opportunity to consider the issue. See also McDowell Mountain Ranch Land Coal. v. Vizcaino, 190 Ariz. 1, 5, 945 P.2d 312, 316 (1997) (declining to hear constitutional challenges to residency requirement not raised below, although appellant urged consideration of issue under Dombey); Barsema v. Susong, 156 Ariz. 309, 311 n. 1, 751 P.2d 969, 971 n. 1 (1988) (appellate court's discretion to hear constitutional arguments not argued below should be "sparingly invoked").

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