Clawson v. Longview Pub. Co.

• Decision Date: 05 January 1979
• Docket Number: No. 43668,43668
• Citation: 91 Wn.2d 408,589 P.2d 1223
• Parties: , 4 Media L. Rep. 2163 Eugene B. (Bert) CLAWSON, Respondent, v. LONGVIEW PUBLISHING COMPANY, a corporation, Ted M. Natt and Jane Doe Natt, his wife whose true Christian name is to the Plaintiff unknown, Appellants, Bob Peterson and Jane Doe Peterson, his wife whose true Christian name is to the Plaintiff unknown, and Bud May and Jane Doe May, his wife whose true Christian name is to the Plaintiff unknown, Defendants.
• Court: Washington Supreme Court

Page 408

91 Wn.2d 408

589 P.2d 1223, 4 Media L. Rep. 2163

Eugene B. (Bert) CLAWSON, Respondent, v. LONGVIEW PUBLISHING COMPANY, a corporation, Ted M. Natt and Jane Doe Natt, his wife whose true Christian name is to the Plaintiff unknown, Appellants Bob Peterson and Jane Doe Peterson, his wife whose true Christian name is to the Plaintiff unknown, and Bud May and Jane Doe May, his wife whose true Christian name is to the Plaintiff unknown, Defendants.

No. 43668.

Supreme Court of Washington, En Banc.

Jan. 5, 1979.

Klinberg, Reitsch, Frey & Kenny, Judson T. Klingberg, Gerry A. Reitsch, Longview, for appellants.

Roethler & McCulloch, Wayne Roethler, Philip E. Hickey, Longview, for respondent.

UTTER, Justice.

This is an appeal from a $10,000 judgment rendered in a defamation action against appellant publishing company and the managing editor of the Longview Daily News, Ted M. Natt. Appellants allege numerous substantive and evidentiary errors in conduct of the trial below. Finding the appeal to be meritorious, we reverse the judgment against the appellants and return this case to the Superior Court for further proceedings consistent with our determination.

This controversy arose out of a comprehensive investigation into the activities and practices of Charles Gill, Sheriff of Cowlitz County. That investigation resulted in the publication of articles in The Daily News focusing on the sheriff's conduct in office. One incident described in the articles involved the respondent, Eugene (Bert) Clawson, who was Administrator of the Cowlitz County Motor Pool. It was reported that respondent had towed a disabled automobile belonging to the sheriff's son to the county garage. The article containing that report, appearing in the April 23, 1973 edition of the newspaper, went on to state:

Once in the shop, the sheriff purchased a new engine block. But Clawson purchased a variety of small parts from a water pump to spark plugs for the Gill Boy's car at county expense. The total cost of parts was just over $41.

The new block and engine parts were installed on county time. The son's car was reportedly in the garage for several weeks and caused at least one county employee to complain about it. There was an oral policy in effect at the time that private cars not be worked on.

Respondent then commenced this defamation action. The next week the newspaper published a letter of response from the sheriff claiming not to have "done anything wrong." The paper included an editor's note stating that the article was published after a "thorough investigation", and that it was "fair, accurate and factual."

Respondent was Administrator of the Cowlitz County Motor Pool for nearly 10 years until his dismissal in October 1972 for involvement in the incident which is the subject of this defamation action. The function of the motor pool was to maintain and repair county vehicles. Respondent supervised a staff consisting of one full-time assistant and other part-time employees. He operated the motor pool without direct supervision and without specific written or oral instructions. He had arrangements with local distributors to supply the motor pool with a constant inventory of gas, oil, spark plugs, and other small parts and he had authority to bind the county financially for such items. Further, he had independent financial authority up to $500 per purchase to spend county funds in the procurement of parts and supplies through open accounts maintained at numerous establishments. Simultaneously, respondent operated his own private towing and garage business. He kept his tow truck at the county motor pool facility and maintained private accounts at many of the same automotive establishments at which the county had an open account.

After respondent's dismissal, the prosecuting attorney began an investigation. He found what he concluded to be irregularities in the purchases of the county motor pool, irregularities which he concluded clearly demonstrated criminal conduct by respondent. An assistant prosecuting attorney, C. C. Bridgewater, Jr., interviewed respondent's full-time assistant at the motor pool, Steven Carr, who confirmed that spark plugs, wires, oil, and an oil filter purchased by the county were installed in the car belonging to the sheriff's son. The assistant prosecutor recorded his interview and placed the transcribed version of it into a file after examining it for accuracy. He also placed several invoices from the motor pool purchases into that file. Eventually a hearing was held before a special inquiry judge but no charges were filed because, according to the prosecutor's testimony, he believed that respondent's dismissal was sufficient punishment for his transgressions.

Early in 1973 appellants began their investigation into the activities of the sheriff after becoming aware of deputy complaints. Two reporters, in addition to the managing editor, worked on the investigation. They contacted sheriff's deputies and the sheriff. They also consulted with the prosecuting attorney, who verified, in their entirety, the facts later appearing in the newspaper story. The sheriff was offered an opportunity to read the story before publication. Appellant Natt met again with the prosecuting attorney just prior to publication to reconfirm the accuracy of the story. However, respondent was not consulted prior to publication. Appellant Natt testified that respondent was not contacted because he was not the primary focus of the article, because appellants were satisfied with the prosecuting attorney's reliability, and because they were aware that respondent had appeared before the special inquiry judge and was under court compulsion to refrain from discussion of the incident.

Conflicting testimony was presented regarding the accuracy of the newspaper story. The trial judge ruled, as a matter of law, that respondent was not a public official under constitutional definitions of that term, and submitted the case to a jury on a negligence standard. The jury returned the $10,000 verdict.

Appellants assign error to the trial judge's determination that, as a matter of law, respondent was not a public official. Appellants urge that respondent was a public official as a matter of law. We agree.

In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court recognized the necessity to balance the interest of individuals in protecting their reputations against the necessity to insure the continued free exchange of ideas mandated by the First Amendment. Finding the strict liability imposed by the common law created a potential for self-censorship of the press which "dampens the vigor and limits the variety of public debate" (New York Times at 279, 84 S.Ct. at 725), the court held liability could not be imposed for statements defaming a public official concerning his official conduct absent a showing of actual malice on the part of the publisher. ¹ The New York Times holding was later extended to require proof of actual malice in cases involving defamation of a "public figure", Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), and made its furthest extension in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). There a plurality decision focused not upon the status of the individual defamed, but rather upon the issues with which the publication was concerned, and held even a private individual could not recover for a defamatory falsehood, published in the course of comment upon an event of public or general concern, without proving actual malice. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Supreme Court retreated from the position established in Rosenbloom, abandoning its focus upon the nature of the event reported and accenting instead the status of the individual defamed. Gertz Holds the malice standard enunciated in Rosenbloom need no longer be applied to defamatory falsehoods uttered by a publisher or broadcaster concerning a private individual and a matter of general public interest, and that

so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.

Gertz v. Robert Welch, Inc., supra, at 347, 94 S.Ct. at 3010. The Gertz decision, while altering the standard of liability applicable to private individuals, expressly recognizes the continuing vitality of both the "public official" and "public figure" doctrines and the necessity of proof of malice as to these classes of persons. See Gertz v. Robert Welch, Inc., supra at 342-43, 94 S.Ct. 2997.

It is conceded by all concerned that the newspaper article here at issue involves a matter of general public concern within that publication's area of circulation. It is also clear that the record is devoid of evidence suggesting the statements concerning the respondent were published with "actual malice" as that term has been defined by New York Times and its progeny. The determination of the "status" of the respondent is thus crucial to the existence of liability on the part of the appellants. If the respondent is a private individual, he need only show negligent publication. On the other hand, if he is a public official, liability may not be imposed, for no malice has been shown.

It is a task for the court to determine, in the first instance, whether the proofs show respondent to be a public official. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Here the trial court erred in holding the respondent to be a private individual as a matter of law and this error requires reversal of the judgment. In defining the term " public official", the courts must use constitutional, Not state law or dictionary standards. In Rosenblatt, the court states at...