O'Connor v. Burningham

• Decision Date: 31 July 2007
• Docket Number: No. 20060090.,20060090.
• Citation: 2007 UT 58,165 P.3d 1214
• Parties: Michael P. O'CONNOR, Plaintiff and Appellant, v. Gary W. BURNINGHAM, Jeanna Burningham, Sandy Phillips, Ruby Ray, Drew Downs, Curt Parke, Julie Parke, Mike Powell, Barbara Powell, Steve Davis, Jan Davis, Todd Kirkpatrick, Sue Chandler, Dallie Haderlie, Wendy Haderlie, John C. Rogers, Kenny Norris, Robyn Norris, Will Sunderland, Darlene Durrant, Robert T. Price, Kim M. Price, Kent Beckstead, Suzanne Beckstead, Lisa Gray, Jessica Johnsen, Jeff Burningham, Sheldon Worthington, Blair Swenson, Paula Swenson, John Jex, and John Does 1-50, Defendants and Appellees.
• Court: Utah Supreme Court

165 P.3d 1214

2007 UT 58

Michael P. O'CONNOR, Plaintiff and Appellant, v. Gary W. BURNINGHAM, Jeanna Burningham, Sandy Phillips, Ruby Ray, Drew Downs, Curt Parke, Julie Parke, Mike Powell, Barbara Powell, Steve Davis, Jan Davis, Todd Kirkpatrick, Sue Chandler, Dallie Haderlie, Wendy Haderlie, John C. Rogers, Kenny Norris, Robyn Norris, Will Sunderland, Darlene Durrant, Robert T. Price, Kim M. Price, Kent Beckstead, Suzanne Beckstead, Lisa Gray, Jessica Johnsen, Jeff Burningham, Sheldon Worthington, Blair Swenson, Paula Swenson, John Jex, and John Does 1-50, Defendants and Appellees.

No. 20060090.

Supreme Court of Utah.

July 31, 2007.

Joseph C. Rust, Matthew G. Bagley, Salt Lake City, for plaintiff.

Harold L. Peterson, Salt Lake City, for defendants Gary and Jeanna Burningham.

Michael W. Homer, Jesse C. Trentadue, John D. Luthy, Salt Lake City, for all other defendants.

Michael T. McCoy, Clover Meaders, Murray, for amicus Utah Education Ass'n.

NEHRING, Justice:

¶ 1 More than forty years have passed since the United States Supreme Court placed public officials on notice that they could seek redress for defamatory statements made about them only if actual malice animated those statements. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (involving a Montgomery, Alabama commissioner whose duties included the supervision of the police department). What the Court did not announce at the time, however, was the full roster of public officials, leaving considerable uncertainty over who qualified as a public official and who did not. Cf. Rosenblatt v. Baer, 383 U.S. 75, 85, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966) (indicating New York Times did not determine the "`categories of persons who would or would not be included'" (quoting 376 U.S. at 284 n. 23, 84 S.Ct. 710)).

¶ 2 Today we hold that a women's high school basketball coach is not a public official and that, therefore, defamatory remarks made about such a coach are not entitled to heightened constitutional protection. We further hold that the defendants, who made statements that the coach contends are defamatory, enjoy a conditional privilege. We therefore reverse the district court's grant of summary judgment in favor of the defendants and remand this case for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Michael O'Connor was the women's basketball coach at Lehi High School, located in a small, northern Utah town. In the fall of 2003, Michelle Harrison enrolled at the high school. From all accounts Ms. Harrison possessed basketball talent that placed her among the elite of high school basketball players nationwide.¹ Her arrival, however, did not herald the beginning of a basketball dynasty at the school, nor did the considerable basketball skill disparity between Ms. Harrison and her Lehi teammates foster a desirable team chemistry. Whatever the causes may have been, that all was not well in the Lehi Pioneers' locker room soon became evident and, this spelled trouble for Mr. O'Connor.

¶ 4 Commencing in November 2003 and continuing until the school dismissed Mr. O'Connor as the women's basketball coach before the start of the 2004-2005 school year, certain parents, extended family members, and friends of basketball team members (whom we will collectively refer to as the Parents as that is the term the parties chose for their own briefing) undertook a persistent and multifaceted campaign of complaints against Mr. O'Connor. They criticized his coaching demeanor. They questioned his use of money allocated to the team for travel and other team expenses. They accused him of extending unfair preferential treatment to Ms. Harrison both on and off the basketball court. They claimed that he had improperly recruited a player from another school.

¶ 5 Mr. O'Connor's detractors took their grievances to the school principal and administrators. Dissatisfied with the school administration's determination that Mr. O'Connor had done nothing wrong and put off by the principal's letter setting out ground rules for complaining about the coach, the Parents directed their complaints to a new audience: the Alpine School Board. Although the school board took no formal action against him, the high school administration dismissed Mr. O'Connor from his role as the women's basketball coach and cited as grounds for its decision his refusal to promise that he would not deny team membership and playing time to the women in retaliation against the Parents.

¶ 6 Mr. O'Connor sued the Parents for defamation. The Parents successfully moved for summary judgment before the district court based on their contention that Mr. O'Connor was a public official and, consequently, could not proffer a case for defamation without demonstrating that the Parents made their statements with actual malice-a showing the record did not permit. Mr. O'Connor appealed.

ANALYSIS

I. MR. O'CONNOR AS A WOMEN'S HIGH SCHOOL BASKETBALL COACH IS NOT A PUBLIC OFFICIAL

¶ 7 The central question before us — whether Mr. O'Connor is a public official — is an inquiry mandated by federal First Amendment principles announced by the United States Supreme Court. See, e.g., Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971); Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971); St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Curtis Publ'g Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

¶ 8 A central maxim of these cases is that in the realm of defamation law all persons are not treated equally. Those who by choice or mishap acquire the status of a public official or public figure surrender a sizeable measure of their right to recover damages from those who defame them. Statements directed against public officials or public figures require proof that the speaker acted with actual malice and is thus more at "fault" than one whose defamatory statements were the product of a less malignant state of mind. See, e.g., N.Y. Times, 376 U.S. at 279, 84 S.Ct. 710 ("[C]onstitutional guarantees require ... prohibit[ing] 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."). The heightened burdens placed on public officials and public figures by the First Amendment define the limits of recovery under state defamation laws.

¶ 9 The Supreme Court justified its decision to disqualify public officials from recovering for defamatory statements that would be actionable if made against private citizens by recalling our nation's unfortunate experience with attempts to muzzle speech critical of office holders. As the Supreme Court saw matters, to permit civil money damage awards against a public official was to tolerate a practice too reminiscent of the sanctions on expression imposed by the odious Sedition Act, ch. 74, 1 Stat. 596 (1798). See generally N.Y. Times, 376 U.S. at 296, 84 S.Ct. 710 (Black, J., concurring) ("[Congress] did pass the Sedition Act in 1798, which made it a crime — "seditious libel" — to criticize federal officials or the Federal Government.... [T]hat Act came to an ignominious end and by common consent has generally been treated as having been a wholly unjustifiable and much to be regretted violation of the First Amendment."). The lessons provided by the Sedition Act and other attempts by those entrusted with power to silence their critics were not lost on the Supreme Court. See, e.g., id. at 297, 84 S.Ct. 710 (Black, J., concurring) ("I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. `For a representative democracy ceases to exist the moment that the public functionaries are by any means absolved from their responsibility to their constituents; and this happens whenever the constituent can be restrained in any manner from speaking, writing, or publishing his opinions upon any public measure, or upon the conduct of those who may advise or execute it.'" (quoting Sir George Tucker, Blackstone's Commentaries *297 (1803))).

¶ 10 This court has applied the public official principle, albeit clumsily as we shall discuss shortly, in deciding defamation cases in which the defendants sought refuge in the First Amendment. We have not adopted the public official rubric as an interpretive guidepost to the Utah Constitution, but have instead elected to embrace the Supreme Court's defamation jurisprudence as our own. See generally West v. Thomson Newspapers, 872 P.2d 999, 1008 n. 13 (Utah 1994) ("Utah's `fault' requirement ... is derived from First Amendment standards."); Seegmiller v. KSL, Inc., 626 P.2d 968, 971-72 (Utah 1981) (grounding public official and public figure analysis in federal First Amendment jurisprudence).

¶ 11 The Supreme Court's recognition of the "public official" concept in New York Times appeared in the first of a brisk series of pronouncements on the proper relationship between the First Amendment and the right to protect reputation from defamatory assaults. It was followed in short order by Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), Baer in 1966, and Butts in 1967. New York Times shielded those who directed comments at public speakers from liability for all expression except for that made with actual malice, or with either knowledge of or reckless disregard for the statement's falsity. 376 U.S. at 280, 84 S.Ct. 710. The Court was less clear, however, in setting out just who a public official might be, noting that the case did...