Dixon v. Ogden Newspapers, Inc.

• Decision Date: 13 May 1992
• Docket Number: No. 19425,19425
• Citation: 187 W.Va. 120,416 S.E.2d 237
• Parties: , 20 Media L. Rep. 1169 Ronald L. DIXON, Plaintiff Below, Appellee, v. OGDEN NEWSPAPERS, INC., a Corporation, Defendant Below, Appellant. and Donald J. NAEGELE, Plaintiff Below, Appellee, v. OGDEN NEWSPAPERS, INC., a Corporation, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 237

416 S.E.2d 237

187 W.Va. 120, 20 Media L. Rep. 1169

Ronald L. DIXON, Plaintiff Below, Appellee, v.OGDEN NEWSPAPERS, INC., a Corporation, Defendant Below, Appellant. andDonald J. NAEGELE, Plaintiff Below, Appellee, v.OGDEN NEWSPAPERS, INC., a Corporation, Defendant Below, Appellant.

No. 19425.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1991.

Decided Feb. 27, 1992.

Rehearing Denied May 13, 1992.

Syllabus by the Court

1." '[A] public official ... can sustain an action for libel only if he can prove that: (1) the alleged libelous statements were false or misleading; (2) the statements tended to defame the plaintiff and reflect shame, contumely, and disgrace upon him; (3) the statements were published with knowledge at the time of publication that they were false or misleading or were published with a reckless and willful disregard of truth; and, (4) the publisher intended to injure the plaintiff through the knowing or reckless publication of the alleged libelous material.'Syllabus Point 1, in part, Sprouse v. Clay Communication, Inc., 158 W.Va. 427, 211 S.E.2d 674, 95 A.L.R.3d 622, cert. denied, 423 U.S. 882, 96 S.Ct. 145, 46 L.Ed.2d 107(1975)."Syllabus point 4, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778(1986).

2."Under New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686(1964), whenever there is a First Amendment defense to actions under state law, the state court is required to be a judge of both the facts and the law...."Syllabus point 2, in part, Mauck v. City of Martinsburg, 167 W.Va. 332, 280 S.E.2d 216(1981).

3."A court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory meaning."Syllabus point 6, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778(1986).

4.In order to sustain an action for libel, a public official must present clear and convincing evidence that the media defendant acted with actual malice.Actual malice must be proven with convincing clarity.

5.Evidence that a media defendant intentionally "avoided" the truth in its investigatory techniques or omitted facts in order to distort the truth may support a finding of actual malice necessary to sustain an action for libel.

William R. Metzner, Wheeling, for appellees.

Herbert G. Underwood, Matthew J. Mullaney, Clarksburg, for appellant.

BROTHERTON, Justice.

The plaintiffs, Ronald L. Dixon and Donald J. Naegele, brought separate libel actions in the Circuit Court of Ohio County, West Virginia, against Ogden Newspapers, Inc., publisher of The Intelligencer, a newspaper with a circulation of approximately 24,000 in the northern panhandle of West Virginia.The two cases were consolidated for purposes of discovery and trial.

The defendant newspaper initially moved for dismissal in accordance with Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.Thereafter, the defendant filed a memorandum in support of a summary judgment motion, arguing that the publication of the newspaper articles in question was protected by the common law reporters privilege as a fair and accurate report of an official proceeding.In an opinion and order dated February 28, 1984, the circuit court denied the defendant's motion and stated that whether the newspaper articles were actually a fair and accurate report of the magistrate court proceedings, and were therefore entitled to the reporter's privilege, was a triable issue of fact precluding summary judgment.

The case eventually proceeded to trial.The court denied defense motions for a directed verdict at the conclusion of the plaintiff's evidence and after all evidence had been presented.On October 31, 1988, a jury awarded each plaintiff $250,000 in compensatory damages and $25,000 in punitive damages.On March 9, 1989, the trial court granted the defendant's motion for judgment notwithstanding the verdict and eliminated the punitive damage awards.Ogden Newspapers, Inc., now appeals to this Court from both the jury verdict and the judgment entered by the court below on November 10, 1988.The newspaper argues that the plaintiffs failed, as a matter of law, to adequately demonstrate either the falsity of the story or that the story was published with the actual malice required by New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686(1964), and its progeny.We agree that the constitutional evidentiary requirement was not met in this case, and for the reasons set forth below, we reverse the judgment of the Circuit Court of Ohio County.

The plaintiffs, Dixon and Naegele, were policemen employed by the City of Wheeling when a trial took place in the Magistrate Court of Ohio County in Wheeling, West Virginia, on May 2, 1983.During the course of this trial, the defendant, local businessman George Stefanow, identified both plaintiffs as police officers with whom he discussed a police vice raid which transpired on July 15, 1982.

Warren Bays, a veteran reporter employed by The Intelligencer, was assigned to cover Stefanow's trial, which arose out of Wheeling rookie police officer Robert Heldreth's allegation that Stefanow threatened him over the telephone on July 17, 1982.Stefanow admittedly called Heldreth after he learned that in the course of the aforementioned vice raid, Heldreth used Stefanow's name to gain access to the "Green Door," a suspected house of prostitution located in Wheeling.

At this point, it is important to note that George Stefanow is the brother-in-law of one of the plaintiffs in this case, Donald J. Naegele.He is also an admitted antagonist and outspoken critic of the leadership of the Wheeling Police Department.The plaintiffs describe Stefanow as a man who was conducting his own war to cleanse the higher ranks of the police department of alleged corruption.Stefanow states that when he learned that his name had been used by Heldreth in the raid, he suspected that Wheeling's Chief of Detectives Joseph S. Davis, Jr., Chief of Police Edward Weith, Jr., and members of Wheeling's vice squad had instructed Heldreth to use his name as a retaliatory measure to foster animosity toward Stefanow among his prospective constituents.¹At the time of the incidents which give rise to this action, Stefanow was a candidate for election to the Wheeling City Council.

According to the plaintiffs, Stefanow contacted each of them by telephone several days after the raid.Dixon states that, in response to Stefanow's questioning, he told Stefanow that the name of the police officer who had made the raid on the Green Door was Robert Heldreth.According to Dixon, this information was available to the public, and he gave it out over the phone in his official capacity as a sergeant. Later, in response to a separate phone inquiry, Officer Naegele told Stefanow that he had never heard of Officer Robert Heldreth.

Two days after the July 15, 1982, vice raid, Stefanow contacted Heldreth by telephone.In testimony given at trial on May 2, 1983, Stefanow stated that he called Heldreth because he wanted to know why Heldreth used his name to gain entrance to the Green Door.Stefanow said he wanted to know who told Heldreth to use his name, "[b]ecause I have lawsuits against [Detective Steve] Habursky and the police force, vice squad people."As a result of the call, Stefanow was subsequently charged with and tried for the alleged offense of telephone harassment.

Following Stefanow's trial on May 2, 1983, Warren Bays' report of the proceedings appeared in two separate news stories in the May 3, 1983, edition of The Intelligencer, which is a morning newspaper.One article appeared on page one with the headline "Stefanow: Policeman Supplied Information," and a lead paragraph which stated that "Wheeling tavern owner George Stefanow testified Monday that his brother-in-law, Patrolman Donald Naegele, and Sgt. Ronald Dixon of the Wheeling Bureau of Police supplied Stefanow information about a vice raid last summer."A second, lengthier article, entitled "Stefanow Found Innocent in Phone Threat" was on page eleven, which was the first page of the second or city section.These two news stories formed the basis for the libel actions filed by police officers Dixon and Naegele, who alleged that the newspaper was guilty of libel by innuendo which damaged their reputations.²

The plaintiffs concede that both of the articles written by Bays were substantially accurate and true "as far as they went."However, they maintain that material facts were omitted and, as a result, their reputations were damaged by the innuendo and the inferences that readers may draw from the two articles.The plaintiffs contend that the articles imply that they each gave Stefanow information concerning the July 15, 1982, police vice raid on the Green Door in advance of the raid, and thus interfered with the raid in some undisclosed manner.The plaintiffs further allege that Warren Bays intentionally designed the story so as to permit these inferences, in furtherance of a conspiracy between Bays and police Lt. Joseph Davis to damage the reputations of Officers Dixon and Naegele.

Elaborating on their argument, the plaintiffs maintain that Stefanow's trial testimony was quite clear with respect to both the mundane nature of his discussions with Dixon and Naegele and to the post-raid time frame, but that Bays nevertheless "transformed" Stefanow's truthful and nondefamatory testimony into false and defamatory news accounts of that testimony.The plaintiffs argue that they successfully proved at trial that Bays made this so-called transformation knowingly, intentionally, and maliciously, as a favor to his long-time friends, Lt. Davis and Chief Weith, who were political adversaries of Stefanow and viewed Dixon and Naegele as two of Stefanow's strongest supporters within the police department.

In its defense, the newspaper offers that the contents of the two stories were true and accurate.Bays...