Haas v. Painter

• Decision Date: 10 June 1983
• Docket Number: No. A8011-06216,A8011-06216
• Parties: , 9 Media L. Rep. 1665 Harl HAAS, Appellant, v. John PAINTER and Oregonian Publishing Company, an Oregon corporation, Respondents. ; CA A24559.
• Court: Oregon Court of Appeals

Page 768

662 P.2d 768

62 Or.App. 719, 9 Media L. Rep. 1665

Harl HAAS, Appellant, v. John PAINTER and Oregonian Publishing Company, an Oregon

corporation, Respondents.

No. A8011-06216; CA A24559.

Court of Appeals of Oregon.

Argued and Submitted Oct. 11, 1982.

Decided April 27, 1983.

Reconsideration Denied June 10, 1983.

Gerald R. Pullen, Portland, argued the cause and filed the brief for appellant.

Michael G. Holmes, Portland, argued the cause for respondents. With him on the brief were Richard S. Pope, and Spears, Lubersky, Campbell & Bledsoe, Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Plaintiff, a former Multnomah County District Attorney and the 1980 Democratic candidate for Attorney General, brought this action to recover damages to his reputation caused by an editorial published by defendants, which he contends was defamatory. He appeals from a judgment dismissing his complaint after defendants' motion for summary judgment ¹ was granted on the ground that the editorial was not "capable of being defamatory as statements of fact."

The editorial was written by defendant Painter and published on the editorial page of The Oregonian on September 18, 1980, seven weeks before the November general election. It concerned a local juvenile case of some notoriety in which Michelle Gates, a 14-year-old girl, had been accused of killing a small child. Prior to publication of the editorial, a circuit judge had ruled that statements made by Gates to police would not be admissible at trial, because she had not been advised of her Miranda rights before she was questioned, and another circuit judge thereafter dismissed the delinquency petition, because prosecutors had not acted on it within the time required by court rule. ²

The editorial criticized the manner in which the police and prosecutors handled the case, and read as follows:

"GATES TRAGEDY

"One of the tragedies in the Michelle Gates case is that important participants in the juvenile justice system failed to follow reasonably clear-cut procedural rules, thereby damaging her civil rights and short-circuiting society's self-protective interests.

"The incredible lapses, in what is supposed to be an enlightened system for handling juvenile delinquency matters, mandate a thorough examination of the system and the flaws that were so illuminated in the Gates case.

"The case was fatally flawed from the outset when police questioned the 14-year-old in connection with the January drowning death of 4-year-old Ruth Anne O'Neil. Juveniles, like adults, have constitutional rights, but the police failed to observe these by failing to warn her of the right to remain silent, the right to an attorney and so on--the Miranda warnings given to adults as a matter of course.

"That might not have occurred if the police and prosecutors had been in closer contact. But a policy set by District Attorney Harl Haas discourages such contact. Prosecutors have been told they should review cases only after the police investigation is complete.

"By that time, the police had made the critical lapse that later undermined the entire case against her. A judge ordered her incriminating comments suppressed. Later comments she made to other girls being held at the Donald E. Long Home detention facility also were suppressed as being 'fruits of the poisonous tree.' Her attorneys, Forrest 'Joe' Rieke and Larry Olstad, successfully argued that the statements could not be used against her in a delinquency hearing because she would not have made them had she not been held in the facility.

"While prosecutors were struggling on that constitutional front, they overlooked an important court rule which requires a delinquency petition to be dismissed if timely action is not taken. The rule is so firm that dismissal is automatic. No one even has to request it. For Miss Gates the 30 days expired last February 12. Since then she has been held illegally.

"That need not have occurred. Delays in juvenile hearings can be granted provided the reasons are presented to the court in writing and are found acceptable. That never occurred.

"As a result of such oversights, Multnomah County Circuit Judge George Van Hoomissen had no choice but to declare invalid the juvenile court petition accusing her of the child's death.

"The case must have some impact on the system. District attorneys and juvenile court officials should tighten up the operation, routinely applying the procedural rules to all juveniles.

"Police should undergo retraining to refresh them on the Miranda rights and should learn how to inform a juvenile of crucial rights in an understandable fashion."

Plaintiff alleged that the third and fourth paragraphs of the editorial were false and that defendants knew that they were false but published the editorial deliberately to defame him and to injure and destroy his professional reputation. He sought damages of $500,000. Defendants asserted, as affirmative defenses, that they had thought that the editorial was true, that it involved fair and permissible expressions of opinion and that publication of the editorial was constitutionally protected. In granting defendants' motion for summary judgment, the trial court relied on the pleadings and a deposition of plaintiff and stated correctly that the only issue was whether the editorial, standing alone, was "capable of being defamatory as statements of fact" or was a protected expression of opinion.

Whether a communication is capable of a defamatory meaning is a question for the court; the jury determines whether a communication capable of a defamatory meaning was so understood by the recipient. Beecher v. Montgomery Ward & Co., 267 Or. 496, 500, 517 P.2d 667 (1973). The starting point, however, in analyzing any claim brought by a public official against critics of his official conduct is recognition of the constitutional and common-law safeguards afforded the defendants and the policy underlying them.

Perhaps no principle is more fundamental to our political system than that citizens have an unrestricted right to criticize their government and its operation, which includes the right to criticize government officials. New York Times Co. v. Sullivan, 376 U.S. 254, 269-73, 84 S.Ct. 710, 720-22, 11 L.Ed.2d 686 (1964). For that reason, it has been held that even the most vituperative criticism of public officials is protected under the doctrine of fair comment and criticism so long as it is in the form of an opinion. Desert Sun Publishing Co. v. Superior Court, 97 Cal.App.3d 49, 158 Cal.Rptr. 519 (App.1979); Prosser, Torts 819-20, § 118 (4th ed 1971). False statements of fact do not serve the underlying purposes of the First Amendment, however. Nevertheless, robust and uninhibited discussion of public issues is so essential to our political health that a public official may not recover damages, even for a false defamatory statement of fact relating to his official conduct unless he proves that the statement was made with knowledge that it was false or that it was made with reckless disregard of whether it was false or not, because otherwise

" * * * would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. * * * " New York Times Co. v. Sullivan, supra, 376 U.S. at 279, 84 S.Ct. at 725.

As additional means of furthering this important interest, courts have gone to considerable lengths to characterize what appear to be statements of fact as statements of opinion ³ when made in the course of disputing matters of public interest. King v. Menolascino, 276 Or. 501, 555 P.2d 442 (1976); Desert Sun Publishing Co. v. Superior Court, supra. In King, the court held that the words alleged to be defamatory must be read in the context in which they were written--in that case, in response to the plaintiff's letter to the editor on a controversial subject. The defendant had made some statements of fact which, if true, made plaintiff's statements false and tended to make her appear to be a supporter of unworthy causes. However, the court viewed the letter as a whole and in the context of the highly controversial subject matter to which it related. As so viewed, the court held that the defendant's statements were not capable of a...