Hein v. Lacy, 50769

• Decision Date: 18 July 1980
• Docket Number: No. 50769,50769
• Parties: , 6 Media L. Rep. 1662 Ronald R. HEIN, Plaintiff-Appellant, v. Sterling E. LACY, Defendant-Appellee.
• Court: Kansas Supreme Court

Page 277

616 P.2d 277

228 Kan. 249, 6 Media L. Rep. 1662

Ronald R. HEIN, Plaintiff-Appellant, v. Sterling E. LACY, Defendant-Appellee.

No. 50769.

Supreme Court of Kansas.

July 18, 1980.

Syllabus by the Court

1. For there to be liability for defamation, there must be a publication of matter that is both defamatory and false. Where the published statements are substantially true, there is no liability.

2. To preserve our freedoms, the expression of individual opinion and criticism of public officials must be given a broad scope. A person who holds political office should expect that opposition to his candidacy for reelection will be expressed at times with distortion and vituperation.

Ronald R. Hein, Topeka, pro se, argued the cause and was on the brief for plaintiff-appellant.

Charles R. Hay, of Goodell, Stratton, Edmonds, Palmer, & Wright, and Thomas O. Rost, of Rost & Rost, Topeka, argued the cause, and Thomas E. Wright, of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, was with them, on the brief for defendant-appellee.

PRAGER, Justice:

This is an action to recover damages for an alleged libel, arising from the publication and distribution of a brochure in the closing days of the 1978 primary election campaign. The plaintiff, Ronald R. Hein, was and is the Kansas state senator from the 20th Senatorial District, Shawnee County, Kansas. At the time of the publication, he was a candidate for the Republican nomination for the Second Congressional District. The defendant, Sterling E. Lacy, is a professional family counselor who served as state chairman of the American Party. The brochure was prepared for mailing at the defendant's office which, at the time, was also the state headquarters of the American Party.

On July 25, 1978, just six days before the August 1st primary election, the defendant Lacy caused to be distributed by mail and by hand around 22,000 copies of a brochure concerning the plaintiff Hein. A verbatim copy of the brochure is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

On July 31, 1978, the day before the primary election, plaintiff filed his petition in Shawnee County District Court, alleging that the brochure, by innuendo and misstatement of fact, was published with the malicious intent to defame and to reflect adversely upon plaintiff's candidacy. Plaintiff claimed, in substance, that the implication that he favored "pot and gays" was false and misleading, and, therefore, defamatory. He sought to recover both actual and punitive damages.

The defendant filed an answer in which he denied that the statements contained in the brochure were defamatory, alleging that the statements contained therein were true and, if not true in the fullest sense, were at least not actionable because he lacked any knowledge of their falsity. The parties then proceeded with discovery, obtaining admissions of fact and identifying and placing in the record certain documents, bills, and journals of the 1977 Kansas Senate and summaries of statements made before certain senate committees. These documentations are not disputed. They reflect the events surrounding the Senate committee's consideration of Senate Bill 310 (SB), pertaining to criminal prohibitions against certain sexual acts, and House Bill 2313 (HB), which would have reduced the penalty for possession of one ounce or less of marijuana. The voting record and positions taken by Senator Hein with respect to the two bills are clearly shown. In order to determine the issues raised on this appeal, we must first consider the background of each bill separately.

HB 2313 contained proposed amendments to the Uniform Controlled Substances Act (K.S.A. 65-4101, et seq.). At the time HB 2313 was being considered by the 1977 Kansas legislature, the possession of any quantity of marijuana was a class A misdemeanor, punishable by imprisonment in the county jail for up to one year or by a fine of up to $2,500 or both such fine and imprisonment (K.S.A. 1976 Supp. 65-4127b, 21-4502, and 21-4503). HB 2313, if enacted by the legislature, would have reduced the penalty for the possession of one ounce or less of marijuana to an unclassified misdemeanor punishable by a fine of not more than $100 for the first offense. Upon subsequent convictions, a person convicted of that offense would be punished as though guilty of a class A misdemeanor. The possession of greater amounts of marijuana than one ounce was subject to more severe penalties. The minutes of the Senate Federal and State Affairs Committee, dated March 31, 1977, reflect that Senator Hein seconded the motion of Senator Allegrucci to recommend HB 2313 favorably for passage. This motion failed and the bill was ultimately reported to the Senate without recommendation. The journal of the Senate for April 4, 1977, (pp. 560-561) reflects that Senator Hein moved that HB 2313 be referred back to the Senate committee after Senator Angell moved that the bill be stricken from the calendar. On that same day, a roll call was taken on whether to reconsider the action of the Senate on HB 2313. Senator Hein voted for reconsideration of the bill, but the motion failed and the bill was not adopted. These documents make it clear from the actions and votes of Senator Hein that he favored the adoption of HB 2313. The question then arises whether HB 2313 provided for the "decriminalization of marijuana" which was the charge against Senator Hein contained in the statements of the defendant in the brochure. HB 2313 clearly would have provided for a substantial reduction in the penalty for the first-time conviction of a possession of a small quantity of marijuana. The ultimate issue is whether this result would constitute the "decriminalization of marijuana" as that term is generally understood in common usage today.

Included in the records of the Senate Committee are the statements of various witnesses who appeared both in support of and in opposition to HB 2313. It is important to note that a number of the witnesses specifically referred to the reduction of the penalty on possession of small amounts of marijuana as the "decriminalization of marijuana." It is clear that the common understanding of many of these persons was that "decriminalization" did not mean the same as outright legalization-that decriminalization was a kind of halfway step toward legalization of marijuana. The witnesses appearing both in favor of and against the bill used the terms "decriminalization" and "legalization" in a manner reflecting a common understanding of those terms. The district court, in its memorandum decision granting summary judgment, concluded that the statements made by the defendant in the brochure that Senator Ron Hein's "arguments and his votes were in favor of the decriminalization of marijuana" fell within the ambit of fair comment and were protected under freedom of speech guaranteed by the First Amendment to the Constitution of the United States. Hence, it held such statements could not serve as a basis for an action in libel.

SB 310 would have amended several sections of the Kansas Criminal Code pertaining to sex offenses. The bill would have redefined and broadened the crime of sodomy for hire and would have defined bestiality as coitus with an animal and made it a crime. In addition, SB 310 would have repealed sections of the Code prohibiting sodomy between consenting adults, adultery, and unlawful cohabitation. Although the purpose of the bill was apparently to outlaw massage parlors, the proposed legislation would have removed the prohibition against copulation between consenting adults of the same sex. In its memorandum decision granting summary judgment to the defendant, the court held that defendant's statements concerning SB 310 were not so recklessly false as to demonstrate the malicious intent to injure required by the Constitution before an action in defamation can be maintained by a public figure whose voting record is attacked. The trial court concluded that the defendant's comments were constitutionally protected and summary judgment was appropriate. The trial court granted summary judgment in favor of defendant Lacy, and the plaintiff Hein appealed to this court.

There are three basic issues raised on the appeal: (1) Whether the statements made by the defendant were substantially true; (2) if the statements were false, whether the record establishes lack of malice as a matter of law; and (3) whether summary judgment was granted to the defendant prematurely because discovery had not been completed.

At the outset, we should review certain general rules to be followed in determining a motion for summary judgment. Summary judgment should not be entered if there remain genuine issues of material fact. Welch v. Young, 225 Kan. 189, 589 P.2d 567 (1979). In considering a motion for summary judgment, a trial court must give to a litigant against whom judgment is sought the benefit of all inferences that may be drawn from the admitted facts under consideration. A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue necessitates a determination of the state of mind of one or both of the parties. Gleichenhaus v. Carlyle, 226 Kan. 167, 597 P.2d 611 (1979); Bowen v. Westerhaus, 224 Kan. 42, 578 P.2d 1102 (1978). It has been recognized that summary judgment should be employed with caution in defamation cases. However, summary judgment may properly be granted in a defamation case when the evidence shows no liability as a matter of law and where the essential facts are not in dispute. Steere v. Cupp, 226 Kan. 566, 602 P.2d 1267 (1979); Gleichenhaus v. Carlyle, 226 Kan. at 169, 597 P.2d 611.

Before specifically addressing plaintiff's claims, it would also be helpful to review some general principles of the law of defamation pertaining to public officials and candidates for...