Herron v. KING Broadcasting Co.

• Decision Date: 22 June 1989
• Docket Number: No. 52342-8,52342-8
• Citation: 112 Wn.2d 762,776 P.2d 98
• Parties: , 17 Media L. Rep. 1289 Don HERRON and Patricia Herron, husband and wife, Appellants, v. KING BROADCASTING COMPANY, d/b/a King TV Channel 5, Don McGaffin and Jane Doe McGaffin, husband and wife, Respondents.
• Court: Washington Supreme Court

Page 762

112 Wn.2d 762

776 P.2d 98, 17 Media L. Rep. 1289

Don HERRON and Patricia Herron, husband and wife, Appellants, v. KING BROADCASTING COMPANY, d/b/a King TV Channel 5, Don McGaffin and Jane Doe McGaffin, husband and wife Respondents.

No. 52342-8.

Supreme Court of Washington En Banc.

June 22, 1989.

Rovai, McGoffin, Turner, Larkin & Miller and John A. Miller, Tacoma, for appellants.

Riddell, Williams, Bullitt & Wilkinshaw and Stephen E. DeForest, Seattle, for respondents.

DORE, Justice.

This defamation case is before us on rehearing of this court's decision in Herron v. KING Broadcasting, 109 Wash.2d 514, 746 P.2d 295 (1987). The court reversed the trial court's grant of summary judgment in favor of defendants Don McGaffin and KING Broadcasting Co. on the issue of malice. We reaffirm our prior holding. A fair appraisal of the evidence submitted on summary judgment and of the plaintiff's arguments from that evidence clearly show that the defendants were not entitled to summary judgment. The present opinion will clarify the grounds of our decision.

FACTS

On December 1, 1978, Don McGaffin, a reporter for KING, wrote and delivered the following report which was broadcast on KING's 5:30 p.m. newscast:

The Prosecutor's office in Pierce County has ... it has been confirmed that the FBI is being investigated by the Prosecutor's Office in Pierce County [sic ]. The FBI agents are questioning the Chief Prosecutor, Don Herron, and his deputies about bail bond procedures. Bondsmen John Carbone and Ron Williams are two of the eight men arrested and charged by the Justice Department on racketeering charges this week. Carbone heavily contributed to Herron's election campaign four years ago and again in 1978. Also arrested for racketeering was Herron's close friend and vacation companion, Lamont Zemek. Zemek's ex-wife, Nina Zemak, is Herron's long-time administrative aide. The FBI wants to know how Herron and the Pierce County Prosecutor's Office collected forfeited bail bonds, particularly from bondsmen Carbone and Williams. That was confirmed for KING-5 News today when Deputy Prosecutor Terry Sebring told me that he could not discuss bail bond matters. He said it would be inappropriate because his department is being questioned by the FBI and other Justice Department officials. This is the way ... this is what the FBI is looking at. Let's say you get arrested and charged with a felony down in Pierce County. Sources inside the Sheriff's Department told KING-5 News today the jail officials will urge you to call Carbone's bail bonding company. Say bail is set at $10,000. You don't have the $10,000. The bondsman, Carbone, for instance, will put up a bond ... a piece of paper ... for $10,000. You pay Carbone approximately $1,000 in fees. But if you skip town, then what happens? At that point the prosecutor is supposed to file a motion in court demanding that your $10,000 bond be forfeited to the county. The judge signs the order. The prosecutor is then supposed to serve notice on the bail bondsmen to produce the $10,000 which then goes into the Pierce County Treasurer's Office. That is what is supposed to happen, but if a prosecutor doesn't push the bail bondsman for forfeiture and he doesn't pay up, what happens? Do the judges know? Or check? No. The Clerk of the Court has no way of knowing. Records are organized in such a way that they can't know. Only the prosecutor knows. A deputy ... or ... plus a deputy or two. KING-5 News has learned that only 18 times since 1975 has bail been collected on forfeiture in all of Pierce County Superior Court and only 4 of those cases were handled by the Carbone bail bonding company. Once in '75 ... three times in 1977. Bail bondsmen were irritated at the former Pierce County Prosecutor, Ron Hendry, for pushing to collect those forfeited bail bonds monies. They contributed approximately half of all campaign money collected by Don Herron, who then beat Ron Hendry in 1974.

(Italics ours.) Herron's claim rests principally on the highlighted statement, which McGaffin conceded to be false in an affidavit submitted in support of summary judgment. Clerk's Papers, at 186.

McGaffin's investigation, on which he based his report, began with an anonymous telephone call informing him that the FBI was investigating possible improper bail bond procedures by the Pierce County Prosecutor's Office. McGaffin tried and failed to contact Prosecuting Attorney Herron. McGaffin did obtain an interview with Terry Sebring, a deputy prosecutor, who confirmed the existence of the investigation but refused to discuss the matter further. Sebring swore in his affidavit that McGaffin's response to this refusal was hostile. According to Sebring:

He then said with his face close to mine and lowered his voice, "You will regret doing this (indicating refusing to answer his questions). I will get you (could have been 'fix you'). Just watch the news."

Clerk's Papers at 262-63. This episode was corroborated by reporter Barbara Anderson and receptionist Maria Chantrey, who were present at the scene.

McGaffin spoke with the Pierce County Superior Court Clerk who supplied him with the statistics used in his report, and a superior court judge, who discussed bail bond forfeitures.

McGaffin also looked at the records of Herron's campaign contributions as reported by the Public Disclosure Commission. The reports list the names of contributors and the amount given by each. The reports for Herron's 1974 campaign show that Herron's contributions totaled approximately $38,000. Only $825 was contributed by bail bondsmen.

McGaffin also interviewed former Pierce County Prosecuting Attorney Ron Hendry and one of Hendry's former deputies, Douglas McBroom. McGaffin could not recall whether he interviewed the two men before or after examining the records of the Public Disclosure Commission. McGaffin asserts that one of the two former prosecutors told him that approximately half of Herron's 1974 contributions came from bail bondsmen. Neither Hendry nor McBroom believes he made such a statement.

Hendry cannot recall whether he and McGaffin discussed bail bonds or bail bondsmen's contributions to Herron at all. He testified, however, that he was certain he did not tell McGaffin that approximately half Herron's contributions came from bail bondsmen.

Q. Would you have told Mr. McGaffin that over half the money collected by Mr. Herron in his campaign to defeat you was supplied by the bail bond interests of Pierce County?

A. No.

Q. Would you have said approximately under one-half?

A. No.

Q. Okay, why wouldn't you have used those words?

A. My recollection from the campaign is that the bail bond contributions to Mr. Herron's campaign were in the neighborhood of $1,500.

Q. If Mr. McGaffin would have asked you how much you thought the bail bond interests would have contributed to Mr. Herron's campaign, what would you have told him? $1,500?

A. Yes.

Deposition of R. Hendry, at 21.

Hendry's deputy McBroom also does not remember the substance of his conversation with McGaffin. McBroom did testify however that he did not tell McGaffin that one-half of Herron's contributions came from bail bondsmen. McBroom testified: "I don't think that I probably, I'm sure I didn't know." Deposition of D. McBroom, at 21.

Herron sued KING and McGaffin for defamation. The trial court granted summary judgment to KING and McGaffin on the ground that no jury question was presented on the issue of material falsity. Clerk's Papers, at 5. This court reversed, holding that Herron had made a sufficient prima facie showing of material falsity to preclude summary judgment and that a jury question also was presented as to actual malice. KING and McGaffin moved for reconsideration and the court granted the motion. ¹

STANDARDS GOVERNING REVIEW

In reviewing a denial or grant of summary judgment, this court applies the same standard as a trial court: construing the evidence in the light most favorable to the nonmoving party, the court asks whether a reasonable jury could find in favor of that party. If the answer is yes, the motion for summary judgment should be denied and the question should go to the jury. Wendle v. Farrow, 102 Wash.2d 380, 383, 686 P.2d 480 (1984).

The plaintiff alleging defamation must show four elements: falsity, an unprivileged communication, fault and damage. Mark v. Seattle Times, 96 Wash.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982). If the plaintiff is a public figure and the defamation concerns his public duties, the plaintiff must show that the defendant acted with malice. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964). All the elements of defamation must be shown with convincing clarity. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986); Chase v. Daily Record, Inc., 83 Wash.2d 37, 43, 515 P.2d 154 (1973).

The plaintiff responding to a motion for summary judgment in a defamation case must show that the jury could decide in his favor while applying the clear and convincing evidence standard. Anderson v. Liberty Lobby, Inc., supra. The Court has expressly cautioned, however, that the clear and convincing evidence standard involved in defamation cases does not materially alter the normal standard for deciding motions for summary judgment. While the issue turns on what the jury could find, and while the court must keep in mind that the jury must base its decision on clear and convincing evidence, the evidence is still construed in the light most favorable to the nonmoving party and the motion is denied if the jury could find in favor of the nonmoving party.

Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on...