Herron v. KING Broadcasting Co.
Decision Date | 03 December 1987 |
Docket Number | No. 52342-8,52342-8 |
Citation | 746 P.2d 295,109 Wn.2d 514 |
Court | Washington Supreme Court |
Parties | , 14 Media L. Rep. 2017 Don HERRON and Patricia Herron, husband and wife, Appellants, v. KING BROADCASTING COMPANY, d/b/a King TV Channel 5, et al., Respondents. |
Rovai, McGoffin, Turner, Larkin & Miller, John A. Miller, Tacoma, for appellants.
Riddell, Williams, Bullitt & Walkinshaw, Stephen E. DeForest, Seattle, for respondents.
Appellants appeal the summary judgment dismissal of their defamation action. We hold that the story that respondents broadcast in the early evening newscast of December 1, 1978 was materially false, and that appellants presented sufficient evidence for a trial on the issue of actual malice. We reverse.
The background of this case was a racketeering scandal of proportions unprecedented in this state which attracted intensive media attention. On November 28, 1978 the Pierce County Sheriff and seven others were arrested on racketeering charges. In connection with those charges, there was a federal probe into a series of Pierce County arson fires. In addition to those stories, the media reported that a local bail bondsman and one of the persons arrested, Lamont Zemek, had been vacationing earlier that month with a local district court judge and the Prosecuting Attorney of Pierce County, Don Herron. Herron had practiced law in both the public and private sectors since March 1959, until he was elected as Pierce County Prosecuting Attorney in 1975. Before the racketeering scandal, and the news broadcast linking him to that scandal which is the subject of this lawsuit, Herron had never come under scrutiny by the local or Washington State Bar Associations.
Respondent Don McGaffin was a news reporter with KING Broadcasting Company, better known as KING TV Channel 5. On December 1, 1978, McGaffin wrote and broadcast on KING TV a story that is the subject of the instant suit.
Sometime in mid- to late-November 1978, McGaffin had received an anonymous telephone call stating that the Pierce County Prosecutor's Office was under investigation by the FBI for improper bail bond procedures. McGaffin tried to contact Herron, by phone and in person, but was unable to obtain an interview. During a visit to the prosecutor's office he had a brief discussion with Deputy Prosecutor Terry Sebring, who confirmed that the office was under investigation by the FBI regarding bail bond forfeitures. Sebring would not give more information, however, due to the continuing investigation. McGaffin's response was very hostile. Sebring swore in an affidavit as follows:
McGaffin then stepped very close within a foot of me with his face showing of anger and said, "You mean to tell me that you will not talk to me about bail bond procedures even in general?" I replied,
He then said, I replied, "You are asking me a question I am not discussing further." He then said with his face close to mine and lowered his voice, .
Clerk's Papers at 262-63. McGaffin's hostility was corroborated by witnesses to the scene, reporter Barbara Anderson and receptionist Maria Chantrey, who heard McGaffin's loud "parting shot": "Watch the (evening) news, Sebring". McGaffin denies any threat or animosity toward Herron.
McGaffin next interviewed the Pierce County Superior Court Clerk, who supplied statistics on bail bond forfeitures collected from local bondsmen. McGaffin also spoke briefly with at least one Pierce County judge about bond forfeitures.
McGaffin contacted former Pierce County Prosecutor Ron Hendry, and one of Hendry's former deputies, Douglas McBroom. In an election characterized as "unusually bitter," Herron had defeated Hendry in 1974. McGaffin claims that they discussed bail bond forfeiture procedures as well as the contributions made by bail bondsmen to Don Herron's 1974 campaign, and that one of the two told him that approximately half of Herron's 1974 campaign contributions originated from bail bondsmen.
Neither Hendry nor McBroom believes he made such a statement. Although he remembers a discussion with McGaffin, Hendry cannot specifically recall whether they discussed bail bonds or bail bondsmen's contributions to Herron's campaign. Hendry was certain, however, that he did not tell McGaffin that "approximately half" of Herron's contributions came from bail bond interests because he knew otherwise. Hendry testified in a deposition as follows:
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.
McBroom similarly does not remember the topic of his conversation with McGaffin. Although he testified candidly that he had no specific recollection of whether or not he told McGaffin that Herron had raised a $120,000 campaign fund, he stated, Answering a question as to whether he told McGaffin or other reporters that over half or approximately half of Herron's campaign contributions came from bail bond interests, McBroom responded similarly: "I don't think that I probably, I'm sure I didn't know."
McGaffin also looked at the Public Disclosure Commission's campaign contribution reports for Herron. The reports list contributors by name, and state the amount contributed next to each name. The reports reveal that the total contributions for Herron's 1974 campaign were approximately $38,000, of which only $825 was contributed by bondsmen. McGaffin could not have determined that approximately half of Herron's campaign contributions came from bail bondsmen from those reports.
McGaffin wrote a story which he read during the 5:30 p.m. newscast on December 1, 1978. It stated:
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 Zemek, 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 bondsman 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.
The allegations in the story that a bondsman had "heavily contributed" to Herron's campaign in 1974 "and again in 1978," and that bail bondsmen "contributed approximately half of all campaign money collected by Don Herron ..." are conceded to be false. The innuendo in the story that Herron was involved in the racketeering scandal and was not collecting bond forfeitures because his friends and campaign contributors were bail bondsmen is also false.
The story was rewritten and read again by a different broadcaster on the 11 p.m. newscast that same evening. Although the content was similar, this report included a statement that...
To continue reading
Request your trial-
Moe v. Wise
...toward the truth of the statement at issue." Story, 52 Wash.App. at 343, 760 P.2d 368 (citing Herron v. KING Broadcasting Co., 109 Wash.2d 514, 523, 746 P.2d 295 (1987) (Herron I); Tilton v. Cowles Publ'g Co., 76 Wash.2d 707, 722, 459 P.2d 8 (1969)). "To prove actual malice a party must est......
-
Valdez-Zontek v. Eastmont School Dist.
...entertained serious doubts as to its truth. Id. Instruction No. 20 also comported with Washington law. See Herron v. KING Broad. Co., 109 Wash.2d 514, 523, 746 P.2d 295 (1987); Story v. Shelter Bay Co., 52 Wash.App. 334, 341-42, 760 P.2d 368 ¶ 36 The District argues for the first time on ap......
-
Duc Tan, of Thurston Cnty., Corp. v. Le
...he was not, the broadcast caused a sting beyond what the truth would have. Id. at 770, 776 P.2d 98 (quoting Herron v. KING Broadcasting Co., 109 Wash.2d 514, 523, 746 P.2d 295 (1987)). ¶ 42 Relying on these two cases, defendants argue that the sting of the publications is the charge of bein......
-
Momah v. Bharti
...Supreme Court adopted and applied the single publication rule of Restatement (Second) of Torts § 577A in Herron v. KING Broadcasting Co., 109 Wash.2d 514, 521, 746 P.2d 295 (1987). The rule "states that any one edition of a book or newspaper, or any one radio or television broadcast, is a s......