Hodges v. Oklahoma Journal Pub. Co.

• Decision Date: 24 June 1980
• Docket Number: No. 51397,51397
• Citation: 617 P.2d 191,1980 OK 102
• Parties: 6 Media L. Rep. 1750, 1980 OK 102 Hill HODGES, Appellant, v. OKLAHOMA JOURNAL PUBLISHING COMPANY and Larry Cannon, Appellees.
• Court: Oklahoma Supreme Court

Page 191

617 P.2d 191

6 Media L. Rep. 1750, 1980 OK 102

Hill HODGES, Appellant, v. OKLAHOMA JOURNAL PUBLISHING COMPANY and Larry Cannon, Appellees.

No. 51397.

Supreme Court of Oklahoma.

June 24, 1980.

Rehearing Denied Oct. 14, 1980.

Certiorari to the Court of Appeals, Division No. 2.

Appellant, Hill Hodges, sought to recover damages for alleged libelous articles published by the appellee, Oklahoma Journal Publishing Company, and written, in part, by its reporter, appellee, Larry Cannon. The District Court, Oklahoma County, Honorable William S. Myers, Jr., District Judge, granted summary judgment to appellees. Appellant appealed.

On assignment to the Court of Appeals, Div. No. 2, the judgment of the district court was reversed and the cause remanded for further proceedings. Appellees seek certiorari.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; AND JUDGMENT OF THE DISTRICT COURT AFFIRMED.

B. J. Brockett and John A. Green, Oklahoma City, for appellant.

Kenneth N. McKinney, McKinney, Stringer & Webster, Oklahoma City, for appellees.

IRWIN, Vice Chief Justice.

Appellant, Hill Hodges, a former Oklahoma County license tag agent, brought suit to recover damages alleging that four articles, with accompanying headlines, published by the appellee, Oklahoma Journal Publishing Company, and written in part by its reporter, appellee Cannon, were libelous. The trial court granted summary judgment in favor of the appellees and appellant appealed. On assignment, the Court of Appeals, Division 2, reversed and remanded for further proceedings. Appellees seek certiorari.

The articles in question were published after appellant left his position as tag agent, and occurred over an eighteen-day period during which certain questions were raised concerning appellant's entitlement to various funds which he had collected as tag agent. The first article appeared on August 13th, and was headlined:

"AUDIT TURNS UP TAG SLUSH FUND".

This was followed by a tag-line reading "Report accuses Hodges", and a story discussing questions raised by an audit conducted by the State Examiner and Inspector.

The second article appeared on August 17th, and was headlined:

"DA Awaits Evidence In Tag Agent Audit".

This was followed by a story which said the District Attorney for Oklahoma County would not consider the prosecution of appellant until someone presented "solid evidence" of some offense.

The third article appeared on August 28th, and was headlined:

"AGENT TO PUSH TAG FUND HUNT".

The tag-line stated "Former Official Accused". There followed a story which indicated that the tag agent who replaced appellant was seeking an opinion from the Attorney General as to appellant's entitlement to the disputed funds.

The fourth article appeared on August 31st, and was headlined:

"Ex-Tag Agent to Return Money".

This was followed by a story revealing that appellant had filed a declaratory judgment action seeking to determine ownership of the funds in question, and had agreed to deposit approximately $55,000.00 with the court clerk pending the results of the action.

Appellees filed a motion for summary judgment and attached Cannon's affidavit in which he affirmed that he had written the articles in good faith, naming the sources upon which he had relied. Appellees argued appellant was a "public official" who was required to show that the publications were made with "malice", i. e., with knowledge of falsity or in reckless disregard of the truth. Appellant responded with his own affidavit stating that the "slush fund" headline was not true, and that nothing in the audit of the State Examiner and Inspector revealed such a "fund", which appellant defines as one used "for bribery or corruptive propaganda." In addition he attached other affidavits and documents attesting to the accuracy of a copy of the audit, and a press release issued after the audit by the Examiner and Inspector. He argues that he was not a "public official" and was therefore not required to show "malice", and in any event, "malice" was shown by sufficient evidence to prevent summary judgment. The trial court, in a written opinion, determined that appellant was a "public official" and was required to show "malice" in order to recover. Determining that the evidentiary materials presented showed no controversy as to these material issues, the trial court granted summary judgment to the appellees, and this appeal followed.

Appellant's "status" is relevant in determining the standard by which appellees' actions must be measured. Since New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), it has been clear that in order for a "public official" to recover for defamation he must demonstrate that publication was with "actual malice", i. e., with knowledge of the falsity of the statement, or in reckless disregard of the truth. Query: Is appellant a "public official"? Appellees insist, and the trial court found, that appellant is a "public official". On the other hand, appellant argues there is at least a jury question concerning his "status", and summary judgment was improper.

Whether appellant was a "public official" within New York Times may not be determined by reference to state-law standards. States have developed definitions of "public officials" for local administrative purposes, not for purposes of a national constitutional question. The standards that set the scope of constitutional protection afforded free expression may not vary between states. The "public official" designation within New York Times

"... applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs." Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966).

In Johnston v. Corinthian Television Corporation, Okl., 583 P.2d 1101 (1978) we held that a physical education teacher, who was also an elementary wrestling coach, met the government "employee" test, and said:

"A person may become a public official within contemplation of the New York Times rule in either of two ways. First, as that case itself illustrates, he may be an elected official, and the alleged libel must relate to his official capacity. Second, as the Court held in Rosenblatt v. Baer, he may be a government employee with such responsibility that the public has an independent interest in his position and performance, and the alleged libel must relate to his official capacity."

Clearly, appellant is not an elected official, and any designation of him as a "public official" must be based upon the approach recognized in Rosenblatt, supra. It is not denied that as tag agent appellant held a position of substantial public impact, and had duties which involved the collection and accounting for substantial amounts of public funds, as well as administering an area of the law which affected practically every citizen of Oklahoma County, the area in which he served.

Despite this broad range of public duties and responsibilities and the impact his performance of those duties had upon the public, appellant contends he was not a "public official" or government "employee" but an "independent contractor" and the "public official" standard adopted in New York Times would not be applicable to him.

The phrase "governmental employee" as used in the test articulated in Rosenblatt was not intended to limit it to those individuals who have a traditional "employee-employer" relationship with a governmental unit. It extends to those who have, or appear to have, substantial responsibility for or control over the conduct of governmental affairs and the alleged libel must relate to this official capacity. The trial court properly determined that appellant was a "public official" within New York Times.

The next issue relates to the published articles and whether the trial court erred in rendering summary judgment in favor of appellees. Under the mandate of New York Times it is an incumbent upon this court to consider the law and to make an independent evaluation of the record to insure the constitutional protection of the First Amendment.

This controversy centers around the import of the headlines and whether the headlines may be read apart from the stories which followed. Appellant contends that the headlines, particularly the "slush fund" headline, convey ideas to the readers which are completely separate from the information contained in the stories. Appellant...