Janklow v. Viking Press, 14657

Citation378 N.W.2d 875,12 MediaL.Rep. 1539
Decision Date15 January 1986
Docket NumberNo. 14657,14657
Parties12 Media L. Rep. 1539 William JANKLOW, v. The VIKING PRESS, Peter Matthiessen Dakota News, Inc., d/b/a Cover To Cover; Janet Halligan; Donna Dyer, d/b/a Golden Mountain Books; and Bonnie Retterath,
CourtSupreme Court of South Dakota

Page 875

378 N.W.2d 875
12 Media L. Rep. 1539
William JANKLOW,
The VIKING PRESS, Peter Matthiessen Dakota News, Inc., d/b/a
Cover To Cover; Janet Halligan; Donna Dyer,
d/b/a Golden Mountain Books; and Bonnie
No. 14657.
Supreme Court of South Dakota.
Argued Jan. 9, 1985.
Decided Dec. 11, 1985.
Rehearing Denied Jan. 15, 1986.

Brent A. Wilbur of May, Adam, Gerdes & Thompson, Pierre, Joseph Butler of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, Charles Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiff and appellant.

Martin Garbus of Frankfurt, Garbus, Klein & Selz, P.C., New York City, Gerald L. Reade of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for defendant and appellee The Viking Press.

Franklin J. Wallahan, Rapid City, for defendant and appellee Peter Matthiessen.

Carleton R. Hoy of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellees Dakota News, Inc. d/b/a Cover to Cover, Janet Halligan and Bonnie Retterath.

Gene R. Bushnell of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, Robert G. Mines, Hot Springs, for defendant and appellee Donna Dyer d/b/a Golden Mountain Books.

MORGAN, Justice.

In May of 1983, William J. Janklow, the present governor and former attorney general of South Dakota (Janklow), filed a complaint alleging that Peter Matthiessen (author) and Viking Penquin, Inc. (Viking), as author and publisher respectively, collaborated with the American Indian Movement (AIM), to publish and distribute a book "In the Spirit of Crazy Horse," containing numerous "false and unprivileged statements" about Janklow. 1 The complaint further alleged that the statements were made "with actual malice or reckless disregard for the truth" and that all the libelous statements made against Janklow were "false and untrue" and that the author and Viking "had to entertain serious doubts about the truth of the libelous statements." Janklow claimed that the author and Viking, in failing to examine evidence that was available to them and in failing to disclose the evidence in the book, recklessly disregarded the truth or acted maliciously toward him. Janklow also contended that the reckless disregard for the truth is evidenced by their failure to interview him regarding the veracity of the charges repeated in the book. According to Janklow's complaint, all references to him were edited "in order to present a false and defamatory picture of him."

Janklow's complaint also named a number of bookstore owners and operators, all residents of South Dakota, as defendants and alleged that they "willfully refused to remove the book from the shelves ..." even though he had notified them of its libelous nature. Janklow contends that the "writing, publication, dissemination, sale, distribution and promotion of the book constitutes

Page 877

a single libelous wrong" which holds him up to "public obloquy, ridicule and contempt" and has caused him extreme mental anguish, diminished his standing as a father and husband, and impaired his ability to seek and maintain public office or any other occupation. Janklow claimed actual damages of $4,000,000 and exemplary damages of $20,000,000 and requested a jury trial.

The defendants joined to remove the case to federal district court. After a hearing on Janklow's motion for remand, the case was remanded to a South Dakota Circuit Court on grounds that the validity of the claim against the book sellers presented an issue of state law. Defendants filed motions to dismiss on a number of grounds, including that the complaint failed to state a claim upon which relief could be granted. SDCL 15-6-12(b)(5). By agreement of the parties, any documents that might transform the motion for dismissal into a motion for summary judgment were withdrawn and the trial court purposefully disregarded all extraneous materials, documents, affidavits and other papers submitted by the parties, except those that would properly be considered in a SDCL 15-6-12(b)(5) motion.

Defendants' motions for dismissal were granted by the trial court and an order was entered dismissing the complaint with prejudice and on the merits against all defendants. The trial court's memorandum decision was incorporated in its order of dismissal.

Janklow appeals from the trial court's order dismissing his complaint and sets out three issues: (I) This court should not adopt the neutral reportage doctrine in defamation cases; (II) the publication in question here does not qualify for immunity under the neutral reportage standard; and (III) Article VI, Sec. 5 of the South Dakota Constitution requires that this matter be submitted to a jury for its determination. In our examination of the briefs and after oral argument by the parties, we resolve the appellant's issues into the following: (1) Did the trial court err in granting the defendants' motions under SDCL 15-6-12(b)(5); and (2) is the neutral reportage doctrine applicable in defamation cases in South Dakota?

We will examine the decision in two segments, the first with respect to the author and Viking; the second with respect to the bookstore owners and operators.

We first examine the issue on granting the SDCL 15-6-12(b)(5) motion. A motion under SDCL 15-6-12(b)(5) is identical to a motion under FRPC 12(b)(6). For convenience hereafter, defendants' motions will be referred to as Rule 12(b)(5) motions. We hold that the trial judge did err in granting it.

In its decision, the trial court correctly noted that, for the purposes of the motion, the complaint is construed in the light most favorable to the pleading party, facts "well pled" and not mere conclusions may be accepted as true and doubts are resolved in favor of the pleader. It also noted, "pleadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action as this is a matter of proof, not pleadings. The rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations." Citing 5 C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1357 (1971). The trial court then points out the exception noted in Wright & Miller for traditionally disfavored causes of action such as libel. 2

The trial court then proceeded to examine the pleadings and the text of "In the Spirit of Crazy Horse" apparently as a matter validly incorporated in the complaint

Page 878

by reference. 3 The trial court determined that under the limitations or "constitutional privilege" set out in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Edwards v. National Audubon Society, 556 F.2d 113 (2d Cir.1977), Janklow failed to show that the defendants exceeded the constitutional privilege or that their actions were outside the Sullivan limitation.

This court has previously approved the trial court's grant of a Rule 12(b)(5) motion in libel cases. In Brech v. Seacat, 84 S.D. 264, 170 N.W.2d 348 (1969), we found an absolute privilege in a communication made by a sentencing judge to the Board of Pardons and Parole under the statutory duty of a trial judge concerning clemency. Again, in Janklow v. Keller, 90 S.D. 322, 241 N.W.2d 364 (1976), we likewise found an absolute privilege in a communication made in a judicial proceeding to remove a case to federal court. In Hackworth v. Larson, 83 S.D. 674, 165 N.W.2d 705 (1969), we affirmed a summary judgment granted defendant Secretary of State for a news release which we found to be absolutely privileged in the proper discharge of the official duties of a constitutional officer. In Ruple v. Weinaug, 328 N.W.2d 857 (S.D.1983), we also approved the summary judgment granted defendant, city manager, for a communication to the mayor which we held to be absolutely privileged in the discharge of his official duties. There is no indication that a Rule 12(b)(5) motion was ever presented to the trial court in Hackworth, supra, or Ruple, supra, but it does appear that our holdings approving Rule 12(b)(5) motions have been restricted to libel cases where the defendants enjoy an absolute privilege. The citation of Hackworth and Ruple are not made to suggest that the same is true as regards summary judgment motions. In Uken v. Sloat, 296 N.W.2d 540 (S.D.1980), we approved the grant of summary judgment under a qualified privilege, SDCL 20-11-5(3) communication between interested individuals. An absolutely privileged communication is one for which, by reason of the occasion on which it is made, no remedy is provided for the damages in a civil action or slander or libel. 53 C.J.S. Libel and Slander Sec. 88 (1948). "The difference between a qualified and an absolute privilege is...

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