Lockett v. Garrett

• Decision Date: 10 June 1999
• Docket Number: No. 98CA0589.,98CA0589.
• Citation: 1 P.3d 206
• Parties: Michael M. LOCKETT, Kathryn J. Achatz, and Lee McMahon, Plaintiffs-Appellants, v. Edith GARRETT, Frances Roe, and Leslie M. Heiman, Defendants-Appellees.
• Court: Colorado Court of Appeals

1 P.3d 206

Michael M. LOCKETT, Kathryn J. Achatz, and Lee McMahon, Plaintiffs-Appellants, v. Edith GARRETT, Frances Roe, and Leslie M. Heiman, Defendants-Appellees.

No. 98CA0589.

Colorado Court of Appeals, Div. III.

June 10, 1999.

John M. Cogswell Law Offices, Michael J. Heaphy, Buena Vista, Colorado, for Plaintiffs-Appellants.

Robert D. Conover, Buena Vista, Colorado, for Defendants-Appellees.

Opinion by Judge MARQUEZ.

In this action for defamation based on statements in recall petitions, plaintiffs, Michael M. Lockett, Kathryn J. Achatz, and Lee McMahon, appeal from the summary judgment and award of attorney fees entered in favor of defendants, Edith Garrett, Frances Roe, and Leslie M. Heiman. Plaintiffs also appeal the court's order denying their motion for attorney fees. We affirm in part, vacate in part, and remand with directions.

In May 1996, plaintiff Lockett was the mayor of the town of Buena Vista, plaintiffs McMahon and Achatz were members of the Board of Trustees of Buena Vista, and each of the defendants was a resident of Buena Vista.

Shortly before May 2, 1996, all of the defendants submitted three separate petitions to recall the plaintiffs. These petitions were initially approved on that date, but were subsequently rejected on June 6, 1996. The grounds for recall in the petitions, as stated in the summary judgment, were as follows:

Michael Lockett: Failing to properly represent the citizens of the Town of Buena Vista, Colorado; specifically violation(s) of the Open Meeting Law, and refusal to be accountable to the citizens of the Town of Buena Vista, Colorado.

Lee McMahon: Failing to properly represent the citizens of the Town of Buena Vista, Colorado; specifically violation(s) of the Open Meetings Law, interfering with the day-to-day operations of Town departments by conspiring with employees against department heads.

Kathryn Achatz: Failing to properly represent the citizens of the Town of Buena Vista, Colorado; specifically violation(s) of the Open Meetings Law, interfering with the day-to-day operations of Town department (sic) by conspiring with employees against department heads.

On May 2, 1996, plaintiffs filed a complaint alleging claims for defamation on grounds that defendants had asserted violations of the open meetings law. Plaintiffs McMahon and Achatz also alleged that the statements that they had interfered with the day-to-day operations of the Town by conspiring with employees against department heads were defamatory.

Defendants refiled new petitions essentially setting forth the same grounds. These petitions were approved on June 6, 1996, and were declared sufficient to schedule an election. Plaintiffs were recalled in an election held on September 17, 1996.

In their answer, defendants denied plaintiffs' allegations of defamation, raised affirmative defenses, and asserted four counterclaims, including one for attorney fees pursuant to § 13-17-101, et seq., C.R.S. 1998.

Subsequently, defendants filed a motion for partial summary judgment asserting, among other things, qualified privilege under the First Amendment, lack of actual malice, that the statements constituted petitioning activity under the First Amendment, and qualified privilege in a petitioning activity under Colorado law. Ruling that defendants' statements were opinions, the trial court granted defendants' motion and dismissed plaintiffs' claims.

The trial court also awarded attorney fees to defendants pursuant to § 13-17-101, dismissed defendants' counterclaims, and denied plaintiffs' request for attorney fees. This appeal followed.

I.

Plaintiffs contend that the trial court erred in determining that the allegedly defamatory statements in defendants' recall petitions were statements of opinion and by dismissing plaintiffs' claims. We conclude that plaintiffs' claims were properly dismissed. Under C.R.C.P. 56(c), summary judgment is proper only when the pleadings, affidavits, depositions, or admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Civil Service Commission v. Pinder, 812 P.2d 645 (Colo.1991).

Because the threat of protracted litigation could have a chilling effect upon constitutionally protected rights of free speech, summary judgment is particularly appropriate in defamation actions. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980); see Seible v. Denver Post Corp., 782 P.2d 805 (Colo. App.1989).

Defamation is a communication that holds an individual up to contempt or ridicule thereby causing him or her to incur injury or damage. Keohane v. Stewart, 882 P.2d 1293 (Colo.1994).

Whether allegedly defamatory language is constitutionally privileged is a question of law, and a reviewing court must review the record de novo to insure that the trial court's judgment does not constitute a forbidden intrusion on the field of free expression. NBC Subsidiary (KCNC-TV), Inc. v. Living Will Center, 879 P.2d 6 (Colo. 1994); Arrington v. Palmer, 971 P.2d 669 (Colo.App.1998).

The common law tort of defamation only requires the plaintiffs to prove defendant's publication of a defamatory statement by a preponderance of the evidence. A defendant may then prove truth as an affirmative defense. In contrast, if a public figure or a matter of public concern is involved, a heightened burden applies and plaintiff is required to prove a statement's falsity by clear and convincing evidence rather than a preponderance. Smiley's Too, Inc. v. Denver Post Corp., 935 P.2d 39 (Colo.App.1996).

A public figure can recover damages for a defamatory statement concerning his or her conduct only by presenting clear and convincing proof that the statement was made with actual malice, that is, with knowledge that it was false or with reckless disregard of whether it was true or false. A showing of reckless disregard requires sufficient evidence to demonstrate that the defendant in fact entertained serious doubts as to the truth of the published statement. Pierce v. St. Vrain Valley School District RE-1J, 944 P.2d 646 (Colo.App.1997).

Whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law. Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).

A.

Here, in granting defendants' motion, the trial court stated that it must decide whether the alleged defamatory assertions were protected because they were statements of opinion and then applied the two-step procedure set forth in Keohane v. Stewart, supra, for its analysis.

In Keohane, the court addressed statements made by a city councilman to a news reporter and letters written by an individual which appeared under assumed names in a local weekly newspaper. Citing to Milkovich v. Lorain Journal Co., supra, the supreme court noted that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation, or which cannot reasonably be interpreted as stating actual facts about an individual, continues to receive full constitutional protection.

Reasoning from that premise, the court ruled that, to determine if a statement is protected, the first inquiry is whether the statement is sufficiently factual to be susceptible of being proved true or false. The second inquiry is whether reasonable people would conclude that the assertion is one of fact. The factors relevant to the second inquiry are: (1) how the assertion is phrased; (2) the context of the entire statement; and (3) the circumstances surrounding the assertion, including the medium through which the information is disseminated and the audience to whom the statement is directed.

Applying that test here, the trial court determined that the statements were sufficiently factual to be susceptible of being proved true or false. It then considered whether reasonable people would conclude that the assertions are assertions of fact as opposed to statements of opinion. It concluded that the statements were phrased in a statutorily permitted recall petition, that they were stated as reasons for recall, and that they were disseminated within the petition process to the citizens of the Town of Buena Vista for their consideration.

Reasoning that defendants' statements were the opinions of dissatisfied citizens, the trial court concluded that no reasonable person could conclude, in this context, that these assertions were anything more than political opinion as opposed to assertions of fact. Because the statements were the opinions of defendants, plaintiffs could not prevail, and the motion for summary judgment was granted.

We agree with the trial court's analysis and determination that no reasonable person could conclude that the assertions were anything more than political opinion as opposed to assertions of fact.

All parties agree that the recall petitions were the result of dissatisfaction of citizens of the Town of Buena Vista. See Bernzen v. City of Boulder, 186 Colo. 81, 525 P.2d 416 (1974) (dissatisfaction of electorate official basis for recall). To remedy this dissatisfaction, as plaintiffs conceded in their brief in opposition to the motion for summary judgment, defendants participated in petitioning activities that fall within the First Amendment. See also Groditsky v. Pinckney, 661 P.2d 279 (Colo.1983) (power of recall is fundamental right).

To recall plaintiffs, defendants had to comply with § 31-4-502, C.R.S.1998. The deposition testimony of defendants and others, including the former town administrator, indicated that the decision to reappoint the town administrator and police chief had been made by defendants and others before the town's regular public meeting. That evidence indicates that defendants' petitioning activities are supportable by reasonable facts and had a cognizable basis in law.

Further, plaintiffs have failed to submit sufficient evidence to prove with...