Madison v. Yunker, 13741

• Decision Date: 16 October 1978
• Docket Number: No. 13741,13741
• Citation: 589 P.2d 126,35 St.Rep. 1311,180 Mont. 54
• Parties: , 4 Media L. Rep. 1337 A. P. MADISON, Plaintiff and Appellant, v. Carey Matovich YUNKER, Individually and as Editor of the Montana Kaimin, the University of Montana Student Newspaper, The Montana Kaimin, et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 126

589 P.2d 126

180 Mont. 54, 4 Media L. Rep. 1337

A. P. MADISON, Plaintiff and Appellant, v. Carey Matovich YUNKER, Individually and as Editor of the Montana Kaimin, the University of Montana Student Newspaper, The Montana Kaimin, et al Defendants and Respondents.

No. 13741.

Supreme Court of Montana.

Submitted May 5, 1978.

Decided Aug. 31, 1978.

Rehearing Denied Oct. 16, 1978.

Boone, Karlberg & Haddon, Missoula, Sam E. Haddon (argued), Missoula, for appellant.

Carlton & Stephens, Billings, Herron & Meloy, Helena, Peter M. Meloy (argued), Helena, Bruce B. Barrett (argued), Missoula, Richard Volinkaty (argued), Missoula, Garlington, Lohn & Robinson, Missoula, Gary Graham (argued), Missoula, for respondents.

Brinton Markle, Helena, amicus curiae.

DALY, Justice.

Plaintiff appeals from the order of the District Court, Missoula County, granting defendants' motion to dismiss plaintiff's cause of action for libel and from the entry of judgment for defendants.

The present cause of action arose out of a purported libelous publication written by defendant Carey Matovich Yunker (Yunker) and published in the October 8, 1974 edition of the Montana Kaimin, the University of Montana student newspaper. In pertinent part the editorial states:

" * * * One of the memos is from Al Madison. His position, director of the University print shop, alone makes anything he would say on the matter suspect. As well, he is a congenital liar, an incompetent whose own operation has lost $103,914.89 in the last four years. * * * "

On December 9, 1974, Madison filed a complaint against defendants in the District Court alleging defendant Yunker, acting in her capacity as editor of the Montana Kaimin, deliberately and maliciously libeled plaintiff by publishing false defamatory statements. Plaintiff pleaded noncompliance with section 64-207.1, R.C.M.1947, (Montana's retraction statute) on the grounds that section is unconstitutional and the purported libel was not within the scope of section 64-207.1.

Madison prayed for judgment in his favor and an award of special, general, and punitive or exemplary damages in the aggregate amount of $102,000.

On December 30 and 31, 1974, defendants filed motions to dismiss Madison's complaint, pursuant to Rule 12(b), M.R.Civ.P., on the grounds the complaint failed to state a claim upon which relief could be granted and the District Court lacked jurisdiction over parties in a libel action until Madison complied with section 64-207.1. The University of Montana's motion to dismiss was based upon the additional ground that no claim had been filed against the University of Montana pursuant to section 82-4312, R.C.M.1947.

On January 31, 1975, Madison filed a motion to defer consideration of matters raised in the consolidated motion of the University of Montana pending final determination of the constitutionality of section 64-207.1. Madison and the University of Montana stipulated that the resolution of the constitutionality of section 64-207.1 was a condition precedent to the maintenance of any action for libel.

On May 29, 1975, the District Court heard oral argument on defendants' separate motions to dismiss. Briefs in support of and in opposition to the motions to dismiss were filed by the parties. On December 22, 1976, the District Court issued an order granting defendants' motions to dismiss on the grounds section 64-207.1 is constitutional under the 1972 Montana Constitution and Madison failed to demand a retraction pursuant to section 64-207.1, defendants being entitled to " * * * an opportunity to publish a retraction to mitigate actual or compensatory damages, if any." Judgment was accordingly entered for defendants.

The issues presented for review, as stated by appellant Madison, are:

1. Does section 64-207.1, R.C.M.1947, requiring a demand for retraction as a prerequisite to an action for libel, impose unconstitutional restraints upon personal liberties and rights guaranteed by Article II, 1972 Montana Constitution and the due process provision of the Fourteenth Amendment to the United States Constitution?

2. Does section 64-207.1, R.C.M.1947, have any application in a libel action founded upon publication of an obvious intentional falsehood?

We are handed for determination a classic confrontation between basic and treasured constitutional rights, the freedom of speech and press guaranteed under the First Amendment of the United States Constitution, on the one hand, and the rights of an individual to be secure from defamation on the other. The pivotal determination we must make is the constitutional validity of section 64-207.1. For on that determination, all else in this case depends. It requires, as we said in Granger v. Time, Inc. (1977), Mont., 568 P.2d 535, 541, 34 St.Rep. 983, a " * * * careful balancing of the First Amendment freedoms of speech and press, and the personal dignity interests underlying the law of defamation".

At the outset, we set out in full the statute which is under attack:

"64-207.1. Notice in writing to publisher of libelous or defamatory matter opportunity to correct defense and mitigation of damages. Before any civil action shall be commenced on account of any libelous or defamatory publication in any newspaper, magazine, periodical, radio or television station, or cable television system, The libeled person shall first give those alleged to be responsible or liable for the publication a reasonable opportunity to correct the libelous or defamatory matter. Such opportunity shall be given by notice in writing specifying the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The notice may also state the sources, if any, from which the true facts may be ascertained with definiteness and certainty. The first issue of a newspaper, magazine or periodical published after the expiration of one week from the receipt of such notice shall be within a reasonable time for correction. In the case of radio and television stations and cable television systems a broadcast made at the same time of day as the broadcast complained of and of at least equal duration, which is made within seven (7) days following receipt of such notice shall be within a reasonable time for correction. To the extent that the true facts are, with reasonable diligence, ascertainable with definiteness and certainty, only a retraction shall constitute a correction; otherwise the publication of the libeled person's statement of the true facts, of so much thereof as shall not be libelous or another, scurrilous, or otherwise improper for publication, published as his statement, shall constitute a correction within the meaning of this section. If It shall appear upon trial that the publication was made under honest mistake or misapprehension, then a correction, timely published, without comment, in a position and type as prominent as the alleged libel, or in a broadcast made at the same time of day as the broadcast complained of and of at least equal duration, Shall constitute a defense against the recovery of any damages except actual damages, as well as being competent and material in mitigation of actual damages to the extent the correction published does so mitigate them." (Emphasis added.)

The pertinent part of the Fourteenth Amendment to the United States Constitution reads:

" * * * No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

Article II, 1972 Montana Constitution, has several sections which are pertinent to or have some significance in this case:

"Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.

"Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

" * * *exe

"Section 7. Freedom of speech, expression, and press. No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.

" * * * In

"Section 16. The administration of justice. Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, Or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen's Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.

"Section 17. Due process of law. No person shall be deprived of life, liberty, or property without due process of law." (Emphasis supplied.)

It will be noted that several of the foregoing provisions of the Montana Constitution repeat or restate like provisions in the United States...