Manuel v. Fort Collins Newspapers, Inc.

• Decision Date: 05 April 1979
• Docket Number: No. 77-746,77-746
• Citation: 599 P.2d 931,42 Colo.App. 324
• Parties: , 4 Media L. Rep. 2558 William MANUEL, Plaintiff-Appellee, and Cross-Appellant, v. FORT COLLINS NEWSPAPERS, INC., a Colorado Corporation, Stephanie Brown, Larry Steward and Jerry Sharpnack, Defendants-Appellants, and Cross-Appellees. . III
• Court: Colorado Court of Appeals

Page 931

599 P.2d 931

42 Colo.App. 324, 4 Media L. Rep. 2558

William MANUEL, Plaintiff-Appellee, and Cross-Appellant, v. FORT COLLINS NEWSPAPERS, INC., a Colorado Corporation Stephanie Brown, Larry Steward and Jerry Sharpnack, Defendants-Appellants, and Cross-Appellees.

No. 77-746.

Colorado Court of Appeals, Div. III.

April 5, 1979.

Rehearing Denied April 26, 1979.

Certiorari Granted Aug. 27, 1979.

Tucker, Stuelpnagel & Brown, William E. Tucker, Denver, for plaintiff-appellee and cross-appellant.

Hill & Hill, Alden V. Hill, Fort Collins, for defendants-appellants and cross-appellees.

VanCISE, Judge.

This libel action was brought by William Manuel, a public official, against Fort Collins Newspapers, Inc., which published the Fort Collins Coloradoan, the Coloradoan's editor, Jerry Sharpnack, and two of its reporters, Stephanie Brown and Larry Steward. Manuel sought damages for allegedly false and defamatory statements appearing in three articles written by Brown and Steward, one article written by Brown alone, and three editorials authored by Sharpnack. Defendants denied that the statements were false or defamatory, and, among other defenses, contended that they were substantially true, that some of the statements constituted fair comment, and that the statements were privileged under the First Amendment and were made without "actual malice."

Defendants appeal from a denial of their motions for summary judgment prior to and for directed verdicts during trial, from judgment entered on a jury verdict in favor of Manuel for $100,000 actual damages, and from a denial of their motion for judgment notwithstanding the verdict or for a new trial. Manuel cross-appeals, but asks merely for affirmance of the judgment. We reverse.

The undisputed facts are that in 1971 Larimer County acquired a computer system and housed it in the basement of the county courthouse. Commencing in April 1972, the City of Fort Collins paid to the county $2400 monthly for the use of 20% Of the computer time. Manuel was the county commissioner responsible for the operation of the county computer system from the time it was installed. He resigned as a commissioner in March 1974 and was appointed director of computer services for Larimer County. He was serving in this capacity when the newspaper articles were published.

In September 1973, while a county commissioner and in charge of the county computer system, Manuel, under the name "Larimer County Data Services," signed a $3500 contract with the City of Fort Collins to perform work for it on the computer, correlating some city housing survey data with information available in the county assessor's office. Utilizing the computer and a portable terminal owned by the county and installed in his home, Manuel performed the work. A $3500 check payable to "Larimer County Data Services" was delivered to Manuel in December 1973 and was deposited in his personal checking account. Additional computer work for the city was arranged for by Manuel in the name of "Larimer County Data Services," and in March 1974 a check was written by the city payable to that firm.

The articles and editorials in question were published during the period April 24 through May 9, 1974. The statements claimed to be false and defamatory are set forth in full text in the appendix to this opinion. Basically, they charged that Manuel, while a county official, used the county computer for personal gain.

The First Amendment has been interpreted to prohibit a public official or a public figure from recovering in a defamation suit unless he proves by "clear and convincing" evidence that a false and defamatory statement of fact was published concerning him by a defendant who, at the time of publication, knew that the statement was false or made it "with reckless disregard of whether it was false or not." Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). By these decisions, § 13-25-127(1), C.R.S.1973, does not apply to public official/public figure defamation cases.

Clear and convincing" proof is greater than a mere preponderance. Gertz, supra; New York Times, supra; Whatley v. Wood, 157 Colo. 552, 404 P.2d 537 (1965). It requires proof which is "clear, precise and indubitable," Huber v. Boyle, 98 Colo. 360, 56 P.2d 1333 (1936), " unmistakable and free from serious or substantial doubt," C.J.I. 3:2, "proof which persuades the trier of fact 'that the truth of the contention is highly probable.' " Page v. Clark, Colo., 592 P.2d 792 (1979).

There can be no recovery for statements that are mere expression of opinion. There is "no such thing as a false idea." Gertz v. Robert Welch, Inc., supra.

Reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Failure to investigate, Curtis, supra; Beckley Newspaper Corp. v. Hanks, 389 U.S. 81, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967), or mere negligence on the part of the reporter or publisher are "constitutionally insufficient to show the recklessness that is required." New York Times, supra; Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Walker v. Colorado Springs Sun, Inc.,, 188 Colo. 86, 538 P.2d 450 (1975).

The above standards are applied in the first instance by the trial court. Unless the court determines, on the basis of admissions in the pleadings, affidavits, depositions, answers to interrogatories and to request for admissions, and any other evidence offered, that the plaintiff can sustain his burden under those standards, it should grant summary judgment for the defendant. Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970).

In the ordinary civil case a summary judgment is unusual and is not granted if there is a genuine issue as to any material fact. However, in a public official or public figure defamation case, where the plaintiff has such a heavy burden of persuasion, summary judgments are frequently granted because "such an expeditious disposition of the action affords the best protection to the constitutional privilege." Adams v. Frontier Broadcasting Co., 555 P.2d 556 (Wyo.1976).

"(T)he decisions of the United States Supreme Court have added a new facet, measurement, or dimension which must now be considered and resolved by the trial courts. In other words, (in defamation actions by public officials), if the trial judge at the summary judgment stage determines that the plaintiff has offered evidence of a sufficient quantum to establish a prima facie case, and the offered evidence can be equated with the standard or test of "convincing clarity" prescribed by United States Supreme Court decisions, the motion for summary judgment should be denied." Chase v. The Daily Record, Inc., 83 Wash.2d 37, 515 P.2d 154 (1973).

"(I)n order for plaintiff to be successful on the threshold issue of summary judgment, he must come forth with strong evidence, convincingly clear evidence, that the defendant either knew the statements published were false or that he had reckless disregard of whether they were false or not. Otherwise, if plaintiff is allowed to escape summary judgment by simply a minimum showing, he has thus effectively invoked the 'chilling effect of trial' doctrine." Kidder v. Anderson, 354 So.2d 1306 (La.1978).

On appeal of a case such as this, involving a First Amendment issue, we must make a De novo review of the entire record to determine whether the evidence is constitutionally adequate to sustain the judgment whether liability was supported with "convincing clarity" "so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression." New York Times, supra; Walker, supra.

Applying the above standards to the showing made at the time of the hearing on the defendants' renewed summary judgment motion, we are compelled to conclude that the defendants' motion should have been granted and that this case should never have been tried or submitted to the jury.

The challenged factual statements pertained to Manuel's use of the county's computer equipment and facilities for personal gain while he was a county official. From these statements, the writer had expressed the opinion that Manuel was guilty of a conflict of interest as well as unethical conduct.

There was no dispute that he was a county official at the time, or that he received the money. However, Manuel claimed, according to both his affidavit and his deposition, that he had told the reporters prior to the publication of various articles and editorials that there was nothing improper in what he had done. Specifically, he had advised the reporters that the city had hired him in his private capacity to write a program for the computer which would correlate information obtained by city employees in a survey of property owners with information which the assessor's office had accumulated. Manuel also explained that it was unnecessary to use a computer in writing this program, and that, in any event, the county was not entitled to any compensation for computer time because the city paid $2,400 each month for approximately 20% Use and ownership of the computer. Manuel advised the reporters that the private firm was formed simply for the purpose of compensating Manuel and other county employees in the computer department for many hours of overtime work. On the basis of this explanation to...