Margoles v. Hubbart

• Decision Date: 15 July 1988
• Docket Number: No. 53737-2,53737-2
• Court: Washington Supreme Court
• Parties: , 16 Media L. Rep. 1196 Neil MARGOLES, Respondent, v. James HUBBART and Sherry Hubbart, husband and wife; Newport Publications, Inc., a corporation, Petitioners, Bettyjane Hillestad, Defendant.

Page 195

111 Wn.2d 195

760 P.2d 324, 16 Media L. Rep. 1196

Neil MARGOLES, Respondent, v. James HUBBART and Sherry Hubbart, husband and wife; Newport

Publications, Inc., a corporation, Petitioners,

Bettyjane Hillestad, Defendant.

No. 53737-2.

Supreme Court of Washington,

En Banc.

July 15, 1988.

Witherspoon, Kelley, Davenport & Toole, Duane Swinton, Michael Currin, Spokane, for petitioners.

Powell & Morris, Brian Balch, Spokane, for respondent.

ANDERSEN, Justice.

FACTS OF CASE

This defamation case involves a public official plaintiff and news media defendants. At issue is whether the evidence presented at the summary judgment stage of the case raised a triable issue of fact on the element of actual malice.

The plaintiff, Neil Margoles, was port manager of the Port District of Pend Oreille from November 1, 1978 until his resignation on March 31, 1982. On December 17, 1981, December 24, 1981 and April 8, 1982, the Newport Miner, a Newport, Washington newspaper, published articles by reporter James Hubbart that were highly critical of the port manager and the financial affairs of the port district. The articles dealt with the results of a port district audit conducted by the state auditor.

The December articles were based on a preliminary audit report not generally available to the public. The April 8th article was based on the final and public audit report issued April 2, 1982. Among other things, the final report discussed "deficiencies" in the port manager's claims for reimbursement of travel and promotional hosting, and the salary he received for time he had spent working as a consultant for the Port of Beverly-Royal Slope. This audit report had bluntly declared that "[t]he deficiencies noted were the result of the manager failing to comply with State statutes and local regulations."

The port manager sued the reporter and his marital community, as well as the newspaper publisher, Newport Publications, Inc. For convenience, we will collectively refer to these defendants as "the newspaper" and the plaintiff as The port manager takes issue with a rather broad array of statements contained in the three newspaper articles. Those which he apparently considers to be particularly defamatory are those portions of the articles stating or suggesting that he: (1) made unauthorized private use of the port's vehicle; (2) submitted a letter of resignation on condition that he be held blameless for improprieties in the port's internal affairs; (3) received funds "funneled" to him through a company owned by his wife; (4) "misappropriated" $294 in port funds; and (5) charged the port district for time spent working for another port district.

"the port manager" even though he no longer occupies that position. Although the port manager also named Bettyjane Hillestad, the Pend Oreille County Auditor and the source of some of the information in the articles as a defendant, she is not a party to this appeal.

The newspaper moved for summary judgment on the issue of liability. The trial court declined to dismiss the port manager's action outright. The trial court did, however, grant partial summary judgment in favor of the newspaper to the extent that it ruled the port manager was a public official during his tenure as port manager, a ruling which is not here questioned. The newspaper sought discretionary review in the Court of Appeals. That court granted review and in a published opinion affirmed the general denial of a summary judgment. ¹ Relying on the alleged hostility between the reporter who wrote the articles and the port manager, and on the articles' use of the words "funneled" and "misappropriated" to describe transactions concerning the port manager, the Court of Appeals held that there was an inference creating a material issue of fact as to whether the statements were published with actual malice. ² We granted discretionary review.

One ultimate issue is presented.

ISSUE

In this defamation suit, did the Court of Appeals err when it upheld the trial court's ruling generally denying the newspaper's motion for summary judgment?

DECISION

CONCLUSION. We conclude that the Court of Appeals did err in ruling that the use of the words "funneled" and "misappropriated", combined with the claimed hostility between the reporter and the public official, created a material issue of fact as to whether the newspaper published the statements in question with knowledge of their falsity, or with reckless disregard of whether they were false or not. Viewing the evidence in the light most favorable to the port manager, as we do, we nevertheless hold that on the record presented no rational trier of fact could find "clear and convincing evidence" that the articles under scrutiny were made with actual malice, as is required in order to establish a prima facie defamation cause of action.

The determinative law is now well settled in this state. In order to establish a prima facie defamation case, a plaintiff must show falsity, an unprivileged communication, fault and damages. ³ When the plaintiff is a public official, as here, the fault to be proved is "actual malice". ⁴ In this context, "actual malice" means that the statement was made with knowledge of its falsity or with reckless disregard of whether it was false or not. ⁵ Recently, and subsequent to the decisions of both the trial court and the Court of Appeals in this case, we decided Herron v. Tribune Pub'g iCo., 108 Wash.2d 162, 169-70, 736 P.2d 249 (1987), which collects the legal principles pertinent to the case before us:

The standard of review on appeal of a summary judgment order is de novo, with the reviewing court performing the same inquiry as the trial court. See Del Guzzi Constr. Co. v. Global Northwest Ltd., 105 Wn.2d 878, 882, 719 P.2d 120 (1986); Hartley v. State, 103 Wn.2d 768, 774, 698 P.2d 77 (1985).[ ⁶ Evidence not presented before the trial court is not considered on appeal. See Tank v. State Farm Fire & Cas. Co., 105 Wn.2d 381, 390, 715 P.2d 1133 (1986).

When a defamation claim is brought by a public official regarding statements made about the official's performance of his public duties, the plaintiff must prove that the statements were made with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 11 L.Ed.2d 686, 84 S.Ct. 710, [725-26] 95 A.L.R.2d 1412 (1964). The burden of proof for the element of actual malice is "clear and convincing evidence", not the less stringent "preponderance of the evidence" burden ordinarily required in civil suits. New York Times, at 285-86. This heavier burden is imposed at the summary judgment stage as well as at trial; to survive a defendant's summary judgment motion for dismissal, the plaintiff must offer evidence sufficient to permit a reasonable trier of fact to find clear and convincing proof of actual malice. Anderson v. Liberty Lobby, Inc., U.S. , [253-254] 91 L.Ed.2d 202, 215, 106 S.Ct. 2505, [2513] (1986). As with other summary judgment motions, the nonmoving party is entitled to have the evidence viewed in a light most favorable to him and against the moving party. Liberty Lobby, [477 U.S. at 255-256, 106 S.Ct. at 2513-2514] 91 L.Ed.2d at 216. However, if the plaintiff, as nonmoving party, can only offer a "scintilla" of evidence, evidence that is "merely colorable", or evidence that "is not significantly probative", the plaintiff will not defeat the motion. See Liberty Lobby, [477 U.S. at 248-249, 106 S.Ct. at 2510-11] 91 L.Ed.2d at 212; cf. Rye v. Seattle Times Co., 37 Wn.App. 45, 56, 678 P.2d 1282, cert. denied, 469 U.S. 1087 [105 S.Ct. 593, 83 L.Ed.2d 703] (1984). Moreover, conclusory statements in a plaintiff's affidavit are insufficient; the plaintiff must demonstrate the basis for his assertions. iMansfield v. Holcomb, 5 Wn.App. 881, 886-87, 491 P.2d 672 (1971). The inquiry before this court, then, is (Footnote omitted. Italics ours.)

whether, in viewing all the evidence in a light most favorable to the [plaintiffs], a reasonable trier of fact could find clear and convincing proof that the defendants published their articles with actual malice.

The actual malice standard is subjective in the sense that it focuses on the media defendant's knowledge that the defendant's statement is false or made with reckless disregard of its falsity. ⁷ Thus, a public official plaintiff must show that a media defendant "in fact entertained serious doubts as to the truth of his publication." (Italics ours.) St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325-26, 20 L.Ed.2d 262 (1968). ⁸ Clear and convincing proof of actual malice cannot be established solely by evidence of personal hostility, vindictiveness or spite. ⁹ However, when reviewing the record the court will consider cumulatively such factors as hostility, knowledge that sources are hostile to the plaintiff, failure to investigate, and use of unreliable sources to determine whether a clear and convincing inference of actual malice has been raised. ¹⁰

With the foregoing principles in mind, we turn to the evidence in this case. For clarity of analysis, we individually examine the principally disputed statements, keeping also in mind their cumulative effect.

In support of the newspaper's motion for summary judgment, the reporter's affidavit stated that he had "personally ascertained" the facts and that he believed all of the facts Opposing the motion for summary judgment, the port manager filed his affidavit and two depositions, an affidavit of port commissioner John J. McLaughlin, the state auditor's final report and other miscellaneous documents. ¹²

in the first two articles to be true, and all of the facts in the third article to be substantially true. Such professions of good faith are unpersuasive if "the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation." ¹¹

First, considering the issue of whether the port manager made unauthorized private use of the port...