Mark v. Seattle Times

• Decision Date: 12 November 1981
• Docket Number: 47436-2,47450-8,47571-7 and 47660-8,KOMO-TV,Nos. 47423-1,s. 47423-1
• Citation: 96 Wn.2d 473,635 P.2d 1081
• Parties: , 7 Media L. Rep. 2209 Albert M. MARK, Petitioner, v. The SEATTLE TIMES, a corporation, Respondent. Albert M. MARK, Petitioner, v. FISHER'S BLEND STATION, INC., a Washington corporation, d/b/aChannel 4, Respondent. Albert M. MARK, Petitioner, v. KING BROADCASTING COMPANY, a corporation, Respondent. Albert M. MARK, Appellant, v. KIRO, INC., Respondent. Albert M. MARK, Petitioner, v. Gerald ROBINSON, and Jane Doe Robinson, his wife; Robinson Newspapers, Inc., a Washington corporation; the West Seattle Herald, a Washington newspaper; the White Center News, a Washington newspaper; the Highline Times, a Washington newspaper; the Des Moines News, a Washington newspaper; the Federal Way News, a Washington newspaper, Respondents.
• Court: Washington Supreme Court

Page 473

96 Wn.2d 473

635 P.2d 1081, 7 Media L. Rep. 2209

Albert M. MARK, Petitioner, v. The SEATTLE TIMES, a corporation, Respondent.

Albert M. MARK, Petitioner, v. FISHER'S BLEND STATION, INC., a Washington corporation, d/b/a KOMO-TV Channel 4, Respondent.

Albert M. MARK, Petitioner, v. KING BROADCASTING COMPANY, a corporation, Respondent.

Albert M. MARK, Appellant, v. KIRO, INC., Respondent.

Albert M. MARK, Petitioner, v. Gerald ROBINSON, and Jane Doe Robinson, his wife; Robinson

Newspapers, Inc., a Washington corporation; the West Seattle

Herald, a Washington newspaper; the White Center News, a

Washington newspaper; the Highline Times, a Washington

newspaper; the Des Moines News, a Washington newspaper; the

Federal Way News, a Washington newspaper, Respondents.

Nos. 47423-1, 47436-2, 47450-8, 47571-7 and 47660-8.

Supreme Court of Washington, En Banc.

Nov. 12, 1981.

Albert M. Mark, Richard B. Sanders, Kargianis & Austin, Russell A. Austin, Seattle, for petitioner.

Davis, Wright, Todd, Riese & Jones, Evan Schwab, Daniel Waggoner, Williams, Lanza, Kastner & Gibbs, Joseph J. Lanza, Riddell, Williams, Ivie, Bullitt & Walkinshaw, Stephen E. DeForest, Preston, Thorgrimson, Ellis & Holman, Gordon G. Conger, Robert B. Mitchell, Lycette, Diamond & Sylvester, O. J. Humphrey, Seattle, for respondents.

WILLIAMS, Justice.

In these consolidated defamation cases petitioner Albert M. Mark seeks reversal of summary judgments granted against him in five separate actions in King County Superior Court. The Court of Appeals upheld the trial courts in four of the cases. Mark v. Seattle Times, 27 Wash.App. 1014 (1980) (unpublished); Mark v. Fisher's Blend Station, 27 Wash.App. 916, 621 P.2d 159 (1980); Mark v. KING Broadcasting Co., 27 Wash.App. 344, 618 P.2d 512 (1980); Mark v. Robinson, 28 Wash.App. 1028 (1981) (unpublished). The fifth case, Mark v. KIRO, Inc., King County Cause No. 856092, comes to us on direct review from the trial court. For the reasons discussed below, we affirm the decisions in both the Court of Appeals and the Superior Court.

These cases stem from news coverage of Medicaid fraud charges filed against Albert M. Mark, a Seattle pharmacist, by the fraud division of the King County Prosecuting Attorney's Office. On December 29, 1976, a deputy prosecutor in the division apparently informed several members of the news media in a press briefing that charges were soon to be filed against Mark and that this was the largest Medicaid fraud case ever filed in the state. At this same time, the prosecutor distributed copies of the information which the prosecutor planned to file, and of the affidavit of probable cause and suspect information report, which were to be filed in support of the State's motion for an order directing issuance of a warrant for Mark's arrest. CrR 2.2(a); LCrR 2.2(g)(2) (King County).

The affidavit of probable cause read, in relevant part:

The instances collected by the Department of Social and Health Services investigators ... reflects false claims and payments substantially in excess of $75.

Further, in that regard an audit was begun on or about October 12, 1976.... Only medicaid prescriptions were picked and the sample taken after being verified resulted in a 63% invalid figure or over $200,000 in fraud billing for the 22/3 years.... A second audit to verify the first with a larger sample (300) was planned.... The results of the first audit were communicated to Mark through his attorney and the need for verification using a larger sample was stressed.

Seattle Times Clerk's Papers, at 36.

The information, which was filed on December 30, 1976, charged Mark with grand larceny, 10 counts of forgery, and tampering with physical evidence. The information did not specify the exact amount of money involved. Instead, it stated that Mark had defrauded the State in an amount greater than $75, the statutory requirement, and that he had submitted "voluminous amounts" of forged and false prescription forms. Seattle Times Clerk's Papers, at 40. Subsequently, the State amended the information dropping five of the forgery counts and the tampering-with-evidence charge.

In June 1977, Mark was found guilty on the larceny and the remaining forgery charges. At trial, the State established invalid claims totaling only about $2500. The court imposed a 5-year deferred sentence and a 1-year county jail term with work release and also ordered Mark to pay full restitution, but determination of that amount was deferred until a later hearing. To date, no determination has been made. The Court of Appeals affirmed by unpublished opinion in State v. Mark, 23 Wash.App. 1050 (1979), but this court reversed the forgery counts of the conviction. State v. Mark, 94 Wash.2d 520, 618 P.2d 73 (1980).

Publication of these events by the various respondents was as follows:

The Seattle Times publications. On December 30, 1976, The Seattle Times ran a banner-type headline that read: "PHONEY PRESCRIPTIONS-$200,000 MEDICAID FRAUD CHARGED". Clerk's Papers, at 145. The article explained that Mark, the owner of two West Seattle pharmacies, had been charged with grand larceny, tampering with evidence, and 10 counts of forgery. The article quoted the chief deputy prosecutor's statement that Mark had submitted "voluminous amounts" of forged and false prescription forms for payment to the Department of Social and Health Services (DSHS). The article further quoted the deputy prosecutor and a DSHS investigator as stating that a preliminary audit indicated a loss of $200,000 by government agencies over a 32-month period, that this was the State's largest Medicaid fraud case "to date", and that a preliminary audit indicated that 63 percent of the claims submitted to DSHS by Mark were invalid. The Times also reported that when investigators returned to Mark's pharmacy, they found that the files had been "substantially stripped" of the prescription forms needed for a further audit. Clerk's Papers, at 40.

In December 1977, approximately 1 year after the original story was published, the Times printed a report of a prosecution for Medicaid prescription fraud against another pharmacist. One paragraph in that story read:

The case was the second brought this year by the prosecutor's office against a local pharmacist. Earlier this year, a West Seattle pharmacist, Albert M. Mark, was found guilty of grand larceny and forgery in a case involving about $200,000 in Medicaid claims.

Clerk's Papers, at 142. This later story was written by the same reporter who wrote the original article. The reporter testified in his deposition that he was unsure whether he had referred to news reports of Mark's trial or to the court files when he prepared the second story.

Mark sued The Seattle Times for defamation. The Times moved for either dismissal, CR 41(b), or summary judgment, CR 56. The trial court granted the motion for summary judgment.

The KOMO-TV broadcasts. Mark complains of five broadcasts made by KOMO-TV. The reports contained some information identical to that in the stories published by The Seattle Times, although there were also some factual dissimilarities. Newscasters quoted the prosecutor as stating that this was the largest case of Medicaid fraud in memory, rather than in this state. The reports also stated that the estimated total fraud was $350,000 (or $300,000 in at least one report), rather than $200,000, and that investigators had found 65 percent of the Medicaid prescriptions billed to the State were invalid, rather than 63 percent as stated in the affidavit. There was no mention of the preliminary nature of the survey. The reports quoted the deputy prosecutor as stating that Mark forged prescriptions for "patients that didn't exist". Clerk's Papers, at 451. One broadcast depicted a large stack of dollars blowing away in the wind, and another report stated that Mark's willingness to fill prescriptions without first determining whether the State would pay for the medicine might have provided a motive to cheat the government elsewhere to recover the amounts DSHS refused to pay on legitimate claims. After Mark was sentenced and ordered to pay restitution, KOMO-TV reported:

The restitution will be determined in later hearings because the state has never been able to establish how much money Mark actually stole, partially because he destroyed some of the evidence says the prosecutor.

Clerk's Papers, at 456.

Mark sued Fisher's Blend Station, Inc. (d/b/a KOMO-TV), for defamation. The trial court granted the station's motion for summary judgment and the Court of Appeals affirmed. Mark v. Fisher's Blend Station, 27 Wash.App. 916, 621 P.2d 159 (1980).

The KING-TV broadcasts. KING-TV also reported the filing of charges against Mark. The broadcasts contained only the material that was provided in the affidavit of probable cause and information, with two exceptions. On the basis of the deputy prosecutor's statements, KING-TV reported that this was the largest Medicaid fraud suit ever filed in the state and that "Mark filed claims using names of doctors and patients who are eligible for Medicaid, but those doctors and those patients never wrote or received the prescriptions." Clerk's Papers, at 96.

During its January 7, 1977 news broadcast, KING-TV also showed a film clip of Mark talking on the telephone inside one of his pharmacies. This film was taken by a KING-TV camera operator who had arrived at the pharmacy after it was closed and had walked up a drive leased to tenants. He apparently placed the camera against the window and used spotlights to illuminate the interior of the pharmacy. The telecast of the interior scene took approximately 13 seconds, the remainder of the 53-second film clip consisting of exterior shots.

Mark sued KING-TV for defamation and invasion of privacy. The trial court granted KING-TV's motions for summary judgment on both issues. The Court of Appeals affirmed, with one judge dissenting on the...