McCarney v. Des Moines Register & Tribune Co.

• Decision Date: 18 February 1976
• Docket Number: No. 2--57145,2--57145
• Citation: 239 N.W.2d 152
• Parties: Patrick J. McCARNEY, Appellee, v. DES MOINES REGISTER AND TRIBUNE COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 152

239 N.W.2d 152

Patrick J. McCARNEY, Appellee, v. DES MOINES REGISTER AND TRIBUNE COMPANY, Appellant.

No. 2--57145.

Supreme Court of Iowa.

Feb. 18, 1976.

Robert G. Riley and Hedo M. Zacherle, Des Moines, and David P. Poula, Iowa City, for appellant.

Meardon, Sueppel, Downer p Hayes, Iowa City, for appellee.

Heard before MOORE, C.J., and LeGRAND, REES, REYNOLDSON and McCORMICK, JJ.

LeGRAND, Justice.

We authorized this interlocutory appeal under Rule 332, Rules of Civil Procedure, to consider the right of a public officer to recover from a newspaper for allegedly false and libelous statements published about him.

It is a case of unusual significance because we have not faced a similar issue since New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 was decided in 1964. (We hereafter cite this case as New York Times.) That decision announced important changes in the law of libel as it relates to public officials and those who criticize them.

This appeal is before us on defedant's motion for summary judgment, which the trial court overruled. We reverse and remand with instructions that judgment be entered for defendant.

Plaintiff, who had been Chief of Police of Iowa City and was at the time of the alleged libel a police captain, started this action to recover damages against defendant newspaper, Des Moines Register and Tribune Company, alleging it published a false and malicious news story stating he had been indicted by a Johnson County grand jury 'in a case involving the death of a prisoner, but the indictment was declared invalid.'

Plaintiff immediately filed this written demand for a retraction:

'You are hereby notified that on page 20 of the Des Moines Register for Wednesday morning, March 15, 1972, * * * a certain news publication was made, a copy of which is attached hereto * * *.

'You are further notified that Patrick McCarney claims that the following statements appearing in said publication: McCarney in a case involving the death of a prisoner, but the indictment was declared invalid.'

'are libelous, malicious, false and untrue.

'You are hereby requested to withdraw it and retract said libelous, malicious, false and untrue statements.'

In its edition for Friday morning, March 17, 1972, defendant published the following retraction:

'CORRECTION'

'Iowa City Iowa. The Des Moines Register reported incorrectly Wednesday morning that Iowa City Police Captain Patrick McCarney had been indicted in a case involving the death of a prisoner.

'McCarney was indicted February 17th by a Johnson County grand jury on a charge of assault with intent to commit great bodily injury in connection with the alleged mistreatment of a jail prisoner. The indictment was found to be faulty and was dismissed February 22nd.

'No indictment involving the death of a prisoner ever was returned against McCarney. The Register regrets the error.'

Plaintiff's petition alleges the original publication was 'entirely false, untrue, libelous, defamatory and was maliciously published.' He also asserts the retraction itself contained statements which are 'unfounded, false and untrue in that the plaintiff was never indicted by a grand jury.'

He says, too, the retraction was insufficient because 'the title of said article, I.e., 'Correction' does not direct the attention of the reader to the subject matter as in the original article.'

Defendant filed an answer admitting the publication of the original story and admitting it was erroneous. The answer denied malice, asserting the publication was made in good faith in the belief that it was true and for justifiable purposes. It further alleged defendant was entitled to publish the statements as an exercise of its freedom of speech and of the press guaranteed by the 1st and 14th Amendments to the Constitution of the United States.

Plaintiff submitted seventeen interrogatories, which defendant duly answered. Thereafter, defendant filed its motion for summary judgment, supported by affidavit, alleging the pleadings and supporting material 'show there to be no genuine issue as to the material facts necessary to establish plaintiff's cause of action and that defendant is entitled to a judgment herein as a matter of law.'

Defendant's motion was filed under Rule 237(b) and (c), R.C.P., the pertinent portions of which are here set out:

'(b) For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

'(c) * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that these is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * *'

When, as here, such a motion is supported by affidavit, the 'adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.' Rule 237(e), R.C.P.

In the case before us plaintiff did not file any countering affidavits; neither did he introduce any depositions or oral testimony, as the rule permits, at the hearing on defendant's motion. See Davis v. Travelers Insurance Company, 196 N.W.2d 526, 529 (Iowa 1972); Frudden Lumber Company v. Clifton, 183 N.W.2d 201, 204 (1971); Hanna v. State Liquor Control Commission, 179 N.W.2d 374, 375 (Iowa 1970).

While it is true the information before the court on a motion for summary judgment is to be viewed in the light most favorable to the person against whom the motion is filed, nevertheless that person must counter the evidentiary material submitted in support of the motions. Rule 237(e), R.C.P.; Schulte v. Mauer, 219 N.W.2d 496, 500 (Iowa 1974); Iowa Civil Rights Comm'n. v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973); Davis v. Comito, 204 N.W.2d 607, 611--612 (Iowa 1973); Mead v. Lane, 203 N.W.2d 305, 308 (Iowa 1972); Prior v. Rathjen, 199 N.W.2d 327, 330 (Iowa 1972); Bauer v. Stern Finance Co., 169 N.W.2d 850, 853 (Iowa 1969).

Of course, a party may elect to stand on the record as made by his opponent but he must then succeed, if he succeeds at all, not on the strength of his own case, for he has made none, but on the weakness of his adversary's. Mead v. Lane, supra, 203 N.W.2d at 308; Blackburn, Thirty Years of Motion Practice Under the Iowa Rules, 21 Drake L.Rev. 447, 475 (1972).

It is this position in which plaintiff now finds himself. It is in this manner that we must consider defendant's motion. See Daboll v. Hoden, 222 N.W.2d 727, 734--735 (Iowa 1974); Goodwin v. City of Bloomfield, 203 N.W.2d 582, 588 (Iowa 1973).

Plaintiff's petition alleges defendant's news story was maliciously false in erroneously stating he had been indicted in connection with a case involving the death of a prisoner and in referring to an indictment at all since it had been invalidated before the story in question was published. As already noted, plaintiff also claims the purported retraction was itself simply a repetition of part of the libelous matter.

As provided by Rule 237, we consider defendant's right to summary judgment on the pleadings, answers to interrogatories, and affidavits. Standing unrefuted, they establish the following circumstances under which the disputed publication occurred:

The original news story reached defendant's newsroom via the Associated Press wire service. It contained a statement that plaintiff was charged by grand jury indictment with Assault involving a prisoner. This news item was assigned to one of defendant's employees to be edited and readied for publication. In doing so, the employee, confusing the story with another pending investigation involving police and jail prisoners in Council Bluffs, changed the story to incorrectly state the indictment returned against plaintiff involved the Death of a prisoner. The error was not discovered until the next day. The correction already referred to followed.

Defendant admits the error occurred because its employee 'erroneously confused' plaintiff with another police officer involved in another investigation in another town. It also admitted no investigation was made to establish the accuracy of the story, although reference to defendant's own files would have dispelled any confusion. Defendant further conceded in its answers to interrogatories that it has no rules, regulations, standards, policies or procedures which required verification of the facts of the story before it was published.

It is beyond dispute that the news item was erroneous as the result of defendant's negligence. Defendant admits as much but says negligence affords no basis for recovery. Relying exclusively upon the New York Times doctrine, defendant argues there is no genuine issue of fact as to actual malice, without which no relief may be had.

This brings us, then, to a discussion of New York Times and its effect on our libel law relating to public officials.

Before New York Times was decided, defendant's demand for summary judgment could not have prevailed under our law. See Taylor v. Hungerford, 205 Iowa 1146, 1148--1149, 217 N.W. 83, 84 (1927); Salinger v. Cowles, 195 Iowa 873, 888--890, 191 N.W. 167, 174 (1922); Ott v. Murphy, 160 Iowa 730, 738--739, 141 N.W. 463, 467 (1913).

We did not then make proof of actual malice a necessary element of recovery by a libeled public official. However, New York Times decided such a rule violated constitutional rights of free speech and freedom of the press under the 1st and 14th Amendments. Our earlier cases cited in the preceding paragraph are now overruled to the extent they conflict with this opinion.

In New York Times, the Supreme Court of the United...