Reddick v. Craig

• Decision Date: 12 December 1985
• Docket Number: No. 83CA1372,83CA1372
• Citation: 719 P.2d 340
• Court: Colorado Court of Appeals
• Parties: 12 Media L. Rep. 1664 William R. REDDICK, Jr., and Phillips, Brandt, Reddick and Associates, Inc., a Colorado corporation, Plaintiffs-Appellants, v. Roy CRAIG and The Durango Herald, Inc., Defendants-Appellees. . III

Page 340

719 P.2d 340

12 Media L. Rep. 1664

William R. REDDICK, Jr., and Phillips, Brandt, Reddick and Associates, Inc., a Colorado corporation Plaintiffs-Appellants, v. Roy CRAIG and The Durango Herald, Inc., Defendants-Appellees.

No. 83CA1372.

Colorado Court of Appeals Div. III.

Dec. 12, 1985.

Rehearing Denied Jan. 16, 1986.

Certiorari Denied (Reddick) May 5, 1986.

Bader & Cox, Gerald L. Bader, Jr., Jeffrey M. Villanueva and Martha M. Ezzard, Denver, for plaintiffs-appellants.

Rector, Retherford, Mullen & Johnson, Anthony A. Johnson and Neil C. Bruce, Colorado Springs, for defendant-appellee Roy Craig.

Yates & Crane, Russell E. Yates and Alan G. Hill, Durango, for defendant-appellee The Durango Herald, Inc. BABCOCK, Judge.

In this libel action, plaintiffs, William R. Reddick, Jr., (Reddick) and Phillips, Brandt, Reddick and Associates, Incorporated (PBR), appeal from the trial court's entry of summary judgment in favor of defendants, Roy Craig (Craig) and the Durango Herald, Inc. (Herald). We affirm.

Reddick is the chief operating officer and the major stockholder of PBR. PBR, which engages in land use planning, was employed by La Plata County in July 1977 to develop a comprehensive land-use plan for the county over a three year period. During this time a public dispute developed concerning land use planning and expenditures therefor. Reddick organized and conducted nineteen public meetings to inform the public of the planning process. Public meetings were also held by the La Plata County Planning Commission, the Durango City Council, and the La Plata County commissioners. Reddick and Craig attended many of these meetings, which were given extensive media coverage.

Craig, a technical and environmental consultant from La Boca, was chairman of the La Plata County Landowners Association which had filed a civil action alleging that the La Plata County commissioners had violated the Local Government Budget Law of Colorado. He, along with others, also obtained the appointment of a special prosecutor to investigate allegations contained in the civil complaint. During 1979 and 1980 Craig wrote a number of letters to the Herald concerning land use planning. The two letters published by the Herald on December 13, 1979, and March 11, 1980, which are the subject of this action, are appended hereto as Appendix A and B, respectively. The editorial response published with the March 11 letter is appended as Appendix C.

Reddick and PBR filed a complaint in December 1980 alleging defamation as a result of these two letters. In September 1983, the trial court entered summary judgment in favor of Craig and the Herald, ruling that Craig's letters were constitutionally protected expressions of opinion and that Reddick and PBR had failed to show by clear and convincing evidence that the matters contained in the letters were published with knowledge that they were false or with reckless disregard of their falsity. We agree with the trial court.

I.

First Amendment questions of constitutional fact compel de novo appellate review. Bose Corp. v. Consumer's Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); Kuhn v. Tribune-Republican Publishing Co., 637 P.2d 315 (Colo.1981); Russell v. McMillen, 685 P.2d 255 (Colo.App.1984). Where, as here, a publication addresses a matter of public concern, it constitutes constitutionally protected speech unless the alleged defamatory statements are published with actual malice, i.e., with knowledge that the statements are false or with reckless disregard of whether they are false. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Burns v. McGraw Hill Broadcasting Co., 659 P.2d 1351 (Colo.1983). To establish reckless disregard a plaintiff must produce clear and convincing evidence demonstrating that 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); Burns v. McGraw-Hill Broadcasting Co., Inc., supra.

Although Craig's analysis of an admittedly complex county budget may have led to an erroneous calculation of expenditures for land planning, there was no showing other than that he believed that the county had expended funds in excess of its planning budget. Moreover, even if Craig's figures were wrong, it has not been shown that his investigation was grossly inadequate. Cf. Kuhn v. Tribune-Republican Publishing Co., supra. Finally, although the Herald may have suspected that Craig's assertion of the extent of excess expenditure was in error, Craig had proved reliable in the past, and the Herald was entitled to rely on his general contention As to the publication of the March 11, 1980, letter, the plaintiffs' assertion that Craig knew that the special prosecutor had found no illegalities in the appropriations for land use planning is not supported by the record.

                that the county had exceeded its planning budget.  See New York Times Co. v. Connor, 365 F.2d 567 (5th Cir.1966).  Thus, plaintiffs here failed to show with "convincing clarity" that Craig or the Herald acted with "actual malice."   See Manuel v. Fort Collins Newspapers, Inc., 661 P.2d 289 (Colo.App.1982)
                

The special prosecutor's report of February 14, 1980, stated:

"In conclusion, it appears from my investigation and analysis of the ... nine claims ... that the La Plata County Commissioners technically violated the Local Government Budget Law of Colorado in all nine claims. It is my recommendation, however, that the commissioners not be prosecuted under the malfeasance statute for the following reasons: ...

....

"I do not mean to imply by my recommendation not to prosecute that the commissioners are without fault .... It is obvious that the commissioners have acted in an incompetent manner at times ...."

Also, in Craig's deposition, he acknowledged authorship of a letter to the Herald published on February 21, 1980. In that letter, Craig complained that although the special prosecutor found the commissioners had violated the Local Budget Law of Colorado, he refused to prosecute for malfeasance because he believed that they did not know they were violating the law, that some of their actions were taken upon the advice of counsel, and that they did not benefit personally from the illegal actions.

Additionally, there is nothing of record showing that the special prosecutor's report addressed plaintiffs' involvement or exonerated them from wrongdoing, nor is there evidence that Craig had been so informed. Furthermore, Craig's allegations of budgetary impropriety were at all times directed toward the La Plata County commissioners, not toward Reddick or PBR.

Thus, the record supports Craig's contention that he continued to believe that the La Plata County commissioners had expended funds in excess of the budget for land use planning, and that he relied upon the analysis of a certified public accountant in maintaining this conclusion. Accordingly, plaintiffs failed to prove with convincing clarity that Craig acted with "actual malice." See Fink v. Combined Communications Corp., 679 P.2d 1108 (Colo.App.1984); Manuel v. Fort Collins Newspapers, Inc., supra.

Plaintiffs contend, however, that the actual malice standard was met as to the Herald because Craig's letter of March 11 was published with editorial acknowledgment that the Herald believed Craig's analysis to be erroneous and potentially libelous. We disagree.

Good faith is the linchpin in determining actual malice, and recovery will be denied if the publication was made in good faith even if the publication is erroneous and defamatory. St. Amant v. Thompson, supra. Here, although the Herald published Craig's March 11 letter with the belief that Craig's analysis was erroneous and possibly libelous, its patent good faith purpose for publication was to foster ascertainment of the truth about public affairs by editorial rebuttal of Craig's opinion.

Actual malice is not an evasive, abstract concept, hard to prove and hard to disprove. Thus, summary judgment is particularly appropriate in cases concerning actual malice. Here, Reddick and PBR failed to present specific facts showing with convincing clarity that a genuine issue of material fact exists as to actual malice, see DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980); Fink v. Combined Communications Corp., supra. Accordingly, the trial court was correct in entering summary judgment in favor of defendants.

II.

Furthermore, we hold that Craig's letters expressed constitutionally protected opinion.

Remarks disparaging the conduct of public officials must be considered against the background of a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, supra; see Lane v. Arkansas Valley Publishing Co., 675 P.2d 747 (Colo.App.1983). To that end, the Supreme Court extended special protection to political opinions when it stated: "There is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges or juries but on the competition of other ideas." Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The Colorado Supreme Court acknowledged these principles in Bucher v. Roberts, 198 Colo. 1, 595 P.2d 239 (1979), which created a presumption favoring a finding of opinion in cases involving language which is of inherently speculative meaning. In Burns v. McGraw-Hill Broadcasting Co., supra, the Colorado Supreme Court reaffirmed Bucher as it pertains to "an essentially ambiguous statement, subject to conflicting interpretations," but also recognized that:

"Opinions may lose their constitutional protection when 'the average reader or listener or viewer...