Rotkiewicz v. Sadowsky

• Decision Date: 11 February 2000
• Citation: 730 NE 2d 282,431 Mass. 748
• Parties: WILLIAM F. ROTKIEWICZ, JR. v. WALTER L. SADOWSKY, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

431 Mass. 748

730 NE 2d 282

WILLIAM F. ROTKIEWICZ, JR. v. WALTER L. SADOWSKY, JR.

Supreme Judicial Court of Massachusetts, Franklin.

February 11, 2000.

June 20, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, IRELAND, & COWIN, JJ.

Wendy H. Sibbison for the defendant.

Jack D. Curtiss for the plaintiff.

Robert A. Bertsche, Carol V. Rose, & William C. Newman, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

IRELAND, J.

The defendant appeals from a judgment in an action for defamation and intentional infliction of emotional distress. The issue presented in this appeal is whether the plaintiff, a police officer, is a "public official" for purposes of defamation claims, and is therefore required to prove that the defendant made defamatory statements with "actual malice." See New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). We conclude that the plaintiff was a public official and therefore, because the judge did not give an instruction on the "actual malice" standard of proof, we reverse and remand for a new trial.

1. Facts and procedural history. The plaintiff was a trooper in the Massachusetts State police from 1983 to 1991. In 1989, the plaintiff's father was indicted on Federal charges of writing false prescriptions from his pharmacy. Both the defendant and his father provided evidence against the plaintiff's father. In July, 1990, the plaintiff's father pleaded guilty and was sentenced to house arrest for two years.

In January, 1991, the defendant wrote a letter to the plaintiff's superiors on the Massachusetts State police. In the letter, the defendant alleged that he had "been subject to a lot of harassment [by the plaintiff] ... since [the plaintiff's] father's arrest," and that the plaintiff had "given him the finger," made his hand into the shape of a gun and pointed it into his mouth, stuck out his tongue, and mouthed the words "son of a bitch" as he drove past. The defendant also complained about two traffic stops by the plaintiff, one of which occurred on July 3, 1990, the day after the plaintiff's father had been sentenced. The defendant also claimed that two other individuals had asserted that the plaintiff had acted against them in revenge. The letter further stated that the plaintiff's father had been involved in illegal activities, that the plaintiff had received a substantial amount of money from his father, and that the plaintiff was involved in "Sunday sales" of alcohol from his father's package store.

In addition to the defendant's letter, the plaintiff's supervisors received a complaint from a Montague police officer who had been involved in the investigation of the plaintiff's father. In response to these complaints, an internal investigation commenced. The investigation concluded that the defendant's complaints were "not sustained." On the basis of the Montague police officer's complaint, however, departmental internal affairs charged the plaintiff with "conduct unbecoming an officer." The plaintiff subsequently resigned from the police force. Four months later, the plaintiff filed this suit, alleging libel and intentional infliction of emotional distress.

In 1993, while the defamation lawsuit was pending, the plaintiff was hired as a part-time police officer in Deerfield. The defendant attended a number of meetings of the Deerfield board of selectmen (board) to express his views on the plaintiff's appointment. The essence of the defendant's comments was that he and the plaintiff had lawsuits pending against each other and that the defendant felt harassed by the plaintiff. At the meetings, the defendant wore a jacket with a bull's-eye painted on the back, which, as he explained to a local newspaper, symbolized how he felt. Later that year, the board wrote to the defendant to inform him that it was satisfied with the plaintiff's credentials and stood by the appointment. After he received the board's letter, the defendant continued to attend board meetings wearing his jacket with the bull's-eye, and he wore the jacket around the town of Deerfield. Subsequently, the plaintiff amended his complaint to add a count of slander arising from the statements made at the board meetings and the wearing of the bull's-eye jacket.

The case was tried before a jury in October, 1994. At trial, the plaintiff denied making any obscene or other harassing gestures at the defendant, but admitted "giving the finger" to the Montague police officer. The plaintiff admitted that he had received some money from his father toward the building of his house, and that his name had been on the package store's liquor license, but denied any wrongdoing or involvement in "Sunday sales" of alcohol. At the conclusion of the evidence, the judge ruled that the plaintiff was a "private individual," and thus did not instruct the jury on the actual malice standard. The jury awarded the plaintiff $81,000 for the defamation claim and $75,000 for intentional infliction of emotional distress.

On appeal, the defendant argues that the jury should have been instructed that the plaintiff was a public official and that, as such, the plaintiff was required to prove actual malice in order to recover. We granted the defendant's application for direct appellate review.

2. Preservation of the issue. As an initial matter, the plaintiff argues that the issue of his status as a public official is not before this court because the defendant did not preserve the issue; that is, the defendant did not object, at the conclusion of the jury charge, to the judge's failure to give an instruction on the actual malice standard.¹

As provided by the Massachusetts Rules of Civil Procedure, "[n]o party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974). The primary purpose of the rule is to put the judge on notice of the issue, and the requirements of the rule may be satisfied in a variety of ways. See Flood v. Southland Corp., 416 Mass. 62, 66-67 (1993) (rejecting "hard and fast approach" of United States Court of Appeals for the First Circuit, which requires, under similar Federal rule, that all relevant events occur after charge is given), and cases discussed. A party objecting to the inclusion or exclusion of an instruction must, however, clearly bring the objection and the grounds for it to the attention of the judge. See id.

In this case, at the close of the plaintiff's evidence, and in response to the judge's query regarding whether there was a question on the plaintiff's status as a public official,² the defendant orally requested that the jury be given an instruction on public officials. Immediately before closing arguments began, the judge called counsel to sidebar and informed them, in essence, that he was finding the plaintiff was not a public official and therefore would not give that instruction. The judge also noted defense counsel's objection. The defendant did not renew his objection at the end of the jury charge.

In order to preserve the issue for appellate review, the better practice would have been for defense counsel to renew the objection, with specificity, at the end of the charge. See id. at 67. The judge did, however, acknowledge his awareness of the issue, explicitly ruled on it, and expressed his intention not to instruct as requested. Further, the judge expressly noted the defendant's objection to the ruling. In these circumstances, we conclude that the requirements of the rule have been met. See id. at 67 (stating that there can be circumstances under which no postcharge objection is required). Cf. Commonwealth v. Grenier, 415 Mass. 680, 686 (1993) (defendant's appellate rights properly saved where judge denied written request for jury instruction during charge conference and stated that defendant's exception was saved; defendant not required to repeat objection after charge was given). The issue is therefore preserved.³

3. Police officer's status as a public official. Recognizing the "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open" and acknowledging that the Constitution protects such debate even when it includes "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials," the landmark case, New York Times Co. v. Sullivan, 376 U.S. 254, 270-271, 279-280 (1964), established that a public official could not recover for "a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." We have not had the opportunity to rule on the question whether a patrol-level police officer qualifies as a public official. See Fleming v. Benzaquin, 390 Mass. 175, 189 (1983) (noting that the "weight of authority leans toward classifying police officers as public officials" but declining to decide the issue). We conclude, because of the broad powers vested in police officers and the great potential for abuse of those powers, as well as police officers' high visibility within and impact on a community, that police officers, even patrol-level police officers such as the plaintiff, are "public officials" for purposes of defamation.⁴

One of the major factors in determining whether a government employee is a public official for purposes of defamation is whether the employee's position in government "has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general interest in the qualifications and performance of all government employees...." Rosenblatt v. Baer, 383 U.S. 75, 86 (1966). "The employee's position must...