Sanders v. Smitherman

• Decision Date: 30 June 2000
• Citation: 776 So.2d 68
• Parties: Henry SANDERS et al. v. Joe T. SMITHERMAN and Cecil Williamson.
• Court: Alabama Supreme Court

776 So.2d 68

Henry SANDERS et al. v. Joe T. SMITHERMAN and Cecil Williamson.

1981670.

Supreme Court of Alabama.

June 30, 2000.

Rosemary Sanders, Collins Pettaway, Jr., and April England, Selma, for appellants.

John W. Kelly III, Selma; Philip Henry Pitts of Pitts, Pitts & Thompson, Selma; and John E. Pilcher and E. Elliott Barker of Pilcher & Pilcher, Selma, for appellees.

PER CURIAM.

This appeal arises from a defamation action based on printed and oral statements regarding conduct of State Senator Henry (Hank) Sanders; his wife, attorney Rose Sanders; and Dallas County District 3 Commissioner Perry Varner. Mr. Sanders is a state senator representing the 23rd District and is chairman of the Senate's Finance and Taxation/Education Fund Committee.

In early 1997, Cecil Williamson, an elected member of the Dallas County School Board, began to gather information regarding Senator Sanders's conduct as a member of the Alabama Senate. Williamson ultimately turned over this information to the mayor of Selma, Joe T. Smitherman. On April 10 and April 17, 1997, Smitherman held press conferences concerning this information. Smitherman expressed concern over possible violations of state ethics laws by Senator Sanders. Smitherman and Williamson also circulated a publication dealing with the same subject matter. Williamson gave a radio interview in which he reiterated statements Smitherman had made at the press conferences.

On or about June 2, 1997, Smitherman and Williamson received letters from an attorney representing Henry Sanders, Rose Sanders, and Perry Varner. Each letter demanded retractions. On June 10, 1997, Smitherman and Williamson filed a declaratory-judgment action in the Dallas County Circuit Court, against Varner and the Sanderses (CV-97-178). This action initially sought a judgment declaring whether Varner and the Sanderses were "public officials" and/or "public figures," whether Smitherman and Williamson's publications were defamatory or malicious, and whether retractions were necessary under the provisions of § 6-5-186, Ala. Code 1975. Two days later, on June 12, Henry Sanders, Rose Sanders, and Varner sued Smitherman and Williamson in the Circuit Court of Pickens County, alleging slander, libel, and abuse of process (CV-98-64).

Several days later, Smitherman and Williamson amended their declaratory-judgment complaint to ask the court to declare that Smitherman's statements made during his April 10 and April 17, 1997, press conferences and the statements made by Williamson during his radio interview were political speech and, as such, were protected by the First Amendment to the United States Constitution. Smitherman and Williamson also filed a motion to transfer the Pickens County action (CV-98-64) to Dallas County; the trial court granted that motion on January 30, 1998, and transferred the action to Dallas County.

After all the judges for the Fourth Judicial Circuit (which includes Dallas County) recused themselves, both cases were assigned to Judge Joseph S. Johnston of the Thirteenth Judicial Circuit (Mobile County), and the cases were consolidated for purposes of discovery. Both cases were set for trial on March 29, 1999, with all dispositive motions to be filed on or before January 29, 1999. In both actions, all parties filed timely motions for summary judgments. The court, on February 3, 1999, scheduled a hearing on the summary-judgment motions for February 18, 1999. In its order of February 3, 1999, the trial court, with regard to the hearing on the summary-judgment motions, stated that all responsive pleadings, along with supporting briefs and materials, were to be filed with the Circuit Court of Dallas County and received by the trial judge not later than Monday, February 15, 1999. Varner and the Sanderses, however, did not file affidavits and other materials supporting their motion or opposing Smitherman and Williamson's summary-judgment motion until February 16, 1999; this delay was due to the fact that February 15, 1999, was a State holiday. Based on the language in the order specifying that such materials were to be "received by the trial judge" by February 15, 1999, the trial court held that the submission of those materials after that date was untimely. After it had held the hearing on February 18, 1999, the trial court entered a summary judgment in favor of Smitherman and Williamson in the declaratory-judgment action. The trial court also vacated an earlier order denying Smitherman and Williamson's motion to dismiss the defamation action filed against them and granted that motion. The trial court's detailed order in the declaratory-judgment action set forth each allegation of defamation made by Varner and the Sanderses and explained the rationale for the summary judgment. The trial court denied Varner and the Sanderses' motion for "reconsideration" in the defamation action.

In one order disposing of both actions, the trial court held that Senator Sanders and Varner were "public officials" and that Rose Sanders was a "public figure." This holding called for the court to apply the "clear-and-convincing-evidence" standard in determining whether the statements concerning ethics violations had been made knowingly or recklessly. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Neither the Sanderses nor Varner challenges this holding on appeal, and we find no basis to hold it erroneous.

On appeal from the dismissal of their defamation action, the Sanderses and Varner raise three issues: (1) whether the statements made by Smitherman and Williamson were capable of having a defamatory meaning; (2) whether sufficient evidence was provided to the trial court to warrant a finding of actual malice; and (3) whether the defense of truth is applicable. While the Alabama Ethics Commission subsequently found no wrongful conduct, Varner and the Sanderses never refuted the underlying facts giving rise to the allegations of ethical violations. In this context, the issues become (1) whether accusations concerning actual violations of state ethics laws were, as a matter of law, made with actual malice, i.e., with knowledge of their falsity or with reckless disregard for their truth or falsity; and (2) whether the publication of the related pamphlet was defamatory.

"When, as here, the plaintiff is a public figure, he cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with `knowledge that it was false or with reckless disregard of whether it was false or not.' New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Mere negligence does not suffice. Rather, the plaintiff must demonstrate that the author `in fact entertained serious doubt as to the truth of his publication,' St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), or acted with a `high degree of awareness of ... probable falsity.' Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)."

Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (citations omitted). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). In a ruling on a summary-judgment motion in a defamation action involving a public figure, the trial judge must determine whether the plaintiff has shown by clear and convincing evidence that the defendant acted with actual malice. Deutcsh v. Birmingham Post Co., 603 So.2d 910, 911 (Ala.1992), cert. denied, 506 U.S. 1052, 113 S.Ct. 976, 122 L.Ed.2d 130 (1993).

In support of their motion for a summary judgment in the defamation action, Smitherman and Williamson provided affidavits and public records that they say support their assertion that all statements they made or published concerning the Sanderses and/or Varner were true. Because truth is a complete bar to a defamation action, Deutcsh, 603 So.2d at 911, once Smitherman and Williamson submitted substantial evidence indicating their statements were true, the burden shifted to the Sanderses and Varner to present substantial evidence indicating that the statements made about them were false.

The Sanderses assert that they submitted affidavits and other materials supporting their defamation claims. Varner submitted no evidence.¹ The trial court refused to consider the information submitted by the Sanderses because it held their materials to have been untimely filed. The Sanderses argue that the submissions were timely because Rule 6(a), Ala. R. Civ. P., states that in the event a due date falls on a legal holiday, the submitting party has until the end of the next day that is not a Saturday, Sunday, or legal holiday. Although the trial court specified Monday, February 15, 1999, as the due date for the submission of the materials, that day was a legal holiday, George Washington's Birthday. The Sanderses were therefore entitled to submit their affidavits and supporting materials on the next day that was not a legal holiday. See In re American Healthcare Management, Inc., 900 F.2d 827, 831 (5th Cir.1990) (holding that a bankruptcy rule equivalent to Rule 6(a), Ala. R. Civ. P., should be construed to give the benefit of extending the deadline for submission to the day after the holiday, regardless of whether the deadline is expressed as the last day of a period of days or as a date certain).

It is beyond dispute that the filing was made in Dallas County on Tuesday, February 16, 1999, the first day after the legal holiday that was not a legal holiday in Dallas County. However, February 16, 1999, was Mardi...