Scottsdale Pub., Inc. v. Superior Court In and For County of Maricopa, 1

CourtCourt of Appeals of Arizona
Writing for the CourtFIDEL; BROOKS, P.J., and KLEINSCHMIDT
Citation764 P.2d 1131,159 Ariz. 72
Parties, 16 Media L. Rep. 1033 SCOTTSDALE PUBLISHING, INC., an Arizona corporation, Jonathan and Maxine Marshall, and Don Devereux and Niomi Devereux, Petitioners, v. SUPERIOR COURT OF the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Marilyn A. Riddel, a judge thereof, Respondent Judge, Roy ROMANO, Real Party in Interest. 178.
Docket NumberCA-SA,No. 1,1
Decision Date07 June 1988

Page 1131

764 P.2d 1131
159 Ariz. 72, 16 Media L. Rep. 1033
SCOTTSDALE PUBLISHING, INC., an Arizona corporation, Jonathan and Maxine Marshall, and Don Devereux and Niomi Devereux, Petitioners,
v.
SUPERIOR COURT OF the State of Arizona, In and For the COUNTY OF MARICOPA, Honorable Marilyn A. Riddel, a judge thereof, Respondent Judge,
Roy ROMANO, Real Party in Interest.
No. 1 CA-SA 178.
Court of Appeals of Arizona,
Division 1, Department D.
June 7, 1988.
Review Denied Dec. 6, 1988.

Page 1132

[159 Ariz. 73] Brown & Bain, P.A. by Paul F. Eckstein, David J. Bodney, and Daniel C. Barr, Phoenix, for petitioners.

Marton & Hall, P.A. by Kraig J. Marton and Sarah J. Odneal, Phoenix, for real party in interest.

OPINION

FIDEL, Judge.

Roy Romano, a publicly self-acknowledged former hoodlum and organized crime enforcer, sues Scottsdale Publishing, Inc., the owner of the Scottsdale Progress, for damaging his reputation by linking him to the Don Bolles bombing in a series of newspaper articles in the summer of 1984. He also sues Jonathan Marshall, the Progress publisher, who wrote one of the articles, Don Devereux, the reporter who wrote two of the articles, and the spouses of both men. 1 Romano seeks compensatory and punitive damages.

The Progress unsuccessfully moved for summary judgment. The trial court denied its motion and instead granted partial summary judgment for Romano, declaring Romano a private figure, who had only to prove negligent defamatory publication to win compensatory damages. 2 The Progress now asks by petition for special action that we reverse the trial court's decision and direct summary judgment in its favor against the entirety of Romano's claim or, alternatively, against his claim for punitive damages.

First, the Progress argues that the trial court erroneously declared Romano a private figure. Romano, the Progress points out, had stepped onto the public stage in the fall of 1983, when, in return for immunity from prosecution, he "turned state's evidence" against Joseph Tocco and gave detailed testimony about his own criminal activities as a member of the Tocco [159 Ariz. 74]

Page 1133

"gang." By this testimony, the Progress argues, Romano became a public figure, subject to expansive journalistic scrutiny and comment on his criminal past; concomitantly, he relinquished the right to sue for negligent falsehoods emerging from such scrutiny and retained only the right to recover for knowing or reckless defamatory falsehoods. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 724 P.2d 562 (1986). Romano, the Progress urges, failed to come forward with clear and convincing evidence of knowing or reckless defamation and thus should face complete dismissal of his suit.

Second, the Progress urges this court to adopt the "libel-proof plaintiff doctrine," heretofore unapplied in Arizona, and to conclude that the trial court erred in failing to hold as a matter of law that Romano's reputation was so poor before the Progress publications that he was incapable of being defamed. See, e.g., Note, The Libel-Proof Plaintiff Doctrine, 98 Harv.L.Rev. 1909 (1985); Guccione v. Hustler Magazine, Inc., 800 F.2d 298 (2d Cir.1986) cert. denied, 479 U.S. 1091, 107 S.Ct. 1303, 94 L.Ed.2d 158 (1987); for criticism of the doctrine, see also Liberty Lobby v. Anderson, 746 F.2d 1563 (D.C.Cir.1984), rev'd on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Finally, the Progress argues that Romano failed to meet its motion for summary judgment with any evidence to support his punitive damage claim. In the absence of evidence that it acted with "actual malice", Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), or an "evil mind", Gurule v. Illinois Mut. Life Cas. & Co., 152 Ariz. 600, 734 P.2d 85 (1987), the Progress claims entitlement to partial summary judgment on the issue of punitive damages, even if Romano's compensatory damage claim survives.

We accept the first of the Progress arguments. We hold that Romano had become a public figure before the publication of the Progress articles, that he had opened questions of his criminal conduct to journalistic scrutiny and public concern, and that the Progress articles fell within that area of public concern. We further find no basis in Romano's evidence for the inference that the Progress knowingly published falsehoods about Romano. Nor do we find any basis for the inference that the Progress "entertained serious doubts as to the truth of [its] publications" and proceeded in reckless or conscious disregard of such doubts. St. Amant v. Thompson, 390 U.S. 727, 731-2, 88 S.Ct. 1323, 1325-6, 20 L.Ed.2d 262, 267-8 (1968); Dombey, 150 Ariz. at 487, 724 P.2d at 573. Because these holdings result in the complete dismissal of Romano's claim, we need not separately consider the punitive damage portion of that claim. Nor need we reach the second argument of the Progress and determine whether the "libel-proof plaintiff doctrine" should be adopted into Arizona law.

I. Special Action Jurisdiction

Before outlining the facts and explaining our holding, we explain our reason for taking jurisdiction.

Review by special action of a trial court's denial of summary judgment is a rarity and shall remain so. We have discouraged even the filing of such petitions in the past and shall continue to do so. See United States v. Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). We make an exception in this case in furtherance of the public's significant first amendment interest in protecting the press from the chill of meritless libel actions. See, e.g., Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C.Cir.1966); Schiavone Constr. Co. v. Time, Inc., 619 F.Supp. 684, 686 (D.N.J.1985).

The absence of merit in plaintiff's case is plain. By taking jurisdiction at this stage, we relieve the parties and the court of a prolonged, costly, and inevitably futile trial; additionally, and more significantly, we relieve the Progress of a potential chilling of its future reporting on activities of organized crime.

Page 1134

159 Ariz. 75

II. Was Romano a Public Figure

The first amendment has been interpreted since New York Times v. Sullivan to extend journalists a wider margin of error in reporting about public figures than in reporting about private figures. In a libel action arising from a publication addressing a matter of public concern, a private figure may recover compensatory damages upon proof by preponderant evidence that he has been negligently defamed. Dombey, 150 Ariz. at 481, 724 P.2d at 567. A public figure, by contrast, "may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, 807 (1974).

Proving knowledge of falsity or reckless disregard for truth is defined in legal shorthand as proving "actual malice." 3 New York Times v. Sullivan, 376 U.S. at 279, 280, 84 S.Ct. at 726, 11 L.Ed.2d at 706.

We determine in this section that Romano must be held to the burden of proving actual malice. We proceed first by examining the three allegedly defamatory publications by the Progress, next by examining Romano's pre-Progress exposure to public scrutiny, and last by analyzing Romano's status as a public figure.

A. The Allegedly Defamatory Publications

1. The June 22 Article:

On June 22, 1984, the Progress published an article by Don Devereux entitled "Mob figure accused of Bolles bombing." The subject of the article was Roy Romano, who had surfaced in the public eye in the fall of 1983, when he had testified as a state's witness at the pre-sentence hearing for Joseph Tocco pursuant to a grant of immunity from the Arizona Attorney General's Office. The June 22 article reported that an unnamed source, interviewed in connection with the Tocco matter, had accused Romano of "placing a deadly bomb beneath the car of Phoenix newsman Don Bolles and detonating it" in 1976. We quote the article in part:

The accusation against Romano was made in a 1983 tape-recorded interview by Chicago attorney Santo Volpe with an Arizona source whose identity is being withheld from publication for the person's safety.

Until his withdrawal from the case six months ago, Volpe was legal counsel for purported Phoenix mob figure Joseph "Buddy" Tocco, a former Chicagoan, in criminal prosecution unrelated to the Bolles homicide.

The claim of Romano's alleged connection with the Bolles murder apparently came unexpectedly as Volpe was developing background information on Romano and Sam Garee, both of whom were police informants against his client, another source close to the Tocco case told the Progress.

A segment of the lengthy 1983 interview dealing with the Bolles murder, obtained this week by the newspaper, follows:

VOLPE: "Let me ask you, do you know a fellow by the name of Roy Romano?

SOURCE: "Yes. Oh, yeah. I know Roy. You don't want to mess with Roy."

VOLPE: "How come?"

SOURCE: "He's a mechanic."

VOLPE: "Meaning what?"

SOURCE: "He works on people's bodies, breaks your legs, your arm. He's killed several people. He was the one who put the bomb in that, uh, that, uh, that reporter's car out here and blew up the car. Roy Romano was the one because I've heard him talking about it. Roy, if you do wrong, Roy gets sent out. And if Roy sends out after you, you don't want to get caught."

Later in the interview, the source complained that as a result of Romano having "turned state's evidence" against Tocco, "they're letting a killer walk free.

Page 1135

[159 Ariz. 76] Romano will kill ya. He is not playing with a full deck of cards. He never has. And he gets his kicks out of...

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