Smith v. McDonald

• Decision Date: 28 April 1983
• Docket Number: Civ. A. No. C-81-475-G.
• Citation: 562 F. Supp. 829
• Court: U.S. District Court — Middle District of North Carolina
• Parties: David I. SMITH, Plaintiff, v. Robert McDONALD, Defendant.

562 F. Supp. 829

David I. SMITH, Plaintiff, v. Robert McDONALD, Defendant.

Civ. A. No. C-81-475-G.

United States District Court, M.D. North Carolina, Greensboro Division.

April 28, 1983.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

B.F. Wood, Latham, Wood & Abernathy, Graham, N.C., for plaintiff.

Bruce J. Ennis and Geoffrey P. Miller, Ennis, Friedman, Bersoff & Ewing, Washington, D.C., McNeill Smith and H. Miles Foy, III, Smith, Moore, Smith, Schell & Hunter, Greensboro, N.C., for defendant.

MEMORANDUM OPINION

BULLOCK, District Judge.

David I. Smith, a citizen of the State of North Carolina, filed this action for libel in the North Carolina General Court of Justice, Superior Court Division of Alamance County, on July 24, 1981. The complaint alleges that, following the general election of 1980, Smith applied for the position of United States Attorney for the Middle District of North Carolina and that he was being "seriously considered" for such position by the relevant authorities. Smith's cause of action is based upon two letters written by the Defendant, Robert McDonald, and sent by him to the President of the United States, Ronald Reagan, urging the President not to appoint Smith as United States Attorney. Copies of the letters were also allegedly mailed by McDonald to several members of Congress, to Edwin Meese, Chief Counselor to the President and Chairman of the Transition Team, and to William Webster, Director of the Federal Bureau of Investigation.

The complaint states that McDonald composed the letters "wilfully and maliciously and with evil and wicked intent." Smith also alleges that the letters contain:

False, slanderous, libelous, inflamatory sic and derogatory statements and allegations of and concerning the plaintiff ... that the defendant knew ... were false and untrue and that same were made with the specific and malicious intent to harm the plaintiff in his personal life and in his profession as an attorney ... and for the further express and malicious purpose of harming and damaging the plaintiff's application and chances to be appointed as the United States Attorney for the Middle District of North Carolina.

Complaint, ¶ 5.

Smith was not selected by the President to serve as U.S. Attorney and thereafter commenced this action in state court. On August 25, 1981, McDonald petitioned for removal to this court pursuant to 28 U.S.C. § 1441. In the petition McDonald argued that he was a citizen of the Commonwealth of Virginia on the date this action was filed and that, therefore, the court had original diversity jurisdiction over the subject matter. See 28 U.S.C. § 1332.

On September 24, 1981, McDonald moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief could be granted. The motion was based upon McDonald's contention that communications made to an appointing authority regarding the character and qualifications of a candidate for public office are entitled to an absolute privilege under the common law. On October 2, 1981, Smith filed a motion to remand the case to state court on the grounds that McDonald was a citizen of the state of North Carolina on the date the action was commenced. Both McDonald's motion to dismiss and Smith's motion to remand were denied by the Honorable Eugene A. Gordon, United States District Judge for the Middle District of North Carolina, by order dated March 19, 1982.

The matter currently before the court is McDonald's motion for judgment on the pleadings, Fed.R.Civ.P. 12(c), filed along with his answer on August 9, 1982. The crux of McDonald's argument rests upon his contention that the conduct with which he is charged by Smith is absolutely privileged under the "petition" clause of the first amendment of the Constitution of the United States. Restricting its consideration solely to the constitutional issues addressed by the parties,¹ the court determines that McDonald is entitled to only a qualified privilege under the first amendment and that his motion for judgment on the pleadings must therefore be denied.

I. COMMON LAW ELEMENTS OF AN ACTION FOR LIBEL

In order to consider McDonald's claim of constitutionally-based "privilege," the court finds it necessary to review the elements of an action for libel in conjunction with the common law defense of "privilege." For guidance, the court turns to decisions by the North Carolina courts.

A libel, as applied to individuals, is a malicious publication expressed either in printing or writing or by sign or picture tending to blacken the memory of one dead or the reputation of one alive and to expose him to public hatred, contempt, or ridicule. Davis v. Askin's Retail Stores, Inc., 211 N.C. 551, 191 S.E. 33, 34 (1937). To constitute a "publication" of allegedly defamatory matter, it is necessary that some third person understand the defamatory matter. Wright v. Commercial Credit Co., 212 N.C. 87, 192 S.E. 844, 845 (1937). Letters written to public officials commenting on the fitness of subordinates have been found to constitute "publication" for purposes of maintaining an action for libel. Angel v. Ward, 43 N.C.App. 288, 258 S.E.2d 788 (1979); Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962); Alexander v. Vann, 180 N.C. 187, 104 S.E. 360 (1920); Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891). Also see White v. Nicholls, 44 U.S. (3 How.) 266, 11 L.Ed. 591 (1845).

Defamatory matter, written or printed, may be libelous and actionable per se, without any allegation of special damages, if it tends to expose the plaintiff to "public hatred, contempt, ridicule, aversion, or disgrace and to induce an evil opinion of him in the minds of right thinking persons ...." Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55, 60 (1938).² To be libelous per se, defamatory words must be susceptible of but one meaning and of such nature that the court can presume as a matter of law that they tend to disgrace and degrade the party. Publications are to be taken in the sense which is most obvious and natural and according to the ideas they are calculated to convey.³

Under the common law, privilege is a question of law to be determined by the courts. Stewart v. Nation-Wide Check Corp., 279 N.C. 278, 182 S.E.2d 410, 414 (1971); Hartsfield v. Harvey C. Hines Co., 200 N.C. 356, 157 S.E. 16, 19 (1931); Gattis v. Kilgo, 140 N.C. 106, 52 S.E. 249, 250 (1905). Privilege is determined primarily by the occasion and circumstances under which the statement is made. Stewart v. Nation-Wide Check Corp., 182 S.E.2d at 415. Privileged communications may be either "absolutely privileged" or "qualifiedly privileged." Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891).

In the state of North Carolina, when a court determines that a publication is actionable per se, the law presumes malice and the burden is on the defendant to show that his charge is true. But in a case of absolute privilege no action can be maintained, even though it can be shown that the charge was both false and malicious. In a case of qualified privilege, an action may be maintained if the plaintiff can prove both the falsity of the charge and that it was made with actual malice. Hartsfield v. Harvey C. Hines Co., 157 S.E. at 19; Newberry v. Willis, 195 N.C. 302, 142 S.E. 10 (1928); Bird v. Hudson, 113 N.C. 203, 18 S.E. 209, 210 (1893).

Absolute privilege has been confined "by general agreement" to only those situations "where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives." PROSSER, LAW OF TORTS, § 114 (4th ed. 1971). In the state of North Carolina, absolute privilege has been limited to "words used in debate in Congress and the state legislatures, reports of military or other officers to their superiors in the line of duty, everything said by a judge on the bench, by a witness in the box, and the like." Ramsey v. Cheek, 13 S.E. at 775. Also see Bailey v. McGill, 247 N.C. 286, 100 S.E.2d 860, 866 (1957); Jarman v. Offutt, 239 N.C. 468, 80 S.E.2d 248, 251 (1954); Mitchell v. Bailey, 222 N.C. 757, 23 S.E.2d 829 (1943). The privilege attending communications made in the course of judicial proceedings has been extended to communications in an administrative proceeding where the administrative officer or agency is acting in a judicial or quasi-judicial function. Angel v. Ward, 43 N.C.App. 288, 258 S.E.2d 788, 792 (1979); Mazzucco v. Board of Medical Examiners, 31 N.C.App. 47, 228 S.E.2d 529, 532, appeal dismissed, 291 N.C. 323, 230 S.E.2d 676 (1976).

Under the common law of North Carolina, communications to public officials regarding the fitness of subordinates for public office are entitled to only a qualified privilege. Angel v. Ward, 43 N.C.App. 288, 258 S.E.2d 788 (1979); Dellinger v. Belk, 34 N.C.App. 488, 238 S.E.2d 788 (1977), dis. rev. denied, 294 N.C. 182, 241 S.E.2d 517 (1978); Ponder v. Cobb, 257 N.C. 281, 126 S.E.2d 67 (1962); Alexander v. Vann, 180 N.C. 187, 104 S.E. 360 (1920); Ramsey v. Cheek, 109 N.C. 270, 13 S.E. 775 (1891). In such cases, the plaintiff can therefore recover only if he can prove the malicious intent of the defendant and the falsity of the statements. Angel v. Ward, 258 S.E.2d at 791; Dellinger v. Belk, 238 S.E.2d at 789; Ponder v. Cobb, 126 S.E.2d at 80; Alexander v. Vann, 104 S.E. at 361; Ramsey v. Cheek, 13 S.E. at 775.

Were the instant case governed solely by the common law, McDonald would be clearly entitled to only a qualified privilege.

II. CONSTITUTIONAL ISSUES

The first amendment to the United States Constitution states that: "Congress shall make no law ... abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S.C.A. Const.Amend. I. The first amendment thus expressly protects the right of the people to petition the government for a redress of grievances. That right, the...