Sparks v. Boone
| Decision Date | 23 December 1977 |
| Citation | 560 S.W.2d 236 |
| Court | Kentucky Court of Appeals |
| Parties | Harry M. SPARKS, Appellant, v. Jimmy BOONE, Appellee. |
Nat Ryan Hughes, Murray, for appellant.
Henry O. Whitlow, Thomas B. Russell, Threlkeld, Whitlow & Roberts, Paducah, for appellee.
Before HOWERTON, COOPER and HAYES, JJ.
This is an appeal from a jury verdict dismissing appellant Sparks's libel action against the appellee Boone.
In May 1975, appellant was one of three candidates for state senator in the Democratic primary. Appellant had previously served as Superintendent of Public Instruction for the Commonwealth of Kentucky, an elected office, and he had also served as President of Murray State University until his retirement on September 15, 1973.
On Saturday, May 24, 1975, The Murray Ledger & Times published a letter from the appellee in its "Letter to the Editor" section. The letter referred to three subjects during the term appellant served as President of the University. They were (1) a decline in enrollment of full-time students, (2) unresolved tenure problems, and (3) the University's financial condition at the end of appellant's term.
The election was held the following Tuesday, and appellant was defeated.
The center of controversy is the letter, which we herewith quote in full:
Dear Sir:
The upcoming Senate election for the Kentucky General Assembly is a political contest of considerable importance for the citizens of Murray and Calloway County. At a time when more Kentuckians are unemployed than at any other time since the Depression of the 1930's, business is stagnating, and our young people encounter difficulties in finding employment, we need dynamic, imaginative and responsive leadership in Frankfort.
The Murray Ledger & Times, which has served this community well for more than twenty years, has endorsed the candidacy of Dr. Harry Sparks, former President of Murray State University. Usually, I find myself in agreement with the endorsements of our local paper, however, in this endorsement I feel compelled to register my objections. In both its editorial and feature columns, the Ledger & Times has implied Harry Sparks represents strong leadership for Murray and Calloway County. Political leadership, it seems to me, might include forthrightness, openness, the willingness to make needed decisions in the face of unpleasant facts and fiscal responsibility.
A survey of student enrollment at Murray State University will reveal shortly after Dr. Sparks' inauguration as President the number of students full-time enrolling at the University began to decline. Significantly. The decline continued until only recently. Yet in the registrative figures released by the University during Dr. Sparks' tenure as President, that very serious situation was not made clear to the public. Why was the information not made public? What in his capacity as a leader did Dr. Sparks do about this serious problem? Is this forthrightness and openness?
In the face of a declining student enrollment and a tenure policy (adapted by the Sparks administration) regarding a tenure decision on a faculty member after six years of service, why was Harry Sparks' successor confronted with tenure decisions on faculty members who had between seven and eleven years of service? Harry Sparks left Deno Curris a legacy of unpleasant but vital decisions our candidate refused to make. Is that the willingness to make needed decisions in the face of unpleasant facts? Is that leadership?
Why, one might also ask, was Murray State University faced with a serious financial crisis at the time Dr. Sparks retired? What happened to the financial reserve built by Dr. Ralph Woods? Was it necessary to use those reserves to balance the budget? Did the University's financial condition at the end of Dr. Sparks' administration reflect fiscal responsibility or the capacity to make difficult decisions? I think not!
Normally, we are requested to cast our ballots on the basis of a candidate's record. The Ledger & Times has given you one part of the record. I have detailed other aspects of the record which seem to me to merit the serious consideration of you the voters.
s/Jimmy Boone
We have reviewed the record, and we have heard the arguments of counsel, and we are unable to find any proof of actual malice on the part of the appellee, nor has there been an attempt by the appellant to prove actual malice. Indeed, counsel for appellant stated at the close of his proof at trial that "malice need not be proven". Furthermore, we are unable to discover any proof that the publication was made with actual knowledge of its falsity, if any, nor was it made in reckless disregard of the truth.
At the close of all of the evidence, appellee moved for a directed verdict and cited four grounds. First, the words alleged to have been spoken were not libelous but were fair criticism of a candidate for public office. Second, the words complained of were substantially true. Third, at the time the words complained of were published, plaintiff (appellant) was a candidate for the office of Kentucky State Senator and, otherwise, plaintiff was a public figure. Under the provisions of the Constitution of the United States and the Constitution of Kentucky, Sparks is barred from asserting any action concerning the words of which he complained. Fourth, and finally, appellant has shown no malice of the appellee under the terms of the case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and the doctrine therein developed in subsequent Supreme Court cases.
The trial court overruled appellee's motion and instructed the jury as follows:
1. Published words are libelous and actionable per se, if they are false and directly tend to the prejudice or injury of anyone in his profession, trade or business.
If you believe from the evidence that the publication admittedly made by defendant did...
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