State v. Carpenter

• Decision Date: 26 October 2007
• Docket Number: No. S-10709.,No. S-10700.,No. S-10739.,S-10700.,S-10709.,S-10739.
• Citation: 171 P.3d 41
• Parties: STATE of Alaska, Appellant, v. Karen CARPENTER, Westwood One, and Tom Leykis, Appellees. Karen Carpenter, Appellant, v. Westwood One and Tom Leykis, Appellees. Westwood One and Tom Leykis, Appellants, v. Karen Carpenter, Appellee.
• Court: Alaska Supreme Court

171 P.3d 41

STATE of Alaska, Appellant, v. Karen CARPENTER, Westwood One, and Tom Leykis, Appellees.

Karen Carpenter, Appellant, v. Westwood One and Tom Leykis, Appellees.

Westwood One and Tom Leykis, Appellants, v. Karen Carpenter, Appellee.

No. S-10700.

No. S-10709.

No. S-10739.

Supreme Court of Alaska.

October 26, 2007.

Jason T. Mogel, Assistant Attorney General, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the State of Alaska.

Ray R. Brown and Linda M. O'Bannon, Dillon & Findley, P.C., Anchorage, and Jack B. McGee, Law Office of Jack B. McGee, Juneau, for Karen Carpenter.

Leslie Longenbaugh and L. Merrill Lowden, Simpson, Tillinghast, Sorensen & Longenbaugh, Juneau, for Westwood One and Tom Leykis.

Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Juneau resident Karen Carpenter wrote a letter to a Juneau radio station complaining about the Tom Leykis Show, a national radio talk show broadcast locally by the station. The station forwarded her letter to Tom Leykis, who read it on the air while making derogatory and sexually explicit remarks about Carpenter and making other comments that allegedly inflamed listeners and encouraged them to contact or confront Carpenter. Carpenter sued Leykis and his producer, Westwood One, for defamation, intentional and negligent infliction of emotional distress, and invasion of privacy. She also sued for spoliation of evidence, claiming Westwood One and Leykis intentionally destroyed the tape of part of the show. The superior court granted summary judgment against Carpenter on her defamation, negligent infliction of emotional distress, and false light privacy claims, but submitted her spoliation, intentional infliction of emotional distress (IIED), and "intrusion upon seclusion" claims to a jury. The jury found for Leykis and Westwood One on the IIED and intrusion claims and found for Carpenter against Westwood One on the spoliation claim and awarded her compensatory and punitive damages against Westwood One. The parties appeal rulings concerning the defamation, privacy, and IIED claims. Westwood One challenges the spoliation verdict and the damage awards. Carpenter disputes the constitutionality of allocating part of the punitive damages award to the State of Alaska, and she and the state raise questions about how that allocation should have been calculated. We reverse in part and remand because we conclude that Instruction No. 17 erroneously limited the jury's consideration of Carpenter's IIED claim. With a minor exception relating to costs, we otherwise affirm the superior court's rulings.

II. FACTS AND PROCEEDINGS

Tom Leykis is a "radio personality"; in 1998 he hosted the Tom Leykis Show, a four-hour radio talk show. Sex-related topics were a common feature of the program. Westwood One, Inc. produced and distributed the show as a live radio program broadcast five days a week by radio stations nationwide. Juneau AM radio station KJNO broadcast the show weekdays from two to six p.m. in the Juneau area between June 8 and July 24, 1998.

Karen Carpenter, a Juneau resident, first heard the show on July 20, 1998. Carpenter testified at trial that she was concerned about its content, and expressed her concerns to a City and Borough of Juneau assembly member on July 21 and also made or tried to make various inquiries to other government officials asking about decency laws. Carpenter testified that she contacted "three or four" KJNO advertisers on July 22 and asked them if they knew their ads were being run during the Tom Leykis Show and whether they wanted their advertising dollars to support the content of the show. Carpenter then faxed KJNO a letter stating that she found "the majority" of the show "very offensive" and that she thought it was unsuitable to air when children might be listening. Her letter informed KJNO that she had contacted and would continue to contact Juneau radio advertisers whose ads ran during the Tom Leykis Show and that she would "do everything in [her] power to have the show taken off the air as soon as possible." The station placed the letter, which displayed Carpenter's fax number, in its "public file." Someone at KJNO faxed a copy of the letter to the Tom Leykis Show in California with a handwritten note, "Have fun." Carpenter testified that she was unaware that, as required by federal regulations, the letter would be placed in the station's public file.¹

Around that time, Steve Rhyner, KJNO's station manager, decided to take the Tom Leykis Show off the air because major advertisers had complained about the program and Rhyner objected to the content of one particular show. July 24, 1998 was the last day the Tom Leykis Show was broadcast in Juneau.

During the July 24 broadcast, Leykis made several remarks about KJNO's cancellation of the show and Carpenter's letter. He described those who objected to the show as "some small band of old prunes and old blue-hairs, nut cases and all these cretins." He said: "[A]fter we go, keep an eye on our web site. I'm going to find out who these people are [who cancelled the show], and we'll put it up on the web site." He complained "I hate those—those old biddies who sit out there and have nothing better to do than to write in to radio stations." He also said: "Maybe if this woman had gotten laid in the last 50 years, who writes into the station and started making all these waves, maybe she wouldn't be complaining so much. I'm not kidding." After reading Carpenter's letter on the air, Leykis commented:

And it's signed, the woman who wrote the letter—it's signed: Karen Carpenter. Well Karen, I have a little something that you could use right about now. [buzzing sound intended to simulate the sound of a vibrator]

Sit on this, you old prune. Come on, get close to the radio. Get right on top of the speaker, baby. You moron. You jerk. You and your little band of nut cases out there, trying to decide what's going to be on the radio in Juneau, Alaska. You know, maybe you ought to go out and get laid once in awhile, huh? [buzzing sound]

You cretin. Are your nipples getting hard yet, baby? Feel the power. You can't stop this show. Oh, you can stop Juneau, Alaska. But you can't stop me. . . .

You and your stupid—your stupid church and your stupid religion, and you and your stupid god damned bunch of marauders. You morons. Jerks.

I'm enjoying this. I'm sporting wood right now, just thinking about it. Woo hoo. . . .

. . . .

Oh, Karen Carpenter. Karen Carpenter wanted our show off the air. No, not that Karen Carpenter. But Karen, sit on it, baby. [buzzing sound] Oh, yeah. See, if you got more of this, you wouldn't be writing complaint letters to the station.

Later in the show, a Juneau caller attempted to broadcast Carpenter's home telephone and fax numbers, which were listed in the local telephone directory under "K.L. Carpenter," and expressed the hope that people would "send her faxes." The telephone number was partially bleeped out. Around this time, according to the trial testimony of one of Carpenter's friends, Leykis also encouraged his listeners to make Carpenter's telephone "ring off the hook." Later in the program a Juneau fan called in to praise the show. Leykis responded: "Well, we hate to lose you, but like I say, stay tuned, `cause we're going to get back on in Juneau. . . . And we're going to make that woman's life a living hell." According to the trial testimony of another of Carpenter's friends, this "living hell" comment was "used repeatedly throughout the broadcast."

Carpenter heard the first part of the broadcast and learned about other parts of the show from friends who had heard it. She testified later that she felt humiliated and sexually violated. She testified that she received a telephone message at her home that repeated part of what Leykis had said about her. She also received several "threatening" faxes at her home. Carpenter was later diagnosed with post-traumatic stress syndrome and an anxiety disorder.

The Tom Leykis Show was recorded in the studio on VHS videotapes as the show aired. These tapes were stored in a drawer in the studio; as soon as the drawer was full, the tapes were recycled, erasing the recordings. There were various estimates of how long the tapes stayed in the drawer. A Westwood One executive estimated they stayed there four to six months, while the show's producer testified that "judging by the size of the drawer, [the tapes] go back six to eight months, or approximately a year."

Carpenter wrote in an affidavit that she "believe[d]" she requested a copy of the July 24, 1998 tape from Westwood One and never received a response, and at trial she testified with certainty to having requested a copy. She also made several requests through her lawyers. Attorney Robert Reges testified that he sent an email to KJNO requesting a tape "soon after" the July 24 broadcast. An affidavit from KJNO employee Justin McDonald indicates that Reges did not identify himself as a lawyer, and did not admit the true purpose of his request.

On December 24, 1998, five months after the broadcast, another Carpenter attorney, Jim Douglas, wrote a letter to KJNO and Westwood One, requesting a tape and making it clear that legal action might be forthcoming. No address was given for Westwood One, just the name of the company and its street address in California. Westwood One employees testified that they had not seen the letter, but the show's producer testified to a general recollection that the company's legal department had requested the tape and that upon receiving such a request he would have made a copy of the tape and sent it to the legal department. He recalled that a copy "was found." He also testified that he "would not intentionally have altered or destroyed a tape of th[e] show, and that he did not do so." Douglas testified that he never received a response from Westwood...