Steere v. Cupp, 49858

• Decision Date: 15 November 1979
• Docket Number: No. 49858,49858
• Citation: 602 P.2d 1267,226 Kan. 566
• Parties: , 5 Media L. Rep. 2046 Myron S. STEERE, Appellant, v. Roderick B. CUPP et al., Appellees.
• Court: Kansas Supreme Court

Page 1267

602 P.2d 1267

226 Kan. 566, 5 Media L. Rep. 2046

Myron S. STEERE, Appellant, v. Roderick B. CUPP et al., Appellees.

No. 49858.

Supreme Court of Kansas.

Nov. 15, 1979.

Syllabus by the Court

In an action for libel against members of the news media, the record is examined and it is Held : (1) an attorney who has practiced law in a community for 32 years, served as county attorney 8 years, participated as a business, social and professional leader in the community and acts as defense counsel in a highly publicized murder case is a public figure for general purposes and actual malice must be proven for liability to attach; (2) where the published statements are substantially true there is no malice; (3) summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought.

Morris D. Hildreth of Becker, Hildreth, Eastman & Gossard, Coffeyville, argued the cause and was on brief, for appellant.

Robert E. Northrip of Shook, Hardy & Bacon, Kansas City, Mo., argued the cause and John T. Martin and Sam L. Colville, Kansas City, Mo., and George A. Lowe of Lowe, Terry & Roberts, Olathe, were with him on brief, for appellee The Kansas City Star Co.

Milton P. Allen of Allen & Cooley, Lawrence, argued the cause and was on brief, for appellee The World Co.

Thomas Ruzicka of Breyfogle, Gardner, Davis & Kreamer, Olathe, argued the cause and Robert W. Green of Robert W. Green, Chartered, Ottawa, and William H. Sanders of Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., were with him on brief, for appellees Ottawa Herald, Inc., Robert B. Wellington and Harris Enterprises, Inc.

Larry J. Tyrl of James, Odegard, Millert & Houdek, Kansas City, Mo., argued the cause and J. D. James, Kansas City, Mo., and Edward M. Boyle of Payne & Jones, Chartered, Olathe, and Richard N. Winfield and Andrew M. Low of Rogers & Wells, New York City, were with him on brief, for appellee the Associated Press.

John L. Richeson of Anderson, Byrd & Richeson, Ottawa, argued the cause and was on brief, for appellees Roderick B. Cupp, Edwina W. Cupp, B. H. Brewer d/b/a Ottawa Broadcasting Co., and Ken MacNevin.

HERD, Justice:

This is an action for libel arising out of publication of a series of articles regarding the events surrounding plaintiff Myron S. Steere's defense of Nellie L. Schoonover in a trial for first degree murder and his subsequent public censure by this court. Defendants in this action are Roderick B. Cupp, Edwina W. Cupp, B. H. Brewer d/b/a Ottawa Broadcasting Company; Ken MacNevin; Ottawa Herald Inc.; Robert B. Wellington; Harris Enterprises, Inc.; The Kansas City Star Co., Inc.; The World Co.; and the Associated Press. The trial court granted defendants' motion for summary judgment and Steere appeals. We affirm.

The facts giving rise to this action are lengthy but necessary for a full picture of the case. Plaintiff, Myron S. Steere, is an attorney admitted to practice in the State of Kansas. In 1973, he represented Nellie Schoonover, who was charged with the murder of her husband. The Schoonover trial and its significance to this case will be discussed later in this opinion. Defendants Roderick B. Cupp, Edwina W. Cupp and B. H. Brewer do business as Ottawa Broadcasting Co. and Ken MacNevin is a reporter and newscaster for the station. They operate radio station KOFO in Ottawa. Defendant, Ottawa Herald, Inc. is a Kansas corporation which publishes the Ottawa Herald, a daily newspaper circulated in Northeast Kansas. The editor of the paper is Robert B. Wellington. Harris Enterprises, Inc. is a Kansas corporation and is the majority stockholder in Ottawa Herald, Inc. The Kansas City Star Co. is a Missouri corporation which owns and publishes The Kansas City Star and The Kansas City Times. The World Co. is a Kansas corporation which owns and publishes the Lawrence Daily Journal-World. The Associated Press (AP) is a non-profit New York membership corporation engaged in the collection and dissemination of news for publication or broadcast by its members and subscribers. The Ottawa Broadcasting Co., the Ottawa Herald, Inc., Harris Enterprises, Inc., The Kansas City Star Company and The World Company are members of AP.

J. W. Schoonover was found murdered at his home on October 24, 1973. When his wife, Nellie, was suspected of the crime, she employed plaintiff to represent her. Three days later, Nellie Schoonover was charged with first degree murder and plaintiff was appointed her attorney under the Indigent Defendant Act. K.S.A. 22-4501 Et seq. On March 4, 1974, while acting as Mrs. Schoonover's attorney, Steere entered into a contingent fee contract with her. It provided that if Mrs. Schoonover were acquitted of murder or convicted of a crime which would not deprive her of her right of inheritance from her husband, plaintiff would receive all of her inheritance, less $10,000.00. The contract was drafted by Steere but its existence was kept secret until plaintiff withdrew as counsel after trial. Nellie Schoonover was convicted of first degree murder on March 25, 1974, and thereafter, in May 1974, plaintiff submitted his claim voucher in the amount, of $4,229.48 to the State for his attorney's fee. The claim was paid.

After Steere was permitted to withdraw, Mrs. Schoonover's new counsel revealed the contingent fee contract and initiated a proceeding pursuant to K.S.A. 60-1507, alleging she had been denied her right to effective counsel. Mrs. Schoonover testified plaintiff presented the contract to her and told her if she wanted him to continue to represent her, she would have to sign the contract. The district court denied Mrs. Schoonover's motion to set aside the conviction and referred the matter of plaintiff's possible misconduct to the disciplinary administrator for investigation. She appealed the trial court's denial of the motion to this court. The primary issue on appeal was whether the existence of the contingent fee contract amounted to ineffective assistance of counsel. We held counsel had indeed been guilty of unprofessional conduct in entering into the contract with his client in a criminal action. We, however, refused to find a violation of the constitutional rights of the accused and affirmed the trial court. Schoonover v. State, 218 Kan. 377, 543 P.2d 881 (1975), Cert. denied 424 U.S. 944, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976).

The State Board of Law Examiners found Steere had violated DR 2-106(C) (214 Kan. lxxxii) by entering into a contingent fee contract in a criminal case:

"(T)he State has stipulated that the respondent had no intent to violate the disciplinary rule or the law and the contingent fee contract was an oversight. The State further stipulated the contingent fee contract was entered into at the suggestion of Nellie L. Schoonover. The panel is of the opinion that there is a disputed question of fact on that issue, but we accept the stipulation . . . ."

The panel recommended public censure which Steere accepted. The discipline was ordered invoked by this court. In re Steere, 217 Kan. 276, 536 P.2d 54 (1975).

On May 28, 1975, Ken MacNevin, working for KOFO Radio, telephoned the disciplinary administrator's office and spoke to then administrator Earl Hatcher. He requested the status of the case involving the contingent fee contract. Mr. Hatcher informed him a decision had been reached but it could not be disclosed until it had been filed with the Clerk of the Supreme Court. MacNevin subsequently called Lewis Carter, Clerk of the Supreme Court, who informed him plaintiff had been publicly censured. MacNevin composed a news account of the matter and the story was broadcast over KOFO Radio that day. No allegations are made by plaintiff regarding this news account. MacNevin then called Huell Warren of the Associated Press in Kansas City and relayed the information Mr. Carter had given him. Warren telephoned Lew Ferguson, the AP correspondent in charge of the Topeka Bureau to check out the story in further detail. He requested that Ferguson verify the recommendation of the State Board of Law Examiners. Ferguson telephoned Mr. Carter and was informed no recommendation had been made. Ferguson telephoned Warren and advised him to hold the story until it could be confirmed. Later in the afternoon on May 28, 1975, Ferguson again telephoned Mr. Carter and learned that the panel had recommended that plaintiff be publicly censured. Carter informed Ferguson that although the story was not formally released to the public, Ferguson could proceed with his reporting of the matter because other individuals in the Ottawa area had obtained the same information from either his office or from the office of the disciplinary administrator. No details were given by Carter regarding the panel's findings and conclusions. Ferguson called Warren about the conversation he had had with Carter. Warren then prepared a news report based upon the information he had received from Ferguson and MacNevin. It stated:

"Topeka, Kan. (AP) The State Board of Law Examiners recommended to the Kansas Supreme Court Wednesday that it publicly censure a lawyer at Ottawa, Kan., for his conduct of the defense in a sensational murder case.

"The examiners found that Myron S. Steere required Mrs. Nellie Schoonover to enter a contingency agreement with him after he was appointed to defend her in Franklin County District Court.

"In her plea for a new trial after she had been convicted and sentenced to life in prison for slaying her 80-year-old husband, Mrs. Schoonover testified that Steere got her to agree to give him all but $10,000 of Schoonover's estate if he was able to obtain her acquittal.

"Such a contingency agreement is a violation of the code of ethics of the Kansas Bar Association. Judge Michael Barbara of Topeka, who presided in the Schoonover trial on a special assignment, said he would call Mrs....