Tschirgi v. Lander Wyoming State Journal, 84-218

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before THOMAS; CARDINE
• Citation: 706 P.2d 1116
• Parties: 12 Media L. Rep. 1182 Arnold B. TSCHIRGI, Appellant (Plaintiff), v. LANDER WYOMING STATE JOURNAL, Appellee (Defendant).
• Docket Number: No. 84-218,84-218
• Decision Date: 03 October 1985

Page 1116

706 P.2d 1116 12 Media L. Rep. 1182 Arnold B. TSCHIRGI, Appellant (Plaintiff),
v.
LANDER WYOMING STATE JOURNAL, Appellee (Defendant). No. 84-218. Supreme Court of Wyoming. Oct. 3, 1985.
Rehearing Denied Oct. 23, 1985.

Page 1117

Arnold B. Tschirgi, Lander, pro se.

Charles G. Kepler of Simpson & Kepler, Cody, for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

CARDINE, Justice.

Appellant sought to recover damages resulting from the publication of alleged defamatory material by the Wyoming State Journal, a newspaper published at Lander, Wyoming. This appeal is from a summary judgment in favor of the Wyoming State Journal. We affirm.

The issue presented for our determination, as stated by appellant, is:

"When a county official acting as a private citizen (appellant) is stopped in another county for an alleged minor traffic violation and (1) passively declines to sign the citation and requests an opportunity to post bond, but (2) is threatened with several days in jail without an opportunity to post bond unless he signs the ticket, and (3) is then physically assaulted and arrested by the officers involved, but (4) remains passive and is not wrestled to the ground, can a newspaper (appellee) approximately nine months later publish that an opposing political candidate and the highway patrolman said that appellant 'was wrestled to the ground by a Rawlins highway patrolman' without [being liable] therfor * * *?"

Appellant was seeking election to a fourth term as county and prosecuting attorney for Fremont County, Wyoming. From August 12, 1982 through August 23, 1982, the Wyoming State Journal printed four articles concerning an incident which had occurred nine months earlier in which appellant had been arrested for a traffic violation. Appellant contends that portions of the articles published August 19, 1982 and August 23, 1982, were libelous in that they stated he was "wrestled to the ground" at the time of his arrest.

"When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record." Reno

Page 1118

Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). See also, Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, (1984), and Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334 (1983).

Appellant contends he was not "wrestled to the ground." It is undisputed that he was "wrestled against his car." Viewing the record in a light most favorable to appellant, we will, for purposes of considering the propriety of summary judgment, accept as true his contention that he was not wrestled to the ground, accepting also the undisputed fact that he was wrestled against his car.

The newspaper contends that the news stories published on August 19 and 23, to which appellant objects, were substantially true; that in any event appellant was a public official (county and prosecuting attorney for Fremont County, Wyoming at the time) and as such it must appear that the articles were published with malice or reckless disregard of whether they were true or not, and that the contrary appears from the uncontroverted facts before the court. Since we will find that the articles as published were substantially true, it is unnecessary for us to decide issues concerning appellant being a public official and whether there was malice, or reckless disregard in publication.

The portions of the news stories complained of are:

News Story of August 19, 1982.

"An incident where Fremont County and Prosecuting Attorney Arnold Tschirgi was allegedly wrestled to the ground by a Rawlins highway patrolman has surfaced in the heated election battle between Tschirgi and Rob Denhardt.

* * *

* * *

" * * * When Ventling issued a citation, Tschirgi refused to sign it, the officer said.

"Ventling said he then arrested Tschirgi, but the attorney refused to get out of his car. By this time, the officer said he had called two additional patrolmen.

" 'WE HAD TO drag him (Tschirgi) out of the car and wrestle him to the ground to get the handcuffs on,' Ventling said." (Emphasis added.)

News Story of August 23, 1982

"Denhardt had initially made the allegation that Tschirgi had to be wrestled to the ground. Last week, Ventling concurred with that statement. However, when contacted on Friday, Ventling said the county attorney was not wrestled to the ground, but against the car.

"Two highway patrol officers, who served as back-up during the incident, agreed with the rest of the statements Ventling made to the Journal last week.

"ACCORDING TO Wayne Vantine, a highway patrolman from Medicine Bow, he was at the 'highway shop' in Rawlins when he received a call from Ventling for back-up. The officer headed out to the scene,...