Verity v. U.S. Today, of Gannett Satellite Info. Network, LLC

• Decision Date: 04 March 2019
• Docket Number: Docket No. 45530
• Citation: Verity v. U.S. Today, of Gannett Satellite Info. Network, LLC, 164 Idaho 832, 436 P.3d 653 (Idaho 2019)
• Court: Idaho Supreme Court
• Parties: James VERITY and Sarahna Verity, Husband and Wife, Plaintiffs-Respondents, v. USA TODAY, a Division of Gannett Satellite Information Network, LLC, a Delaware Limited Liability Company; KTVB, a Division of King Broadcasting Company, a Washington Corporation; KGW, a Division of Sander Operating Co. III, LLC, a Delaware Limited Liability Company; Tami Tremblay, an Individual; Stephen Reilly, an Individual, Defendants-Appellants, and John/Jane Does. Defendants.

164 Idaho 832

436 P.3d 653

James VERITY and Sarahna Verity, Husband and Wife, Plaintiffs-Respondents,

v. USA TODAY, a Division of Gannett Satellite Information Network, LLC, a Delaware Limited Liability Company; KTVB, a Division of King Broadcasting Company, a Washington Corporation; KGW, a Division of Sander Operating Co. III, LLC, a Delaware Limited Liability Company; Tami Tremblay, an Individual; Stephen Reilly, an Individual, Defendants-Appellants,andJohn/Jane Does. Defendants.

Docket No. 45530

Supreme Court of Idaho, Boise, September 2018 Term.

Filed: March 4, 2019

Givens Pursley LLP, Boise, attorneys for Appellants. Debora K. Kristensen argued.

Shep Law Group, Meridian, attorneys for Respondents. Ronald Shepherd argued.

Charles A. Brown, Lewiston, and Ballard Spahr LLP, Washington D.C., attorneys for amici curiae.

BEVAN, Justice

I. NATURE OF THE CASE

This is a permissive appeal that presents a case of first impression regarding whether the tort of defamation by implication exists in Idaho. Respondent James Verity was a school teacher in Oregon who lost his teaching license after engaging in an inappropriate relationship with an eighteen-year-old female student, whom he coached at the local high school. He eventually obtained a teaching license in Idaho, and began teaching shortly thereafter. When he was forced to resign his teaching job in Idaho after USA TODAY, KTVB, KGW, Tami Tremblay, and Stephen Reilly published articles and broadcast news reports describing Verity's misdeeds, he and his wife Sarahna Verity filed a lawsuit alleging defamation by implication. The district court denied the media's motion for summary judgment and ruled that despite the actual truth of the statements, reasonable minds could find that the media impliedly defamed the Veritys. The media now appeals that decision as a permissive appeal under Idaho Appellate Rule 12.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Verity's History in Oregon and Idaho.

From 1998 until 2005, both James Verity and his wife Sarahna Verity (the "Veritys") held teaching positions with the Crook County School District in Prineville, Oregon. Mr. Verity taught middle school and coached several sports for the district, including varsity girls basketball and varsity girls softball at the high school. Ms. Verity taught physical education at the elementary school.

Sometime around spring of 2005, Verity began an inappropriate relationship with an eighteen-year-old female student whom he coached and used as a tutor for his middle school science class. Spanning over four months, the relationship involved approximately 2,625 text messages and over 500 hours of telephone conversations between Verity and the student, several of which occurred between the hours of 10:00 p.m. and 6:00 a.m. Notes were also exchanged. Eventually, the relationship escalated into inappropriate physical contact. Despite the sexual nature of the contact, there is no evidence that Verity and the student engaged in sexual intercourse.

In May of 2005, Crook County school officials learned of the relationship between Verity and the student. School officials contacted local law enforcement and an investigation ensued. Verity was placed on administrative leave from the school on May 26, 2005, while the school district completed its investigation. On July 11, a settlement agreement was reached, under which Verity would resign from his teaching position and the school district would inform the Oregon Teaching Standards and Practices Commission of Verity's resignation and the reasons behind it. Over the next year, the Oregon Commission investigated the matter for itself and on August 4th, 2006, it revoked Verity's Oregon teaching license. According to the revocation order, Verity could apply for the reinstatement of his license after one year, provided certain conditions were met.

A year later, Verity applied for reinstatement. Verity submitted two psychological evaluations with his application: one by James R. Hamer, MS, and the other by Dr. Michelle Whitehead. While Hamer concluded that Verity could return to teaching if he remained in counseling, Dr. Whitehead disagreed. Dr. Whitehead concluded that Verity should not be left alone with any female student over the age of 12 to avoid any misunderstanding on the part of female students. Citing Dr. Whitehead's evaluation, the Oregon commission declined to reinstate Verity's teaching license after a vote at a meeting in February 2008.

In March 2008, Verity applied for an Idaho teaching license. In his application, Verity disclosed to Idaho officials that his Oregon license had been revoked. On June 12, 2008, the Chief Certification Officer for Idaho's Department of Education, Christina Linder, denied Verity's application for an Idaho teaching license, based on Verity's conduct in Oregon and a discussion among the members of the Ethics Committee. Verity appealed this initial denial to the Idaho Department of Education's Professional Standards Commission ("Idaho Commission") and a hearing to review the denial was set for September 30, 2008.

Prior to the hearing, Verity obtained counseling from Dr. Scott Miller, a licensed psychologist whom Dr. Whitehead had approved to treat Verity. Dr. Miller concluded that there was no reason to believe Verity was at risk of ever "cross[ing] the line with a student of any age again." Dr. Miller's report was included with Verity's appeal and the Idaho Commission reversed the Chief Certification Officer's denial of Verity's Idaho license application. In July 2009, Verity was issued an Idaho teaching license. In September 2010, Verity applied and was offered a position at the Caldwell School District in Idaho to teach physical science. Amid some accusations of inappropriate behavior (hitting students with rulers and making violent comments) and after receiving a poor teaching evaluation, Verity sought alternative employment with Vallivue School District in March 2013. Verity was employed with Vallivue School District, at Sage Valley Middle School, from 2014 until February 2016, when he resigned after the publication of various news articles and television broadcasts describing his conduct in Oregon and his subsequent move to Idaho to teach.

B. The Allegedly Defamatory Articles and Broadcasts.

Appellants are USA Today; Stephen Reilly, an investigative reporter and data specialist with USA Today; KGW, a Portland, Oregon news station; KTVB, a Boise news station; and Tami Tremblay, an investigative reporter, anchorperson, and producer with KTVB (collectively referred to as the "Media Defendants").

The original KGW broadcast in question aired on February 15, 2016, as part of a larger investigation into how states track teacher disciplinary matters. During a broadcast titled, "The Dishonor Roll," reporter Kyle Iboshi stated:

Jim Verity was a middle school teacher and high school girls’ softball coach in Prineville, Oregon, but, in 2005, school administrators learned Verity had exchanged thousands of text messages, many of them late at night, with a female student. State teacher discipline records show Verity and the female student developed a sexual relationship.

...

Oregon revoked Verity's teaching license. When he tried to re-apply several years later, a psychiatrist recommended he "not be left alone with any female student over the age of 12 in order to protect [Verity] and the student."

...

But the very next year Verity was back in the classroom. This time 300 miles away across state lines near Boise, Idaho. And today, he's still teaching. Our investigation found Verity's case is not an isolated example.

During the moments Verity's relationship with the female student was discussed, the background image on the screen displayed a copy of the Oregon Commissioner's Order Denying License Reinstatement, with the text of the order entirely blurred out except for the words "a sexual relationship with a student."

KGW also posted on its website a version of a USA Today article, authored by Stephen Reilly, entitled

Broken Systems Let Teachers Flee Troubled Pasts: An investigation found fundamental defects in the teacher screening systems used to ensure the safety of children in the nation's more than 13,000 school districts.

That article stated the following:

[In 2005] school administrators learned that Verity had been exchanging text messages and phone calls with a female student. Discipline records [ ] show the state revoked Verity's license after officials found he engaged in physical contact with the student, including "kissing on the lips, neck and earlobe, grinding his pelvis into her pelvic area and touching her breasts and groin area."

When he tried to re-apply for a teaching license in 2009, a psychiatrist evaluating Verity recommended that he "not be left alone with any female student over the age of 12 in order to protect Mr. Verity and the student."

...

The Oregon Teacher Standards and Practices Commission denied Verity's application to reinstate his teaching license.

After the denial, records show Verity moved to Idaho where he was granted a teaching license. He worked in the Caldwell School District from 2010 to 2014. Superintendent Jodie Mills told USA Today the district was never made aware his license was revoked in Oregon. She said the revocation would "absolutely" have been a concern had it come to the district's attention.

Since 2014, Verity has taught sixth grade science at Sage Valley Middle School in the Vallivue School District, which is outside Boise. Vallivue superintendent Pat Charlton said Verity "disclosed to his building principal that there had been an incident involving an 18-year-old female, eight years earlier, but no charges had been filed."

Finally, on February 22, 2016, KTVB broadcast a report similar in content to KGW's broadcast; however, in the KTVB broadcast, the reporter stated that

[i]n 2005, school administrators learned Verity had exchanged thousands of text messages, many of them late at night, with an 18-year-old

...