Robert KOCH, Appellant,
v.
Judy LABORICO, City Employees Local Union No. 189, Respondents, and the American Federation of State, County and Municipal Employees, Defendant.
No. A8001-00280; A26735.
Court of Appeals of Oregon.
December 7, 1983. Reconsideration Denied February 24, 1984.*603 J. Phillip Holcomb, Portland, argued the cause and filed the brief for appellant.
Thomas O. Carter, Portland, argued the cause and filed the brief for respondents.
Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.
VAN HOOMISSEN, Judge.
This is a defamation action. Plaintiff appeals from summary judgment for defendants.[1] He contends that the trial court erred in finding (1) that he was a "public official" under the rule in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), (2) that there was no basis on which the issue of actual malice could be submitted to a jury and (3) that defendant Laborico's allegedly libelous communication was conditionally privileged.
We agree with the trial court that plaintiff was a "public official" under the New York Times rule. We conclude, however, that the court erred in entering summary judgment for defendants. The record contains evidence on which the issues of actual malice and the loss of any conditional privilege could be submitted to a trier of fact. Accordingly, we reverse and remand.
Plaintiff, a police sergeant, was the day-shift operational supervisor of dispatchers at the Portland-Multnomah County Bureau of Emergency Communications (BOEC). Defendant Laborico was a shop steward for City Employees Local Union No. 189 that represented BOEC's civilian dispatchers. She filed a grievance petition with plaintiff's supervisor, charging, in effect, that plaintiff was emotionally and mentally unstable, a threat and danger to others and professionally incompetent. She signed the petition "in behalf of all" of BOEC's civilian dispatchers. The petition stated that "all civilian employees at BOEC" were "involved" in the grievance and that "all employees at BOEC [were] witnesses" to her allegations about plaintiff.[2]
*604 BOEC's acting director refused to accept Laborico's grievance petition, stating that "the grievance procedure is not an appropriate vehicle for discussing the issues which you have raised." Because of the gravity of the charges made by Laborico, however, the acting director responded "for the record," stating, inter alia, that some of Laborico's charges were "totally unsupported by fact," that "no one has presented one scintilla of evidence to justify this accusation against Sgt. Koch," that Laborico's accusations were "unsubstantiated and irresponsible," that she had "grossly exaggerated a series of events of which [she knew] absolutely nothing" and that he suspected she was using the grievance procedure improperly "for venting anti-management attitudes or carrying [on] personal vendettas."
In granting summary judgments, the trial court found:
"* * * [Sergeant Koch] should be considered a public official. Even giving him the benefit of all reasonable inferences which might be taken from the record, there would be no basis upon which the issue of actual malice could be given to a jury. Moreover, there is no evidence to controvert the facts that Ms. Laborico's communication was made in good faith and was published in a sufficiently limited way as to entitle it to a conditional privilege."
In New York Times Co. v. Sullivan, supra, the Supreme Court held that, in an action brought by a "public official" for criticism of his official conduct, the Constitution prohibits an award of damages for a false statement unless it was made with "actual malice" that is, with knowledge that it was false or with reckless disregard of whether it was false.[3]
In Haas v. Painter, 62 Or. App. 719, 724, 662 P.2d 768 (1983), we explained:
"Perhaps no principle is more fundamental to our political system than that citizens have an unrestricted right to criticize their government and its operation, which includes the right to criticize government officials. New York Times Co. v. Sullivan, 376 US 254, 269-73, 84 S Ct 710 [720-722], 11 L Ed 2d 686 (1964). For that reason, it has been held that even the most vituperative criticism of public officials is protected under the doctrine of fair comment and criticism so long as it is in the form of an opinion. Desert Sun Publishing Co. v. Superior Court, 97 Cal App 3d 49, 158 Cal Rptr 519 (Ct App 1979); Prosser, Torts 819-20 § 118 (4th ed 1971). False statements of fact do not serve the underlying purposes of the First Amendment, however. Nevertheless, robust and uninhibited discussion of public issues is so essential to our political health that a public official may not recover damages, even for a false defamatory statement of fact relating to his official conduct unless he proves that the statement was made with knowledge *605 that it was false or that it was made with reckless disregard of whether it was false or not, because otherwise
"`* * * would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. * * *' New York Times Co. v. Sullivan, supra, 376 US at 279 [84 S.Ct. at 725]."
Plaintiff first contends that we should find defendants may not invoke the New York Times rule and that the trial court's consideration of the "public official" question was unnecessary. He relies on a footnote in Hutchinson v. Proxmire, 443 U.S. 111, 133 n. 16, 99 S.Ct. 2675, 2687 n. 16, 61 L.Ed.2d 411 (1979):
"Neither the District Court nor the Court of Appeals considered whether the New York Times standard can apply to an individual defendant rather than to a media defendant. At oral argument, counsel for Hutchinson stated that he had not conceded that the New York Times standard applied. * * * This Court has never decided the question; our conclusion that Hutchinson is not a public figure makes it unnecessary to do so in this case."
We reject plaintiff's contention. In Wheeler v. Green, 286 Or. 99, 110-11, 593 P.2d 777 (1979), the Supreme Court held:
"* * * [A]ll defendants, not only those associated with the media, continue to be protected by the New York Times rule in cases involving comment upon public officials * * *."
Plaintiff next contends that the trial court erred in concluding that he is a "public official." When, as here, the facts are not in dispute, the question whether one is a "public official" is for the court. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597 (1966); Wheeler v. Green, supra, 286 Or. at 111 n. 7, 593 P.2d 777. BOEC is the police communications nerve center for both the Portland Bureau of Police and the Multnomah County Department of Public Safety (Sheriff). All police communications, routine and emergency, are routed through the BOEC. Plaintiff, a police sergeant, was the day shift operational supervisor of dispatchers at BOEC. He had little or no direct contact with the public, and the facility was closed to the public.
In Rosenblatt v. Baer, supra, 383 U.S. at 85, 86 S.Ct. at 675-76, the Supreme Court stated:
"We remarked in New York Times that we had no occasion to determine how far down into the lower ranks of government employees the public official designation would extend for purposes of [the New York Times] rule, or otherwise to specify categories of persons who would or would not be included. 376 U.S. at 283 [84 S.Ct. at 727]. * * * The motivating force for the decision in New York Times was twofold. We expressed a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that [such debate] may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. 376 U.S. at 270 [84 S.Ct. at 720]. (Emphasis supplied.) There is, first, a strong interest in debate on public issues, and, second, a strong interest in debate about those persons who are in a position significantly to influence the resolution of those issues. Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the public official designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.
"* * * Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the *606 person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply." (Footnotes omitted.)
A footnote explained:
"It is suggested that this test might apply to a night watchman accused of stealing state secrets. But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the public's interest; that conclusion would virtually disregard society's interest in protecting reputation. The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy." 383 U.S. at 86 n. 13, 86 S.Ct. at 676 n. 13.
We conclude that plaintiff is a "public official" within the meaning of New York Times. As the day shift operational supervisor of dispatchers at the BOEC Sergeant Koch possesses "substantial responsibility for * * * [and] control over the conduct of governmental affairs." Rosenblatt v. Baer, supra, 383 U.S. at 85, 86 S.Ct. at 676. Because of the importance of his position, the public has an independent interest in his qualifications and performance beyond the general public interest in the qualifications and performance of all police officers. Rosenblatt v. Baer, supra, 383 U.S. at 86, 86 S.Ct. at 676. His position as day-shift operational supervisor of BOEC dispatchers is one "which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy." Rosenblatt v. Baer, supra, 383 U.S. at 87 n. 13, 86 S.Ct. at 676 n. 13. The trial court correctly concluded that, as a matter of law, plaintiff is a "public official" within the New York Times rule.[4]
Plaintiff next contends that the trial court erred in finding that there was no basis on which the issue of actual malice could be given to a jury. The propriety of summary judgment as a vehicle for disposition of defamation actions governed by the actual malice standard has been the subject of much debate. Some courts have held that summary judgment should be granted liberally in New York Times-type cases to avoid the "chilling effect" that the mere pendency of such cases has on First Amendment rights. Other courts have held that, because actual malice refers to the defendant's mental state with respect to the truthfulness of the allegedly defamatory material, proof of such a mental state must usually be inferred from circumstances difficult to develop on summary judgment.
The subjective nature of the evidence a plaintiff must rely on in an action governed by the actual malice standard was recognized in Herbert v. Lando, 441 U.S. 153, *607 165, 99 S.Ct. 1635, 1643, 60 L.Ed.2d 115 (1979), where the Supreme Court held that any evidence relevant to the defendant's state of mind could be used to show actual malice. In Hutchinson v. Proxmire, supra, 443 U.S. at 120 n. 9, 99 S.Ct. at 2680 n. 9, the Supreme Court expressly cast doubt on the wisdom of liberal summary judgment in actual malice cases:
"Considering the nuances of the issues raised here, we are constrained to express some doubt about the so called `rule.' The proof of `actual malice' calls a defendant's state of mind into question * * * and does not readily lend itself to summary disposition. See 10 C. Wright & A. Miller, Federal Practice and Procedure § 2730, pp. 590-592 (1973). Cf. Herbert v. Lando, 441 U.S. 153 [99 S.Ct. 1635, 60 L.Ed.2d 115] (1979)."
Although the propriety of summary judgment in New York Times-type cases was not directly before the Court in Hutchinson, other federal courts have since denied summary judgment in such cases. See, e.g., Clark v. American Broadcasting Companies, Inc., 684 F.2d 1208 (6th Cir.1982), cert. den. ___ U.S. ___, 103 S.Ct. 1433, 75 L.Ed.2d 792 (1983); Schultz v. Newsweek, Inc., 668 F.2d 911 (6th Cir.1982); Rebozo v. Washington Post Co., 637 F.2d 375 (5th Cir.1981); Yiamouyiannis v. Consumers Union, 619 F.2d 932 (2d Cir.1980); Guam Fed. of Teachers, Local 1581 v. Ysrael, 492 F.2d 438, 441-43 (9th Cir.1974); Nader v. de Toledano, 408 A.2d 31 (D.C.App. 1979); see also The Use of Summary Judgment In Defamation Cases, 14 U.S.F.L.Rev. 77, 84 (1980).
The standard of review in defamation cases governed by the actual malice standard is the same as in any other summary judgment: i.e., whether the summary judgment record demonstrates that there is a genuine issue of fact which, if proven, would support a verdict for the opposing party. To support a verdict in a New York Times-type case, a trier of fact must be able to find malice by clear and convincing evidence. Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). The question on summary judgment, therefore, is whether a trier of fact could find malice, not whether the trial court is convinced of the existence of malice. The trial court must examine the evidence, making all permissible inferences and resolving questions of credibility in favor of the party opposing summary judgment. Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978); see Nader v. de Toledano, supra, 408 A.2d at 50.
In her deposition, Laborico stated that not all of the civilian employes at BOEC had contacted her about plaintiff, that not all of them shared her views about plaintiff and that she was sure some employes did not agree with her. She acknowledged that she had sent a copy of the grievance petition to a city commissioner "as a courtesy" with knowledge that that act violated the grievance procedure in her union's contract with the city. She also stated that she had not appealed the denial of her grievance by plaintiff's supervisor to a higher authority pursuant to her union's contract.[5] Although her grievance states that it involved all civilian employes at BOEC, she admitted that she did not contact every employe to determine if each wanted a grievance filed against plaintiff. Although her grievance states that all employes at BOEC were witnesses to it, she could not recall how many employees she had contacted before filing the petition, which employes had brought plaintiff's alleged problems to her attention or the details of the incidents she reported. She also stated in the petition that several employes believed that plaintiff's acting supervisor had commented seriously, after hearing a loud bang, "My God, I thought Koch shot someone." However, one such employe, identified by Laborico, stated in his affidavit that he took the supervisor's statement as a joke and that everyone in the vicinity laughed when the comment was made. On the basis of that evidence, we conclude that a jury could reasonably find that Laborico acted with either actual knowledge of the falsity of her statements or with reckless disregard as to their falsity. See Wheeler v. Green, supra, 286 Or. at 111, 593 P.2d 777.
*608 Defendants argue that, even if a genuine issue of fact exists on the question of actual malice, Laborico's statements were conditionally privileged.[6] In Cribbs v. Montgomery Ward & Co., 202 Or. 8, 13, 272 P.2d 978 (1954), the Supreme Court quoted with approval the following statement of the rule of qualified privilege from Harrison v. Bush, 5 E & B 348, 25 LJQB 29:
"`A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminating matter, which, without this privilege, would be slanderous and actionable, and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation.'"
A qualified privilege may be lost, however, if abused. Wheeler v. Green, supra, 286 Or. at 104, 593 P.2d 777. A person abuses a qualified privilege if that person publishes defamatory matter without reasonable grounds for belief in its truth. Schafroth v. Baker, 276 Or. 39, 45, 553 P.2d 1046 (1976); Benassi v. Georgia-Pacific, 62 Or. App. 698, 703, 662 P.2d 760, modified 63 Or. App. 672, 667 P.2d 532 (1983); Restatement (Second) of Torts § 601 (1977).
Plaintiff offered sufficient evidence to defeat summary judgment on the issue of actual malice. It necessarily follows that he offered sufficient evidence to defeat summary judgment on the issue of the loss of any conditional privilege.[7]
Reversed and remanded.
NOTES
[1] Defendants Laborico and City Employees Local Union No. 189 were granted summary judgment. Local Union No. 189 is affiliated with defendant American Federation of State, County and Municipal Employees (AFSCME), which was granted summary judgment in a separate order. Plaintiff does not appeal from that separate order. The parties have not raised any issue under the Oregon Constitution.
[2] Plaintiff's complaint states in relevant part:
"On or about May 21, 1979, defendant Laborico placed, or caused to be placed on a bulletin board in the office of the Bureau of Emergency Communications, an agency of the City of Portland, the following message, in part:
`The (employees) on day shift have been severely intimidated by Sgt. Koch, to the point they are afraid he is capable of violence toward them. Sgt. Koch carries a gun at all times, as we realize most officers do. However, many (employees) have expressed the opinion that they would be extremely hesitant to go into the Sergeant's office with him alone for any potentially stressful discussion as long as he is wearing his gun. It is felt that Sgt. Koch's apparent lack of self control might lead him to actual physical abuse during a pressure situation.
`It would appear that management is also aware of a potential problem with Sgt. Koch's self control. * * * I truly believe, and I am not alone, that Sgt. Koch's continued employment at the Bureau represents a threat to the safety of all (employees). Management is forewarned that they will be held responsible for the physical safety of all (employees) while they are on duty.
`Since Sgt. Koch's arrival on the day shift, he has shown many instances of not being aware of Bureau policies, even though he had been working at the Center for six months prior to his arrival on the day shift. There are also documented instances of his lack of knowledge regarding his own Police Bureau policies.'
"VI
"The above-described message was placed on the bulletin board so it could be observed by employees of the Bureau of Emergency Communications, was sent to the management of the Bureau of Emergency Communications, and it has been observed by diverse persons.
"VII
"The message imputes that plaintiff is unfit to effectively perform the duties of his employment, that plaintiff has such a lack of self control that he might cause physical abuse, that plaintiff would resort to the use of his police firearm during a stressful situation, that the Bureau of Emergency Communication management is aware of these `problems', and that this feeling (plaintiff's lack of self control, etc.) is shared by all of defendant Laborico's fellow employees at the Bureau of Emergency Communication.
"VIII
"The message was published of and concerning plaintiff.
"IX
"The message was false, and it is published maliciously and wrongfully by the defendant"
Although it is not clear from the record, we assume that the "message" defendant Laborico allegedly placed or caused to be placed on the BOEC bulletin board was a copy of the grievance petition that she admittedly filed with plaintiff's supervisor.
[3] The "reckless disregard" part of the actual malice test is a subjective rather than an objective standard. Reckless conduct is not measured by whether a reasonably prudent person would have published or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained "serious doubts" as to the truth of the publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).
[4] See Time v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Meiners v. Moriarity, 563 F.2d 343, 351 (7th Cir.1977); Rosales v. City of Eloy, 122 Ariz. 134, 593 P.2d 688 (1979); Moriarty v. Lippe, 162 Conn. 371, 294 A.2d 326 (1972); Jackson v. Filliben, 281 A.2d 604, 605 (Del. 1971); Coursey v. Greater Niles Township Publishing Corp., 40 Ill.2d 257, 239 N.E.2d 837, 841 (1968); Suchomel v. Suburban Life Newspapers, Inc., 40 Ill.2d 32, 240 N.E.2d 1 (1968); Rawlins v. Hutchinson Publishing Company, 218 Kan. 295, 543 P.2d 988, 992 (1975); N.A.A.C.P. v. Moody, 350 So.2d 1365, 1369 (Miss. 1977); Ramacciotti v. Zinn, 550 S.W.2d 217 (Mo. App. 1977); La Rocca v. New York News, Inc., 156 N.J. Super. 59, 383 A.2d 451, 453 (1978); Orr v. Lynch, 60 App.Div.2d 949, 401 N.Y.S.2d 897, 899 (1978); aff'd. 45 N.Y.2d 903, 411 N.Y.S.2d 10, 383 N.E.2d 562 (1978); Malerba v. Newsday, Inc., 64 App.Div.2d 623, 406 N.Y.S.2d 552, 554 (1978); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 448 A.2d 6 (1982); Colombo v. Times-Argus Ass'n, Inc., 135 Vt. 454, 380 A.2d 80, 83 (1977); Starr v. Beckley Newspapers Corporation, 157 W. Va. 447, 201 S.E.2d 911 (1974); see also Annot., 19 A.L.R.3d 1361, 1375 (1968); but see Hutchinson v. Proxmire, supra, 443 U.S. at 119 n. 8, 99 S.Ct. at 2680 n. 8 (the category of "public official" cannot be thought to include all public employees); McCusker v. Valley News, 121 N.H. 258, 428 A.2d 493 (1981) cert. den. 454 U.S. 1017, 102 S.Ct. 552, 70 L.Ed.2d 415 (1981) (deputy sheriff not public official as a matter of law.)
[5] Laborico's affidavit states that plaintiff was later promoted to the rank of Lieutenant.
[6] The difference between absolute and conditional or qualified privilege is discussed in Adamson v. Bonesteele, 295 Or. 815, 671 P.2d 693 (1983).
[7] A qualified privilege may not even exist in a defamation case that is subject to the actual malice standard. See Restatement (Second) of Torts § 599-600 (1977); see also Wright v. Haas, 586 P.2d 1093, 1097 (Okl. 1978); Ryder Truck Rentals v. Latham, 593 S.W.2d 334, 339-40 (Tex.Civ.App. 1979); Mark v. Seattle Times, 96 Wash.2d 473, 635 P.2d 1081, 1091 n. 5 (1981); Moore v. Smith, 89 Wash.2d 932, 578 P.2d 26, 30 n. 1 (1978); Sewell v. Brookbank, 119 Ariz. 422, 581 P.2d 267, 270-71 (App. 1978).