dissenting.
I respectfully dissent.
I.
In my view, the facts here do meet the standard of clear and convincing evidence required to permit a conclusion that defendants entertained serious doubts as to the truth of their publications. Consequently, a jury should have been allowed to determine that issue, and the trial court’s entry of summary judgment was erroneous. See St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968); Burns v. McGraw-Hill Broadcasting Co., Inc., 659 P.2d 1351 (Colo.1983).
Proof of actual malice calls a defendant’s state of mind into question and does not readily lend itself to summary disposition. Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). A trial court, in determining whether an issue as to actual malice is present, must ascertain whether:
“ ‘The plaintiff has offered evidence of a sufficient quantum to establish a prima facie case, and the offered evidence can be equated with the standard or test of ‘convincing clarity’ prescribed by United States Supreme Court decisions_’” DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980) (emphasis omitted).
To establish reckless disregard, a plaintiff must produce sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. St. Amant v. Thompson, supra.
The record shows that, prior to the publication of the March 11, 1980, letter, Craig was aware that the special prosecutor had issued his report and he was aware of the contents of that report. Craig further ad*350mitted that he knew that the figures he used in the letter were wrong. Despite this knowledge, Craig maintained that PBR, Reddick, and the county commissioners had “swindled” the county, and that the Herald had participated in the “cover-up.”
The letter does not support the majority’s assertion that “Craig’s allegations of budgetary impropriety were at all times directed toward the La Plata County Commissioners not toward Reddick or PBR.” The clear import of the letter’s language is that Reddick and PBR “pulled a swindle” on La Plata County. Indeed, Craig in his deposition stated that the common meaning of “swindle” is to “take money under false pretenses.”
Moreover, the Herald admitted that the December 1979 letter contained statements based upon what it knew to be inaccurate underlying figures. This admission would sustain a finding of actual malice as to this letter.
As to the March 11, 1980, letter, which the editor of the Herald stated “might be libelous,” the Herald argues that its investigation and subsequent editorial, which refuted Craig’s statements, protect it from liability. However, a re-publisher is not relieved from liability by stating that he does not believe the allegations contained in the re-publication. Restatement Second of Torts § 578 comment e (1976).
Consequently, the evidence here constitutes a prima facie case as to malice sufficient to withstand summary judgment.
II.
Furthermore, I cannot agree with the majority’s conclusion that the letters expressed constitutionally protected opinion.
It is libelous per se to charge a person falsely with a crime, and the charge need not be made in the language of the statute. Walker v. Associated Press, 160 Colo. 361, 417 P.2d 486 (1966). In essence, the December 18, 1979, letter imputes criminal activity to PBR and Reddick, since it accuses them of manipulating the La Plata County Commissioners into exceeding the county’s budget. Thus, I fail to see how that letter can be enclosed under the mantle of constitutionally protected opinion.
In the March 11, 1980, letter, Craig claims that a certified public accountant verified the figures in support of his findings that payments were made to PBR in excess of budgeted funds. However, Craig did not disclose that the certified public accountant was his friend, was retired, and may not have been currently certified. Nor did the letter disclose that the CPA was a sympathizer of the Landowner’s Association which had opposed PBR’s work from the outset, and whose activities Craig had spearheaded. Most importantly, Craig failed to disclose that the accountant’s conclusions were based upon the limited number of documents Craig supplied to him and which Craig admitted were incomplete.
The same March 11, 1980, letter also states that an unidentified ex-member of the local planning commission and former “promoter” of Reddick described the payments to Reddick and PBR as an “incredible swindle.” This statement implies knowledge by two insiders in the controversy — Craig and the ex-planning commissioner — that Reddick and PBR had swindled La Plata county. However, Craig’s letter does not disclose any underlying facts which would support the conclusions of Craig, the CPA, or the former planning commissioner.
Craig neither disclosed all the facts in a neutral fashion, nor toned down his rhetoric. Rather, he used such words as “swindle,” thus leading the average reader to conclude the worst, without knowing the underlying bases for Craig’s claims. In my view, Craig’s opinions are based upon undisclosed false and defamatory facts, Bums v. McGraw-Hill Broadcasting Co., Inc., supra, and thus, they are not protected under the United States or Colorado Constitutions.