dissenting: Kelly Sellars, in my opinion, is a limited public figure as to the two articles written; and as a matter of law the record does not prove that the statements which are alleged to be defamatory were published with actual malice.
I find it necessary to restate and expand on the facts as set forth in the majority opinion.
The background facts appear to be public knowledge in the area where the defendant’s newspaper is circulated, and some of them were subjects of earlier articles in defendant’s paper.
James P. Sellars was at all times material the incumbent sheriff of Crawford County, Kansas. At one time the plaintiff Kelly Sellars was a prisoner in the Crawford County jail. At that time her name was Kelly Heistand. She was charged with attempted felony theft and was subsequently placed on two years’ probation. Ten days after her release from the Crawford County jail she was hired by Sheriff Sellars and worked under his supervision and control although she was paid with CETA funds. It is correct that her entitlement to vacation and sick pay, and any *581other benefits, was determined by CETA, which made the actual payments based on vouchers approved by the Crawford County Board of County Commissioners. While Kelly Heistand was employed by Sheriff Sellars, she obtained a divorce and was restored to her former name of Bratton. The divorce was final in December. She served 14 days in jail from January 20 to February 3,1980, in Springfield, Missouri, after which she was granted probation. She married Sheriff Sellars in February 1980.
The newspaper reporter discovered the “county legáis” for Crawford County payroll records for December 27, 1979, January 31 and February 20, 1980, which, in my opinion, would have led a reasonable person to believe Kelly Heistand Sellars was on the county payroll on those dates. The county fiscal clerk, Joan Westhoff, made an affidavit that Crawford County fiscal records showed Kelly Sellars’ employment with Sheriff Sellars was not terminated until January 31, 1980. The reporter did contact the local CETA office in an effort to obtain payroll information but was advised the information could not be disclosed. Considerable effort was expended by the reporter before he was finally able to talk with Milford Steele, a CETA official, in the Kansas headquarters in Topeka, and the articles accurately reflect the information he obtained. Milford Steele’s comments obviously were based on what the reporter told him. The first article was not run until October 25, 1980, before which at least one attempt was made to contact Kelly Sellars. A number of unsuccessful attempts were made to contact Sheriff Sellars. He was finally contacted at the Sellars’ home about 6 o’clock the night before the story ran.
If one views separately the various components of why Kelly Sellars is a limited public figure, one could reach the conclusion that the majority does. But, in my opinion, that cannot be the correct method.
Kelly Sellars was a person convicted of a crime or crimes who at the time was a public employee hired and supervised by her fiancee and paid with special public funds. She was the wife of a public figure when the story was published. She and Sheriff Sellars had a unique love story insofar as how they first met and eventually married. He hired an ex-inmate of his own jail within days after her release from prison who was to be paid with public funds. She had committed a crime in Missouri either before that *582time or while working for the sheriff. She was married to him during the time he was Crawford County Sheriff running for reelection in a hotly contested campaign. The story was germane to Sheriff Sellars’ fitness for the position. He had hired Kelly Sellars and was her supervisor. Obviously, if she was paid with his knowledge for the time she was incarcerated, it would reflect on his fitness for reelection. Kelly Sellars, of course, would have an interest in his reelection. Considering the totality of the circumstances, I conclude that by virtue of the facts of this case and her marriage to a public figure Kelly Sellars was a limited public figure, and to recover she must prove actual malice. To me, the spouse of a public official must necessarily become a limited public figure to the extent the subject matters of the spouse’s activities may be commented upon if those activities reflect on the fitness of a public official to perform the duties of the office held or sought.
It is easy to misconstrue isolated sentences in a story. The entire stories, as they appeared in The Morning Sun, are herein reprinted. The first article, titled “Sheriff s CETA funds probe possible,” appeared October 25, 1980:
“Kansas CETA officials are cheeking payroll records to determine if Sheriff Jim Sellars misused sheriff’s department CETA funds when his wife-to-be was apparently paid for a full month of work last January — although she spent nearly two weeks of that pay period in a Missouri jail.
“Sheriff Sellars, however, said Friday that Kelly Heistand was taken off the CETA payroll in mid-January, about four days before entering jail. But county records indicate she was paid a full month’s wages in January and $298.88 during February.
“ T’m going to go over this information and discuss it with my coordinator,’ Milford Steele Jr., a planning specialist for the Comprehensive Employment and Training Administration in Topeka, said Thursday.
“ ‘As far as the misuse of funds . . . we could check into the benefits she was supposed to receive as a participant in that agency.’
“Steele said he would discuss the matter with Lois Martin, coordinator of public services, and a decision whether to investigate the matter would likely be made by Tuesday.
“ ‘I’d have to check the records,’ Sellars said, ‘but she was very, very definitely taken off the payroll. CETA may have paid her some vacation time or something.’
“Kelly Heistand was hired as a clerk-typist for the sheriff s department Sept. 26, 1979, under Title XI CETA funds.
“On January 16, 1980, she was sentenced to two weeks of‘shock probation’ at the Greene County Jail in Springfield, Mo., after pleading guilty in October 1979 to a pending felony theft charge. She was confined to the jail from Jan. 20 to Feb. 3.
*583“County records show, however, that she was paid $597.76 in January.
“Steele said he would check payroll records to determine if Heistand had any sick leave or vacation time due. At the time of her Missouri ‘shock probation’ incarceration, Heistand had less than four months logged at the Crawford County Sheriff s Department.
“Sellars probably could not be accused of nepotism in hiring Heistand, Steele said. ‘At the time the woman was hired,’ Steele said, ‘she was not his wife.’
“Sellars confirmed in December 1979, however, that she was living at his rural Girard home.
“Kelly Heistand filed for divorce from her husband, Kenneth Heistand, Sept. 19, 1979, at Crawford County District Court. The divorce was granted Dec. 10, and Sellars married her in Ottawa County, Okla., after applying for a marriage application Feb. 15, 1980.
“Kenneth Heistand, a Missouri prisoner, sent a letter to the Kansas Attorney General’s Office alleging his wife received improper and unusual treatment while held at the Crawford County Jail. The letter was dated Sept. 14, 1979.
“Kelly Heistand was arrested at the Pittsburg J.C. Penney’s Aug. 21, 1979, and charged at district court with felony attempted theft. She was held at the Crawford County Jail from Aug. 23 until her Sept. 11 conviction. District Judge Don Musser placed her on two years of probation.
“The Pittsburg conviction was unrelated to the pending Missouri charge.
“The Attorney General’s Office conducted an ‘inquiry’ into the improper treatment allegation, but a formal investigation never materialized.”
The second article, titled “Sheriff denies improper use of CETA funds,” appeared October 26, 1980:
“Sheriff Jim Sellars Saturday challenged a story in The Morning Sun which reported that Kansas CETA officials are checking payroll records to determine if there has been a possible misuse of sheriff s department CETA funds.
“Sellars said that the story was incorrect and a pre-election ‘smear.’ He said there was a month lag in CETA funds paid to employees and he stood by his story that his wife, the former Kelly Bratton, had never received funds she was not entitled to.
“Although Sellars said his wife-to-be was dropped from the sheriff s department CETA payroll in mid-January, county fiscal records show her employment was not terminated until Jan. 31, 11 days after she entered a Missouri jail.
“Kelly Bratton, formerly Kelly Heistand, was issued a check March 1 for $298.88 for a two-week pay period ending Jan. 31, according to payroll records of the county fiscal office. According to a spokesman for the Greene County Circuit Court in Springfield, however, she was incarcerated at the county jail for 12 days of that pay period, from Jan. 20 to Feb. 3.
“A story in Saturday’s edition of The Morning Sun incorrectly stated Bratton received a half-month’s wages in February. She received the half-month’s wages in February. She received the half-month’s wages March 1, but for the Jan. 16-31 time period. Although the CETA pay period runs from the 15th of the month to the 15th of the next month, county employees are paid on the first of the month following the pay period.
“County fiscal records show Bratton was paid $298.88, a half-month’s wages for *584Jan. 16 through Jan. 31, according to Joan Westhoff, county fiscal officer. The majority of Bratton’s time during that pay period, according to the Greene County Circuit Court, was spent in jail as part of a ‘shock probation.’
“County fiscal records simply record her wages during that time as regular earnings, and do not indicate whether or not vacation time or sick leave was due.
“Heistand, whose maiden name of Bratton was restored when her divorce from Kenneth Heistand was granted Dec. 10, was hired as a clerk-typist for the sheriff s department in late September 1979. She and Sellars were married in February 1980.
“The county commissioners sign sheriffs department CETA payroll claim vouchers, according to County Clerk Dean McFarland. The vouchers are then sent to Independence, Kan., where payroll checks are issued from a Comprehensive Employment and Training Administration account set up for the specific contract, McFarland said.”
A mistake or false statement in a newspaper article does not necessarily show malice. There is a significant difference between proof of actual malice and proof of a false or inaccurate statement. Proof of malice is no longer a question of fact for a jury. Trial judges in the first instance, and ultimately appellate judges, must exercise independent judgment and determine whether the record establishes clearly and convincingly that an article was published with actual malice. Bose Corp. v. Consumers Union of U.S., Inc.,_U.S._, 80 L.Ed.2d 502, 104 S.Ct. 1949 (1984). The record in this case does not meet that standard and I would affirm the trial court.