(concurring) — While I agree with the result and rationale of the majority opinion, I would use this case to put to rest what I conceive to be a fundamental error in Tait v. KING Broadcasting Co., 1 Wn. App. 250, 255, 460 P.2d 307 (1969), wherein the court held that motions for summary judgment in libel cases, involving First Amendment guarantees, require the trial court to determine “whether there is substantial evidence presented which, if believed, could persuade a jury with convincing clarity the defendant was guilty of maliciously making a libelous statement.”
Inherent in the quoted language, as I read it, is an invitation for the trial court to pass upon credibility, to weigh the “evidence” to determine if it is substantial, to determine if it might persuade a jury, with convincing clarity, of the defendant’s “guilt” as to a maliciously false statement.
Such a weighing, such a scrutiny of the “evidence” are all elements foreign to the concept of the summary judgment proceedings.
It is not the function of the trial court at the summary judgment hearing to resolve any genuine factual issue, including credibility; and for purposes of ruling on the motion all factual inferences are to be taken against the moving party and in favor of the opposing party . . . Discretion plays no real role in the grant of summary judgment . . .
(Footnotes omitted.) 6 J. Moore, Federal Practice ¶ 56.15 [8], at 2440 (2d ed. 1972).
The defendant in a libel case who invokes First Amendment guarantees of free speech and free press as related to a “public figure” has all of the protections correctly set forth in Tait v. KING Broadcasting Co., supra. The plaintiff starts with a very heavy burden. There is no need to *21create a special criterion for the summary judgment process in this type of case.
Under the United States Supreme Court decisions, it is true that the evidence must be of a character described as convincing clarity. It is appropriate that the trial court, at the summary judgment stage, determine whether the evidence is of that character. The trial judge, however, should not determine whether the evidence is substantial, believable or to otherwise weigh the evidence.
This is no different from the trial court’s determining whether the evidence, at summary judgment, is clear, cogent and convincing, as required in some cases or that the evidence does or does not show gross negligence.
In this particular case, the result under my approach would be the same as that reached by the majority. The plaintiff here simply did not come forward with any proof suggesting actual malice within the requirements of New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964); Beckley Newspapers Corp. v Hanks, 389 U.S. 81, 19 L. Ed. 2d 248, 88 S. Ct. 197 (1967); and Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 26 L. Ed. 2d 6, 90 S. Ct. 1537 (1970). Indeed, this case demonstrates that application of the usual rules of summary judgment proceedings, subject to the standard of proof of convincing clarity, would put the plaintiff to a difficult burden, not because of any broad modification of these well understood summary judgment principles, but rather due to the extremely stringent proof which a “public figure” plaintiff must meet at all stages of a lawsuit, including his defense of a motion for summary judgment.
Hale, C.J., Finley, J., and Lawless, J. Pro Tern., concur with Brachtenbach, J.