Janklow v. Viking Press

HENDERSON, Justice

(dissenting).

Former Attorney General and Governor of this state is asking for a jury trial. Nothing more, nothing less. For some time, now exceeding six years, he has attempted to bring his case before a jury to have a determination of an alleged wrong perpetrated upon his character by printed defamation. His effort has been studied, labored and persistent to get his case before a jury. It is an odyssey in search of justice through the jury system. A circuit court has ruled that he should get no jury trial and this Court now rules likewise. In 1985, this Court reversed a trial court dismissal and remanded this case to the trial court for further proceedings. I would reverse the trial court again and remand this case for trial to a jury so that our former Governor would be given his constitutional right to a trial by jury and because there are genuine issues of material fact.

We, on this Court, are not bound by factual determinations of the trial judge. Our posture is to conduct an independent review of the record. This I have done, and I am shocked that former Governor Janklow is being denied a jury trial. It seems because he has been a public figure that the Appellees took the position that they could print anything about him to destroy him as a public figure without checking into the true facts. Derogatory comment about our former Governor abounds in this book in question and is then spiced with allegations of rape, drunkenness, nudity and violence. In my opinion, these hostile and defamatory remarks transcend the protections afforded to “opinion” and at least establish a question of fact for a jury to determine if Governor Janklow has been defamed. Cianci v. New York Times Publishing Center, 639 F.2d 54 (2nd Cir.1980), at 69.

Let us observe but a few of the allegations against Governor Janklow, as printed: (1) A case against Janklow was “speedily *425smoothed over” by the FBI; (2) Janklow was a “self-proclaimed Indian fighter”; (3) Janklow received “the full support and financial endorsement of the energy corporations” and became the instrument, in state government, who abolished the Department of Environmental Protection; (4) Radiation contamination in South Dakota existed and the Janklow government was “not eager to hunt down the precise sources.” Instead of being denominated as a “prosecutor” of a certain convict, he was labeled as a “persecutor.” That a clear inference was made that Janklow raped a 15 year old girl (although there was no physical evidence whatsoever to establish a rape assault) and although a White House and United States Senate investigation thoroughly examined the rape charges and concluded that those charges were “unfounded” 1; and (5) That Governor Janklow supposedly shot dogs, while riding a motorcycle; and drove his vehicle on the Reservation in a state of nudity.

Needless to say, this book was sensational. Appellees admit that the book was biased against Janklow. And further admit that publication of the book was to make money, if you will, for a profit. In the name of fundamental fairness, our former Governor is entitled to his constitutional right of a jury trial. How far can any journalist or writer go in printing horrible things about a public figure and then hide behind the First Amendment and/or “sources?” A convict was quoted, in the book, as expressing “Janklow went from raping young girls to raping Mother Earth.” This is not an expression of “opinion”; this statement is factual in nature. The trial court held that such a statement was “opinion.” Matthiessen wrote, with reference to the alleged rape, that the convict expressed, in fact, that Janklow “did it, allright.” In other words, the Appellees have taken the words of convicts and printed them but refused to check out the White House and United States Senate investigation. Is that fair? Of course it is not! Is it defamation? Answer: A jury should decide.

I find it laughable, if this were not such a serious case, to characterize this book establishing a “historical viewpoint of traditional Indians.” Traditional Indians are decent people who love their culture and their families. They are not oft-times convicted felons with long histories of crime and violence. Matthiessen’s main source of quotes and “historical viewpoints” came from these convicts. Mind you, Janklow was our former Attorney General who prosecuted these very convicts. Did Appel-lees act with a reckless disregard for the truth or did they have a high degree of knowledge of the statements’ probable falsity? It is a question of fact for a jury.

Under Ruane v. Murray, 380 N.W.2d 362, 364 (S.D.1986), as the nonmoving party, Janklow presented facts, quite extensively, that a genuine, material issue existed for a trial. When we review a summary judgment, the nonmoving party, namely Janklow, is entitled to have the evidence viewed in a light most favorable to his position. The moving party, Viking Press, et. al., bear the burden of showing the essence of genuine issues of material facts. Bego v. Gordon, 407 N.W.2d 801 (S.D.1987). So many times, this Court has expressed that summary judgment is “an extreme remedy to be awarded only when the truth is clear.” Why, then, do we not inculcate precedential vitality?

The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy, but the Legislature may provide for a jury of less than twelve in any court not a court of record and for the decision of civil cases by three-fourths of the jury in any court.

S.D. Const. Art. VI. § vi.

By judicial fiat we should not erode constitutional rights. As a reader of law, on these summary judgment cases, I am struck with this thought: What is a “mate*426rial fact”? In Lyman v. Jennings, 637 P.2d 259, 261 (Wyo.1981) it expresses: “A [material fact] ... is one which would have effect of establishing or refuting essential element of cause of action or offense asserted by parties.” This Court has looked at Federal Rule 56(c) which expresses that “the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). SDCL 15-6-56(c) is a verbatim resuscitation of Federal Rule 56(c). In my opinion, this Court violates our decision in Wang v. Wang, 447 N.W.2d 519, 521 (S.D.1989) wherein we expressed: “Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.”

A public figure may recover damages for a defamatory falsehood only through clear and convincing proof that the false statement was made with actual malice — that is, with knowledge that it was false or with a reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964). In New York Times, the United States Supreme Court independently examined the evidence in the record, which included a full trial, verdict, and judgment entered in favor of a defamation plaintiff. The Court determined that the plaintiff could not prove actual malice with “convincing clarity.” Here, Janklow has never been given a trial before a jury. He has never been given a chance to go up to the plate and hit the ball, i.e., prove up a cause of action before a jury. The trial court fails to honor our precedent.

More recently, the Supreme Court had occasion to address this issue in Liberty Lobby. In that case, the Supreme Court held that “in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.” Thus, “the appropriate summary judgment question will be whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not.” Id. Janklow should be given an opportunity to meet that evidentiary burden before a jury for, indeed, he has established a material issue of fact on whether Appellees printed with a reckless disregard for the truth or printed with a high degree of knowledge of the statements’ probably falsity.

Initially, even taking into account the clear and convincing burden of proof, I would hold that a genuine issue of material fact exists here. The Appellees have failed to meet their initial burden by demonstrating that no genuine issue of material fact exists with respect to actual malice. The voluminous record contains many factual scenarios which indicate, to a considerable extent, that the Appellees published certain statements and accusations creating a question of fact for a jury regarding their truth. Former Governor Janklow answered, under oath, 58 Appellees’ interrogatories, wherein he refuted the numerous allegations against him contained in the book; he set forth witnesses who would testify as to the falsity of the allegations. More particularly, he referred to a deposition of Dr. John Crockett which establishes that the allegation of rape against Jancita Eagle Deer was extremely dubious in light of the fact that there was no physical evidence demonstrating a sexual assault upon her on the day in question by Janklow or any other person.

This writer will now address the actual malice issue. Evidence of either deliberate falsification or reckless publication is essential to recovery in public official defamation cases. Reckless disregard may be shown where the defendants have made a false publication with a high degree of awareness of probable falsity, or must have entertained serious doubts as to the truth of his publication. St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).

Reckless conduct is not measured by whether a reasonable prudent person would have published or would have investigated before publishing; rather, there must be sufficient evidence to conclude that the defendant in fact en*427tertained serious doubts as to the truth of its publication.2 Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

Id. (Emphasis supplied mine).

The standard for determining “actual malice” is subjective, focusing on the defendant’s belief in or attitude toward the truth of a statement, not the defendant’s personal hostility toward the plaintiff. St. Amant, supra. However, actual malice can be inferred from circumstantial evidence, including defendant’s hostility3 or spite, the reporter’s knowledge that his sources are hostile to the plaintiff or ignorant of the details concerning the situation and failing to properly investigate. Herron v. King Broadcasting Co., 109 Wash.2d 514, 746 P.2d 295 (1987) citing Tavoulareas v. Piro, 759 F.2d 90, 134-35 (D.C.C.Cir.1985).

Essentially, the Appellees argue that Matthiessen made an extensive investigation and used reliable sources to confirm the accuracy of his reports.4 Therefore, a jury could not find, by clear and convincing evidence, that Appellees acted with reckless disregard for the truth. I disagree. Here, viewing the evidence in the record in a light most favorable to Janklow, there is considerable circumstantial evidence of actual malice. We must go back to our old rule in Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19 (1968) that the evidence must be viewed most favorably to the nonmoving party and reasonable doubts must be resolved against the moving party.

Matthiessen knew that his main sources of information (Banks and Means) were biased against Janklow. He was aware that both men were convicted felons, one of whom (Banks) had been convicted after a jury trial at which Janklow was a prosecutor. Matthiessen apparently chose to ignore this fact, both in the investigation and in the publication of his book. He made only a slight effort to seek verification concerning the truth of their claims against Janklow. Obviously, Appellees should have entertained serious doubts about the truth of the publication in regards to the information received by Matthiessen’s main sources. The Appellees requested that a number of attorneys review the book for factual accuracy. They were warned by two of the attorneys that the book libeled Janklow and that they were subjecting themselves to possible claims by Janklow. I am not saying this. Warnings by these attorneys, as demonstrated by the evidence before the trial court, were made to Appel-lees. In effect, Appellees said “fine, we have your warning but we are going to publish anyway.” The Appellees did not attempt to obtain the actual facts of the incident by reading documents which were of public record (the United States Senate transcript) or by contacting Janklow. Moreover, Appellees were money oriented and obviously aware of the commercial value of their story of “a seamy revelation of rape by a prominent public figure.” In addition, the general tenor of almost every reference to Janklow is hostile and portrays Janklow in the worst possible light.

Moreover, South Dakota has in its Bill of Rights:

Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the fact and the law *428under the direction of the court.5

S.D. Const. Art. IV § 5. Uniquely, in South Dakota, there is a constitutional right to a trial by jury to determine the facts and the law under the direction of the court in a libel case. No judicial declaration by this Court should take away that constitutional right.

Recently, the United States Supreme Court determined that the First Amendment does not prohibit a state’s application of its own libel laws relating to matters of public concern. In Milkovich v. Lorain Journal Co., — U.S.-, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), petitioner Milkovich was a high school wrestling coach at Maple Heights High School in Maple Heights, Ohio. In 1974, his team was involved in an altercation at a home wrestling match with a team from a rival high school. In response to the incident, the Ohio High School Athletic Association (OHSAA) held a hearing at which Milkovich testified. Following the hearing, his team was put on probation. Thereafter, several parents and wrestlers sued OHSAA, seeking a restraining order against OHSAA’s ruling on the grounds that they had been denied due process in the OHSAA proceeding. Milko-vich testified in that proceeding also. The day after the county court overturned OH-SAA’s ruling, Lorain Journal Company’s newspaper published a column authored by Respondent and Mr. T. Diadiun, which implied that Milkovich lied under oath in the judicial proceeding. Milkovich subsequently commenced a defamation action against the respondents. Ultimately, the trial court granted summary judgment for respondents. The Ohio Court of Appeals affirmed. The United States Supreme Court reversed and remanded. The Supreme Court’s judgment was based in part on the grounds that the article constituted an “opinion” and that the First Amendment does not require a separate “opinion” privilege limiting the. application of state defamation laws. The Court further held that the First Amendment does not prohibit application of Ohio’s libel laws to the alleged defamation contained in the article.

The Supreme Court stated in Milkovich: “The dispositive question in the present case then becomes whether or not a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think, this question must be answered in the affirmative.” Id. In the present case, the question becomes whether or not a reasonable factfinder could conclude that the many statements in this book imply assertions that Janklow actually did all of the outlandish acts referred to, including raping a young Indian girl on a South Dakota Indian Reservation.

“The numerous decisions discussed above [in Milkovich] establishing First Amendment protection for defendants in defamation actions surely demonstrate the Court’s recognition of the Amendment’s vital guarantee of free and uninhibited discussion of public issues. But there is also another side to the equation: we have regularly acknowledged the ‘important social values which underlie the law of defamation,’ and recognize that ‘[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation.’ Rosenblatt v. Baer, 383 U.S. 75, 86 [86 S.Ct. 669, 676, 15 L.Ed.2d 597] (1966). Justice Stewart in that case put it with his customary clarity:

*429‘The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.
The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.’

Id,, at 92-93 [86 S.Ct. at 679-80] (Stewart, J., concurring).”

How can the South Dakota Constitution be either unconstitutional or subservient to a decision by judges or justices? The words in our Constitution are very express and mandatory. We do not need the United States Supreme Court to interpret our own state constitution. That is within our province. We have the right to grant greater rights under our state constitution than those bequeathed unto us by the Federal Constitution. State v. Flittie, 425 N.W.2d 1 (S.D.1988); State v. Opperman, 247 N.W.2d 673, 674-675 (S.D.1976); citing Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); State v. Neville, 346 N.W.2d 425, 427-428 (S.D.1984), rev’d on other grounds, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Janklow has not cited the above South Dakota constitutional provision in his brief either. This Court has interpreted this constitutional provision in Brodsky v. Journal Publishing Co., 73 S.D. 343, 42 N.W.2d 855 (1950). Clearly, that case stands for this proposition: “If a publication alleged to be libelous is susceptible of different interpretations, one of which is defamatory and the other not, a question for jury is presented.” I have shepardized this case and it has been cited with approval in Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D.1987). Brodsky has never been overruled in this state and it is still good law. Brodsky and this constitutional provision should be our polestar in analyzing the academic merits of this appeal.

In conclusion, I would find that Janklow has at least presented a genuine issue of material fact in regards to whether Appel-lees acted with actual malice in publishing the book in question. I would reverse and remand for a trial. I am reminded, as I lay down my pen, of the words of Napoleon Bonapart who said: “I fear one printing press more than 10,000 bayonets.”

. This is a public document and Matthiessen made no effort to obtain it. Does this not create a question of fact as to whether there was a reckless disregard of falsity or truth to the rape charge? No man or woman, trained in the law, could deny that a duty was owed to determine what this public document expressed.

.It is patent that a question of fact exists whether Appellants had serious doubts concerning the truth of the publication. Exhibits on file reflect that lawyers advised Appellees that the book contained libelous material. Appellees failed to contact one of the attorneys, failed to contact two "BIA cops” and did not make any effort to substantiate the statements of the two convicts; nor did Matthiessen contact BIA or FBI agents.

. Depositions on file clearly reflect that the reporter absolutely knew that his sources were hostile to Janklow.

. Sworn testimony reflects that Matthiessen was in South Dakota for approximately two days. Was that the truth? A jury should decide how "extensive” his investigation was.

. Appellees, in their Table of Authorities, cited S.D. Const. Art. VI § 4 expressing the following:

The right of petition, and of the people peaceably to assemble to consult for the common good and make known their opinions, shall never be abridged.

However, they believe and argue that their opinions and statements have no limit. The limit is set forth above which is that, indeed: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Janklow is guaranteed, constitutionally, a right to a jury trial for alleged libel and this Court takes it away from him.

Woodrow Wilson, in an address on July 4, 1914 stated: “Liberty does not consist in mere declarations of the rights of man. It consists of the translations of those declarations into definite actions." You can mouth the constitution until the cows home, but if you do not breathe life into it, and turn it into a definite action, it becomes a lifeless embodiment of words — weak by neglect.