Cox v. Lee Enterprises, Inc.

No. 8 5 - 6 1 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

DALE COX,
Petitioner,

LEE ENTERPRISES, INC.,
and the BILLINGS GAZETTE,
a division of LEE ENTERPRISES,
INC. ,
Respondent.

ORIGINAL PROCEEDING:

COUNSEL OF RECORD:
For Petitioner:
Huntley & Eakin; Gene Huntley argued, Baker, Montana
For Respondent:
P.!oulton, Bellingham, Longo & Mather; Sidney R. Thomas,
Billings, Montana (Billings Gazette)
P. Cameron Devore argued for Billings Gazette, Seattle,
Washington
For Amicus Curiae:
Goetz, Madden & Dunn; James Goetz argued for Allied
Daily Newspapers and the Reporters Committee for
Freedom of the Press, Bozeman, Montana
Peter M. Meloy for Montana Press Association, Great
Falls Tribune, Associated Press, Society for Profes-
sional Journalists & Montana Press Women, Helena,
Montana

Submitted: June 2 0 , 1 9 8 6
Decided: August 1 3 , 1 9 8 6

Filed:
BUG 1 3 1986

k*
,L Clerk
0
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.

This Court has accepted jurisdiction to determine a
question of state law certified by the United States District
Court for the District of Montana.
Petitioner Dale Cox is an attorney practicing in
Glendive, Montana. Respondents are Lee Enterprises, Inc. and
the Billings Gazette, a division of Lee Enterprises, Inc.
The following statement of facts is taken from the federal
court's order certifying the question to this Court.
In 1971, Laura Thomas was involved in an auto accident
and Cox was retained to represent her. Cox settled the case
with the insurance company, and because Laura was a minor
with no living parents, a legal guardian was appointed and
the settlement money was placed in the guardianship. Due to
apparent physical and mental impairments existing since
childhood, Laura's guardianship continued beyond her age of
majority. In 1978, five years after legally becoming an
adult, Laura had the guardianship terminated and the
remaining funds distributed to her.
On May 27, 1980, Laura filed a complaint against Cox in
the United States District Court for the Western District of
Washington alleging injuries resulting from unnecessary
extension of the guardianship. On June 8, 1980, prior to the
time Cox had been served with the complaint, the Billings
Gazette published an article paraphrasing and quoting
allegations against Cox listed in the complaint. The case
was subsequently transferred to the United States District
Court for the District of Montana; by opinion dated December
23, 1982, the federal court entered summary judgment in favor
of Cox.
 Cox filed a defamation action against the Billings
Gazette and Lee Enterprises, Inc., for publication of the
June 8, 1980, article. In their answer, respondents raised
the affirmative defense that the news article was privileged
under B 27-1-804 (4), MCA, because it was a fair and accurate
report without malice of a judicial proceeding. Following
briefing and oral argument the federal court issued an order
dated January 16, 1986, certifying the following question of
law to be answered by this Court:
Under the law of the State of Montana, is the
defense of privilege available to a newspaper
publisher in a defamation case when the alleged
defamation consists of facts taken from preliminary
judicial pleadings which have been filed in court
but which have not been judicially acted upon?
The applicable statute is § 27-1-804(4), MCA, which
makes a fair and true report without malice of a judicial
proceeding a privileged publication. Respondents contend
"judicial proceeding" should be construed to encompass the
filing of a complaint. We agree.
"Judicial proceeding" is not defined within the Montana
Code. Therefore, we look to the approved usage of the term
or the appropriate meaning in law. B 1-2-107, MCA.
Included in the common definition of "proceeding" is
"legal action", Webster's New Collegiate Dictionary, 910
(1979), and "the instituting or conducting of litigation",
American Heritage Dictionary, 987, Second College Edition
(1985). Black's Law Dictionary, 986, (4th ed. 1968), lists
the following definitions of "judicial proceeding:" "Any
proceeding wherein judicial action is invoked and taken;"
"Any proceeding to obtain such remedy as the law allows;"
"Any step taken in a court of justice in the prosecution or
defense of an action."
 We look to plain meaning of words because our paramount
task in statutory construction is to determine what
legislators intended when they phrased the statute. Most are
lay people and we look to common usage in honoring
legislative purpose.
Application of the above definitions leads us to a
finding that the filing of a complaint was intended to be
included within the phrase "judicial proceeding".
The modern trend is to apply a qualified privilege to
reports of judicial pleadings which have not yet been the
subject of judicial action. In fact most jurisdictions hold
that a complaint is part of the judicial proceeding. The
rationale is explained by an Illinois court in Newel1 v.
Field Enterprises, Inc., (Ill. App. 1980) 91 Ill. App. 3d
735, 415 N.E.2d 434. That court said:
Certainly, the administration of justice is of
utmost importance to the citizenry. While we are
aware that pleadings are one-sided and may contain,
by design, highly deflamatory statements, we
believe the information found in such pleadings is
of sufficient value as to warrant the encouragement
of its publication.

The right to inspect public documents and be fully
informed of their contents finds strong expression in our
state constitution. Article 11, provides :
Right to know. No person shall be deprived of the
right to examine documents or observe the
deliberations of all public bodies or agencies of
state government and its subdivisions, except in
cases in which the demand of individual privacy
clearly exceeds the merits of public disclosure.
A broad interpretation of the privilege is statutorily
supported by the right to inspect public documents,
§ 2-6-102, MCA, and the right to public sittings of the
courts, § 3-1-312, MCA. A complaint is a public document
pursuant to 5 2-6-101, MCA. These statutes reflect Montana's
 commitment to the public's right to know what is occurring
within the judicial system, including the filing of civil
suits.
Our function is not to determine whether the Billings
Gazette should respond in damages. That question will be
decided by a jury in federal court. Fairness, truth and
malice will be at the controversy's core. The qualified
privilege exists only where the report was true, fair, and
published without malice.
Our task is to answer the certified question. This
court did not enact the statute in question and does not rule
on its wisdom.
We hold that pursuant to S 27-1-804(4), MCA, a qualified
privilege is available as a defense for a newspaper publisher
in a defamation case when the alleged defamation consists of
facts taken from preliminary judicial pleadings which have
been filed in court but which h been judicially acted
upon.

We Concur:
, ,7

Honorable E/ran\k I. liaswell ,
Retired Chief Justice, sit--
ting in place of Mr. Justice
L. C. Gulbrandson
Mr. Justice John Conway Harrison, dissenting.

I must dissent. Once again we are presented with a
certification from the Federal Court without a sufficient
fact question to properly and fully answer the problem
presented.
As noted by the majority opinion, the complaint of
Laura Thomas, a diagnosed retarded person, was filed in the
United States District Court in Washington and was then
transferred to the United States District Court in Montana.
The complaint charged the petitioner, a long-time reputable
practitioner of law in Montana, of serious illegality
concerning the handling of the estate of Laura Cox's mother
and of Laura1s resulting guardianship, all of which
irreparably damaged the petitioner's reputation as an
attorney of law in the state of Montana. Evidence of the
untruth of the charges is clearly shown by the summary
judgment issued by the Federal District Court finding Cox
free of any misconduct of the handling of Laura's affairs.
However, it did not restore the petitioner's good reputation
to the hundreds of persons who read the first story in the
Billings Gazette, published on a Sunday in glaring headlines.
As noted by the majority, at the time of the publication the
petitioner had not been served, no reporter from the Gazette
had made any effort to check with him nor had any judicial
action been taken by a responsible District Judge.
This brings me to the issues presented to us from the
Federal Court of whether in a defamation case where the facts
in which the preliminary judicial proceedings filed in court
and having not been served upon the defendant or judicially
acted upon are privileged "judicial proceedings."
 Admitting that there are divergent views on this
subject, I choose to accept and support that view Mr. Justice
Oliver Wendell Holmes, Jr. expressed when he was a Justice on
the Supreme Judicial Court of Massachusetts:
The chief advantage to the country which
we can discern, and that which we
understand to be intended by the
foregoing passage, is the security which
publicity gives for the proper
administration of justice ...
It is
desirable that the trial of causes should
take place under the public eye, not
because the controversies of one citizen
with another are of public concern, but
because it is of the highest moment that
those who administer justice should
always act under the sense of public
responsibility, and that every citizen
should be able to satisfy himself with
his own eyes as to the mode in which a
public duty is performed.
[I]t is clear that [the grounds for
privilege] have no application whatever
to the contents of a preliminary written
statement of the claim or charge. These
do not constitute a proceeding in open
court. Knowledge of them throws no light
upon the administration of justice. Both
form and contents depend wholly on the
will of the private individual, who may
not be even an officer of the court. It
would be carrying privilege farther than
we feel prepared to carry it, to say
that, by the easy means of entitling and
filing it in a cause, a sufficient
foundation may be laid for scattering any
libel broadcast with impunity.
Cowley v. Pulsifer (Mass. 1884), 137 Mass. 392 at 394. See,

This same view is pointed out in the case of Park v.
The Detroit Free Press Co. (~ich.1888), 40 N.W. 731, 734.
Recognizing that these are earlier cases concerning
this matter, public policy considerations and the promotion
of important values requires that a privilege not be extended
to the publication in question. Here, the matter was not of
such grave import that there was not time to investigate more
fully these charges before publication.
The whole purpose of our constitutional rights and our
statutes grows out of the central core belief that the
individual comes first, that all men are children of God, and
that their personalities are therefore sacred and carries
with it a great belief that personal liberties should be
protected. It is repugnant that anyone would steal from the
human being that which is most precious to him --his good
name-- by imputing things that are untrue.
To me it is an especially unhappy circumstance that
occasionally this is done in the name of the First Amendment.
This, I believe, does not grant the protection of the law an
individual is entitled to expect.
It is the very basis of our great heritage that we
expect the strictest responsibility to be applied by those
who rely on the privileges of the First Amendment. That
responsibility should have been exercised by the Gazette
before it published any charges against Mr. Cox. Whenever
such care is not taken and those principles which protect an
individual and his good name against besmirchment by fal-se
statements are abused, we have failed to carry forward the
ideals guaranteed to us by our constitution and statutes.
I would find that until a competent jurist has examined
the files and the petitioner has had an opportunity to
respond, such pleadings are not privileged.
Mr. Justice John C. Sheehy dissenting:

I concur with the views expressed in the dissent of Mr.
Justice John C. Harrison, and add some additional comments:
Libel is defined as a false and unprivileged
publication. Section 27-1-802, MCA. To determine whether a
publication is privileged, one looks to S 27-1-804(4), MCA.
With respect to judicial proceedings, that section provides:
A privileged publication is one made: " (4) by a fair
and true report without malice of a judicial ...
proceeding . . ."
There is no automatic privilege under S 27-1-804, MCA,
for publications by newspapers. To be entitled to the
privilege, the publications must be fair, true, and without
malice. Otherwise there is no privilege. Unfair
editorializing or yellowdogging the allegations of a
complaint to slant the reader or sell newspapers would bring
the article within the rule announced by the New York Court
of Appeals in Klein v. McGauley (N.Y. 1968), 288 N.Y.S.2d
751, wherein it is stated in a slander action that a
statement which is extreme and beyond the bounds of reason is
not entitled to the privilege even though it were a part of a
judicial proceeding.
I further contend that the provisions of S 27-1-804,
MCA, in defamation cases should be examined in the light of
the later adoption in the 1972 Montana Constitution of this
provision:
... Every person shall be free to speak or
publish whatever he will on any subject, being
responsible for all abuse of that liberty.
Art. 11, S 7.
 It is apparent that the constitutional grant "to
speak or publish whatever he will on any subject" is far more
broad than the statute defining privileged communications in
$ 27-1-804, MCA. Under the constitutional provision, the
Billings Gazette is free to publish whatever and whenever it
might about any person or subject. The only limitation on
that freedom (perhaps I should say "chilling effect") is the
responsibility for abuse of the freedom. In defamation
cases, therefore, under the present state constitution, there
should be but two defenses, one that the statement is true,
(but truth above would not save the constitutional provision,
see - - Times, infra), and two, that the liberty to
New York
publish was not abused.
I would hold, therefore, that in defamation actions for
libel or slander, the statutory privileges for free speech
and a free press are not to be found within 5 27-1-804, MCA,
but rather center on whether the sta.tements made or the
articles published abused the liberty to speak or to publish
under state law.
ad hoc
While I admit that such a rule might lead to - -
determinations from case to case, the rule would be more in
accord with the trend to be observed in the decisions from
the United States Supreme Court which themselves appear to be

--
ad hoc, though generally in favor of the press. The United
States Supreme Court looks to the character of the person
defamed, and changes the burden of proof of malice
accordingly.
Thus, in New York Times v. Sullivan (1964), 376 U.S.
254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court
held that the First Amendment required the plaintiff to show
that in publishing the defamatory statement the defendant
acted with actual malice--with knowledge that it was false or
with reckless disregard of whether it was false or not--and
that such actual malice must be shown with "convincing
clarity." -- Times involved a public official, but the
New York

--
New York Times rule has been applied to public figures as
well, Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 351,
94 S.Ct. 2997, 41 L.Ed.2d 789, wherein a public figure was
defined as an individual who may achieve some pervasive fame
or notoriety that he/she becomes a public figure for all
purposes and in all contexts, or an individual who
voluntarily injects himself/herself or is drawn into a
particular public controversy and therefore becomes a public
figure for a limited range of issues. An attorney, however,
without more, is neither a public official nor a public
figure and the heightened standard of proof of -- Times
New York
and Gertz does not apply to the proof of malice.
It may be that the majority is saying in reality that
its "qualified" privilege is one that is fair, true and
without malice. If that be the true import of the majority,
it should be more plainly stated.