*1 correctly alone, rejected court, The trial ground of a ordinance which had city about testimony violations not authenticated pleaded, properly been properly identified. properly
The trial court should be affirmed. J., J.
Wright, Brachtenbach, concurs with J.* in the dissent)— result (concurring Ryan, the doc- majority’s However desirable endorsement be, trine of this is not warranty habitability may implied case for its proper application. I would, therefore, of the concur the result dissent.
Petition denied December 1973. rehearing 42664. En Banc
[No. October 1973.] Petitioner, Willard Chase, Record, Inc., Respondent. * Ryan justice serving tempore pro Supreme Justice as a 38). pursuant 2(a) (amendment to Const. art. § *2 Shaw), peti- (of for Dauber & Tonkoff,
J. P. Tonkoff tioner. (of Applegate, McDonald, Halverson,
Alan A. McDonald
Almon),
respondent.
Grahn, Wiehl &
for
Bond,
of the Kittitas
an order
action concerns
J. This
Finley,
County Superior
granting
of
the
a motion
defendant/respondent newspaper,
Record, for
judgment dismissing
summary
action instituted
a libel
plaintiff/appellant,
the
Chase.
Willard
spring
In the
The facts of the instant case are as follows:
appellant,
of
was a commissioner
Chase,
the
Willard
County
ato
state
Kittitas
Port District. Pursuant
the
port
requested to make
district,
audit of the
Chase was
upon
“repayment”
port
the
the
to
district
certain sums
allegedly
from
that
received reimbursement
basis
he had
port
trip
supposed make,
he
to
the
district for a
which was
actually
Washington,
to
D.C.
he
take
but one which
did not
local,public
that
commissioner of the
The record shows
a
utility
trip
appellant
Commis
took the
instead
district
April 9, 1971,
Port District. On
sioner Chase
the Kittitas
County
learning
newspaper
intended
after
that a
in Kittitas
story
“repayment,”
publish
relating
Chase
to this
to
a news
owner-publisher
paper
requested
of the
and
contacted the
published.
permitted to
Chase
that
have a statement
he be
newspaper
point
the
to
office
was advised at that
contact
April
telephoned
morning.
following
10, 1971, Chase
the
On
newspaper
prepared
a
and read
the editor
day,
newspaper ran a
the
news arti
statement.1 That same
following
newspaper:
purportedly
to the
read the
Appellant
“
my slogan during
Community
the
has
Service’
been
to
‘Dedicated
newspaper
years
Under this banner
the
business.
I have been
that
issue,
the
state
publishing
part
the “repayment”
cle
the
Chase
he
but
assertion
Chase,
omitting
ment
no
reimbursement
had
received
funds as
actually
that he did not take. This omission constitutes
trip
accept
as
I have learned to
criticism and abuses
one of the hazards.
my position
This has been true
unsalaried
Port Commissioner.
However,
[s]omething
I
Port
feel
unfair
and other
officials
there is
permits
leving
heavy fines,
under
about
law that
[sic]
hearing.
being sued,
threat of
without
attorney
why
one
I
“More than
and auditor
have wondered
repay
expenses
Washington
trip
asked to
I did not
which
take,
money paid
Legal
and
no
for which there was
counsel
me.
against
I
have received advises that
fine levied
in connection
me
port audit,
court; but,
the recent
be
the cost
could
reversed in
many
plus lengthy
away
fine,
me would
be
no doubt
times the
time
my business.
from
“My
harmony
concern for continuation
the Port
led me
money
pay
My
pride,
to swallow some
save some
fine.
checks
accepted
following
were submitted
comment:
*3
admitting
any wrong doing.
“T am not
to
Since there
no
means
appeal
expensive
trial,
an
other
than
for
court
which I have neither
money,
my understanding
time or
the
there is no other choice. It is
personally
the
as
this closes
case
far as I am
concerned in the matter
”
legal
damaging publicity.’
action and further
actually
newspaper
published
following story:
repay
2The
the
“Port
ment made
Attorney
Friday
Olympia
re-payments
“State
General’s office
said
penalties
by
and
to
have been made
the
District
Port
Kittitas
two
County Port officials.
spokesman
resigned
“A
at
the office said
Commissioner
Phil Kern
payment
pay-
had made a
and
$994.93
Commissioner Willard Chase
payments
County
ments of
and
All
$551.69
$19.43.
were made to the
‘repayment
penalty’,
Port District
and were
termed
and
relative
They
‘completed.’
to the recent
of the
audit
Port.
said the action was
spokesmen
any
regarding
“The
declined to make
com-
Mundy
Manager
(Buck)
missioner Pat
and Port
Robert
Buchanan.
against
pending
Superior
are
Cases
the two men in
Court.
Thursday
port meeting
“Buchanan
state
did
at a
that he had been
$4,000
promoting
Ellensburg
more than
for
fined
his work
the
Rodeo
as a result of the state audit.
‘Legal
said,
penalty
“Chase
I
council
have received
advises
against
court,
me in connection
the
audit
could be
reversed
many
penalty
plus
the
but
cost
to me would no doubt be
times
lengthy
my
My
away
of,
time
from
for
business.
concern
continuation
harmony
pride,
and
in the Port
led me to swallow some
save some
reviewing
for the
After
var
basis
immediate libel action.
pretrial
depositions, interrogatories,
ex
affidavits,
ious
and
including
hibits,
itself, the trial
the news article
court
granted
by
respondent newspaper
a motion
for sum
mary judgment.
support
In
order,
of this
the court ob
present
to
served that Chase had failed
evidence sufficient
any
relating
to
to
demonstrate the existence of
issue of fact
necessary
libel action
material element
which
public
public
to
interest,
concerns a
official in matter
ruling
wit: actual malice. This
of the trial
af
court was
by
Appeals.
firmed
the Court of
preceding judgments
reviewing
case,
in this
pertinent
modification
the law
mindful
arewe
Supreme
States
United
libel established
L.
2d
Sullivan,
11 Ed.
New York Times Co.
U.S.
(1964), as
710,
found national commitment to the robust, uninhibited, issues should be may wide-open, vehement, caus- and that it well include sharp govern- unpleasantly attacks on tic, and sometimes Chicago, Terminiello v. ment and officials. See Jonge Oregon, De 299U. 365. 4; U. S. S. penalty. money pay the “ following accepted com- with the ‘My submitted checks were wrongdoing. no admitting there is means Since not “I am ment: expensive trial, I neither for which have court appeal than other *4 understanding my It choice. money, no other there is time nor personally I concerned in as am case as far this closes ’ damaging publicity.” legal further action and matter trip Washing- larger Port he did not take to amount was “The plant grant pursuit of a for a steam smaller amount in ton D.C. motorcycle Upper county. promotion of a event said, bought separa- the amount T the color “Kern confirmed ” port.’ making printing plates) (used from the tions supra Upon this Sullivan, New York Times Co. at 270-71. v. basis, the court concluded as follows: guarantees require, think, The a fed- constitutional we recovering prohibits
eral damages rule official from defamatory relating for a to his falsehood proves official conduct made with that the statement was unless he knowledge is, “actual malice”—that with disregard it was false or it with reckless whether was false or not. supra Accord,
New York Times Co. v.
at 279-80.
Sullivan,
29,
29 L. Ed. 2d
Metromedia, Inc.,
Rosenbloom v.
U.S.
(1971);
296,
75,
Baer,
ject allegedly libelous news article as a result of his public position port district commissioner; his own his admission, conduct constituted an “issue of general supra concern.” Rosenbloom Metromedia, Inc., at “public 44. Chase Thus, was a official” as defined New Times, therefore, York at the final or “full-blown” trial stage required prove by of the lawsuit, would be evi- meeting clarity” “convincing pre- dence the standard of
42 Supreme by the decisions of the United States scribed defamatory allegedly (1) con- that (2) cerning false, was, fact, conduct in his official knowledge published it with this false statement was disregard of it was false false or with reckless whether or not. stage opening pretrial or
Faced at lawsuit summary judg- newspaper respondent a motion for setting producing or forth ment, Chase had burden of “specific showing genuine a of material facts there is issue Tangen, 259, 263, 432 for trial.” Plaisted v. 72 Wn.2d fact upon (1967). requirement This was elaborated P.2d 647 (1967), Frogge, 197,200-01, Leland P.2d 724 v. 71 Wn.2d 427 as follows: summary judgment is to The function determine genuine requir- fact
whether there is a
ing
issue material
62
Underwood,
195,
a formal
P.2d 966
Balise v.
Wn.2d
trial.
(1963);
v.
Wn.2d
389
Balch,
Olson
63
381
(1964).
judge
P.2d
contained
other material
The evidence before
is
900
pleadings, affidavits,
in the
admissions and
properly presented. State ex rel. Bond v.
(1963);
P.2d 288
3 Barron
State,
62 Wn.2d
383
&
§ 1236.
Holtzoff, Federal Practice and Procedure
When
pleading
properly
or
is
made and is uncontra-
affidavit
purposes
passing
may
be
as true
dicted, it
taken
summary judgment.
upon
Dun-
Preston v.
the motion
Henry
(1960);
v.
678,
with
tual
plaintiff’s
failing
having
denial
insert
malice
trip.
money
in connection with
received
App.
(Italics ours.)
1, 4,
Inc.,
Record,
Chase v.
8 Wn.
very
agree
this
basic
we
As
lawsuits,
mill
it well
that the function
is
established
summary judgment
ruling upon
trial
in
a motion for
court
issues,
not to
with the ultimate
is
resolve the basic factual
finality
expected
appropriate
or
and is
at the final
which is
stage
trial
Rather,
trial
of a lawsuit.
“full-blown”
genuine
a
court’s function is to determine whether
issue
Hughes
material fact exists.
v. Chehalis School Dist.
Jolly
(1963);
59
Fossum,
61
Adverting proof presented to the trial now to the factual pub- Record court in the instant case: the defendant plaintiff, including these lished news article about county port payments to the statements: “All were made penalty’ ‘repayment and district and were termed as larger port trip [t]he he did not . . . amount was for a clearly Washington, implies that take to D.C.” This trip plaintiff repayment for the of a he did not made a cost paying Repayment take. is defined as the act of back. Web- Dictionary (1971). ster’s Third New International In other import re- words, the full of the article was that money, pretense of i.e., ceived funds under the false having expenses trip fact, had never he, incurred plaintiff made a Further, discovered, made. when that was repayment. *7 the whole, leaves the reader with article,
The taken as a port implication public of monies clear of defalcation plaintiff personally public It not true that re- official. was expense money. repaying that ceived this To state he was something he had never received was false. it false. In the made to
Defendant knew was statement plaintiff managing prior publication, to editor, defendant’s any money. that never received He as- asserted he had emphasized point more than once in serted that he that managing giving editor. his statement to the significance, proof, for whatever its that Plaintiff offered composed promi- of local club, described coffee at a local appeared, people, article it after the was said: and nent everyone finger their had in the till. I like it looks “Well newspaper.” only in the I read what know clarity” imposes “convincing required the itself level or of standard possibility additionally of proof further the bur- quantum of without evidentiary proof equated plaintiff of dening an standard with with the substantial. the term no find that there was trial court to It error for the was printed or knowl- evidence that the article was false falsity. analysis edge demonstrates, use the of its As above “repayment” possible implication of of word carries the subsequent receipt public improper funds and an and use plaintiff repayment. publication Prior to statement which allegedly im- to defendant indicated that such an read the plication and false. was untrue judgment plaintiff prima case made out our the facie convincing clarity. proof to He was entitled
and his was damages defamation, malice, have the issues of actual judgment the trial the trier of facts. The determined Appeals the the case court and is reversed and remanded for trial.
Hale, C.J., Hunter, Hamilton, Wright, Stafford, JJ., Utter, Brachtenbach, concur. (concurring part; dissenting part) J. Rosellini, —I majority summary judgment
concur at plaintiff stage action, of a libel has offer evidence quantum prima case, to establish a facie and that sufficient equated can be offered evidence with the standard clarity” successfully “convincing test of a sum- resist majority mary judgment. finding I dissent majority has met this test. admits claim for relief for the libel action which concerns a I official in a matter interest is actual malice. am any is, to find offered evidence of malice—that unable knowledge that it made with or with false disregard of it false or whether was not. reckless pertinent consists on file which is The record *8 publisher McGiffin, The owner affidavit of James J. Daily managing Ludtka, editor of Record, and John Inc., published that the article The Both state as Record. published April not malice true and 1971, was including any named Commis- therein toward individuals The affidavits are consistent with sioner Willard Chase. 46
previous
by
answer filed
the defendant. These
state-
sworn
denying
alleging
ments
malice and
the truth of the refer-
any point
enced article are not controverted at
in the record
by plaintiff
by plaintiff’s conclusionary
other than
state-
original complaint
ment contained in the
in
the subse-
quent
plaintiff support
affidavit. At no time does
his conclu-
sionary
necessary
statement with an itemization of facts
summary judgment.
rejected
avoid a
The court
such a
avoiding summary judgment
method of
in the decision of
App.
Brown
(1970),
Child,
Wn.
Act of
without
facts. Such an
unsupported conclusional statement cannot be considered
summary judgment.
a court in a motion for
Peninsula
Lines,
Truck
Inc.
Tooker,
Wn.2d
the article portion self-serving being it left out a his own candidly admitted the truth of Plaintiff the arti- statement. Attorney from the factual basis General’s demand on a cle during deposition. the article his Plaintiff outlined admitting responsibil- additionally no hesitation in had print ity the article. Plaintiff further admits of defendant self-serving his wherein he read to circumstances
47 telephone fact not in did and to Ludtka over the editor portion which him require to the Ludtka to read back apparently he so concerned. was only the plaintiff’s was to malice effort establish
The previously position publisher evi- that defendant’s management operation and with the denced dissatisfaction resign. port urged to of and had district posi- readily plaintiff, that the affidavit, admits The opposing occupancy of of the office tion of the his defendant justifiable philosophical port entirely on commissioner assumption ma- of malice. The resort to basis without jority clearly “repayment” finds the use of the word that implies improper receipt and funds use repayment, subsequent it false that statement. was convincing majority not The does discuss what evidence clarity regard disregard of malice, to or a reckless it false or shown. not, whether was gravamen regard libel action in to a that be statement, is not that it is a false but it must official disregard it was made with malice reckless whether Sullivan, or not. York false New Times Co. 376 U.S. (1964). 2d Ct. L. Ed. 84 S. A.L.R.2d 1412 [E]rroneous debate, in free statement is inevitable protected expres it . . . must be if freedoms of they “breathing space” are to have the “need sion . survive,” . . . to . . supra York v. Sullivan,
New Times Co. at 271-72. Injury reputation official no more affords warrant repressing speech than does would otherwise be free factual error. supra Sullivan, Times Co. at 272. York
New
guaran-
compelling the critic of official conduct to
A rule
truth
all his factual assertions—and to do so
of
judgments
tee
pain
virtually
unlimited
amount—
of libel
“self-censorship.”
comparable
of the
it on the
Allowance
leads
proving
truth,
burden
defense
defendant,
only
speech
be
not mean
false
will
does
accepting this defense as an ade-
Even courts
deterred.
quate safeguard
recognized
have
the difficulties of adduc
ing legal proofs
alleged
that the
libel was true in all its
particulars.
e.g.,
Publishing
factual
See,
Post
Co. v. Hal
(C.
1893);
lam,
59 F.
A. 6th Cir.
Noel,
see also
Defamation of Public
Candidates,
Officers and
49 Col. L.
Rev.
Under such rule,
would-be critics
may
voicing
official conduct
be deterred from
their
though
criticism, even
it is
believed
be true and even
though it is in
true,
fact
because of doubt whether it can
*10
proved
expense
be
having
in court or fear of the
to do
They
only
so.
tend to make
statements which “steer far
Speiser
supra,
wider
the unlawful zone.”
Randall,
variety
357 U.S.
(1958)
]. The rule thus
[513]
at 526
debate. It is inconsistent with the First
[2
dampens
L. Ed.
2d
vigor
damages defamatory relating falsehood to his official proves conduct unless he that the statement was made knowledge with “actual is, malice”—that with that it was disregard false or with reckless of whether it was or false not.
(Footnote omitted.) 376U.S. at 279-80. evidence, present any
I find that the has failed to supportive showing upon part malice 'the defend- ant. No evidence was offered to show that the article as it appeared print published any was false and knowl- falsity edge any disregard reckless falseness. Appeals. I would affirm the trial court and the Court of rehearing Petition for denied December 12, 1973.