*1 COX, Petitioner, ENTERPRISES, INC., DALE v. LEE Billings Gazette, division Lee Respondents. No. 85-618.
Submitted June
1986.
Aug. 13,
Decided
1986.
Goetz, Dunn, & Bozeman, Madden argued, James Goetz amicus curiae, Daily Newspapers Reporters Allied Committee for Freedom of the Press. Helena, Ass’n,
Peter Meloy, curiae, M. Press amicus for Montana Press, Jour- Tribune, Society for Professional Great Falls Associated nalists & Montana Press Women. Opinion Court.
MR. delivered JUSTICE MORRISON *2 question accepted of jurisdiction to determine a This Court has Dis- Court for the the United States District state law certified trict of Montana. Glendive, attorney practicing in Mon- Dale Cox is an
Petitioner Billings Enterprises, Ga- Respondents Lee Inc. and tana. following zette, Enterprises, statement a of Lee Inc. division certifying question order facts is taken from the federal court’s to this Court. 1971, and Cox in an auto accident
In Laura Thomas was involved the insur- case with represent her. Cox settled the was retained living par- a minor with no company, because Laura was ance money ents, was appointed settlement legal guardian a was and the physical mental placed apparent Due guardianship. childhood, guardianship contin- impairments existing since Laura’s 1978, years legally be- beyond majority. In five after age ued her adult, coming guardianship terminated Laura had remaining funds to her. distributed 27, 1980, against Cox May filed Laura a
On Washington for the Western District of States District Court unnecessary guardi- of the alleging injuries resulting extension from 8,1980, served with anship. prior to the time Cox had been On June paraphras- published an Billings article complaint, Gazette complaint. The in the ing quoting allegations against Cox listed District subsequently to the United States transferred case was 23, Montana; by opinion December dated Court for the District of 1982, summary judgment favor of Cox. entered the federal court Lee against Gazette Cox filed defamation action 8,1980, In their article. the June answer, the news ar- respondents raised the affirmative defense 27-1-804(4), it was because privileged ticle under judicial proceeding. report a fair without malice of and accurate an or- argument court issued Following briefing and the federal oral 1986, question following of law January certifying the der dated this Court: be answered Montana, is the defense “Under the law of the State of newspaper publisher case when a defamation available alleged defamation preliminary judicial consists facts taken from pleadings which have been filed court but which have not been judicially upon?” acted applicable 27-1-804(4), MCA, is Section which makes statue report
fair judicial and true without malice of privi- leged publication. Respondents “judicial proceeding” contend should be construed encompass complaint. We agree. proceeding”
“Judicial is not defined within the Montana Code. Therefore, we look to approved usage the, appro- term priate meaning in law. Section
Included in the common “proceeding” definition of “legal ac- Collegiate tion,” Webster’s New Dictionary, and “the instituting Heritage conducting American litigation,” Diction- ary, College (1985). Second Dictionary, Black’s Law Edition (4th 1968), ed. lists the following “judicial pro- definitions of ceeding:” “Any proceeding action is invoked and taken;” “Any proceeding remedy allows;” to obtain such as the law “Any step taken in a prosecution court or defense of *3 an action.” plain
We look to meaning of paramount words because our task statutory construction is to legislators determine what intended they phrased when lay people statute. Most are look we to usage common in honoring legislative purpose.
Application of the above definitions finding leads us to a complaint phrase intended to be included within the “judicial proceeding.” apply
The
trend
qualified privilege
reports
modern
is to
to
judicial pleadings
yet
subject
which have not
been the
jurisdictions
action. In fact
complaint
part
most
hold that a
judicial proceeding.
explained by
The rationale is
an Illinois court in
Newell v.
Field
(Ill.App.1980)
Ill.App.
3d
“Certainly, importance administration of is of utmost to citizenry. pleadings While we are aware are one-sided and contain, by design, statements, highly deflamatory be- we [sic] lieve the pleadings information found such is of sufficient value as to encouragement publication.” warrant of its 415 N.E.2d 444. right inspect pubic to be documents and informed of Arti- strong expression in our state constitution. contents finds
their II, provides: cle Section right ex- deprived of the to person shall
“Right to know. No public of all bodies the deliberations amine documents observe except subdivisions, cases government and its agencies of state clearly merits privacy exceeds the which the demand public disclosure.” supported by statutorily interpretation privilege is
A broad documents, 2-6-102, Section right inspect public 3-1-312, A courts, MCA. Section right public sittings of the public pursuant Section is a document public’s right These reflect Montana’s commitment statutes including the judicial system, occurring to know what is within filing of suits. civil Billings Gazette whether the
Our function is not to determine by jury question respond damages. will be decided That Fairness, contro- will be at the truth and malice federal court. report was only versy’s qualified privilege exists where core. true, fair, This court did question.
Our task is to answer the certified its not rule on wisdom. question and does the statute enact 27-1-804(4), MCA, qualified pursuant We hold that publisher in a def- newspaper privilege is defense for a available as a of facts taken alleged defamation consists amation case when the filed in court judicial pleadings which have been preliminary from upon. judicially acted which have not been but WEBER and MR. JUSTICES MR. CHIEF JUSTICE TURNAGE HASWELL, Retired, sitting and HUNT and MR. CHIEF JUSTICE GULBRANDSON, concur. for MR. JUSTICE HARRISON, dissenting: MR. JUSTICE presented a certification again Once we must dissent. properly question fact a sufficient from the Federal Court without *4 problem presented. the answer Thomas, complaint Laura opinion, the of by majority the As noted States District person, filed in the United diagnosed retarded States transferred to the Washington in and was then Court petitioner, a complaint charged the District Court in Montana. The Montana, ille- of serious practitioner of long-time reputable law mother handling of Laura Cox’s concerning the estate gality the of resulting irreparably and of of guardianship, Laura’s all which dam- aged petitioner’s reputation attorney the as of of law the state clearly by charges Montana. the is shown Evidence the untruth of summary by finding judgment the the Federal District Court issued any handling Cox free of ever, the How- misconduct of of Laura’s affairs. petitioner’s good reputation it did not restore the the hun- Gazette, persons story dreds of who read the first the Sunday by glaring major- on a headlines. As noted the ity, petitioner at the time of the not had been served, reporter any no Gazette from the had made effort check any responsible with him by nor had been taken action Judge. District brings presented
This me to the issues to us from the Federal Court of in a whether where defamation case the facts which preliminary judicial proceedings having filed court and not been upon judicially upon served privileged defendant or acted are “judicial proceedings.”
Admitting divergent subject, that there views on this choose accept support Holmes, Mr. view Justice Oliver Wendell Jr., expressed he Supreme when was a Justice Judicial Court of Massachusetts:
“The advantage country discern, chief to the which we can that which we foregoing passage, understand be intended security publicity is the which gives proper for the administration justice ... It desirable place trial of causes should take public eye, under the not because the controversies of one citizen public concern, with another are highest but because moment that those always who administer act under public responsibility, every sense of and that citizen should be satisfy eyes able to himself with own his as to the mode in which a public duty performed. grounds privilege] application clear that have no
“[I]t [the whatever to the preliminary contents of a written statement of claim or charge. open These not do constitute a court. Knowledge light upon of them jus- throws no administration tice. depend wholly Both form pri- and contents on the will individual, may vate who be court. It even an officer of the it, carrying prepared carry be farther than we feel that, say cause, easy entitling it in means any sufficient scattering foundation libel broadcast laid impunity.” *5 532 See,
Cowley (Mass.1884), v. Mass. 392 at 394. Pulsifer 364, (1954). Colum.L.Rev. v. Park The Detroit pointed This same view out the case (1888), 560, 40 Free Press Co. 734. 72 Mich. N.W. matter, concerning this
Recognizing these are earlier cases that important promotion values public policy and the considerations ques- requires privilege that extended to the a not be Here, grave import there was was not of that tion. the matter such publication. investigate charges before not time to more these rights and our statutes purpose of our constitutional whole first, comes grows belief that the individual out of the central core God, personalities are all mean and that their that are children of personal liber- great it belief that therefore sacred and carries with a anyone protected. repugnant would steal ties should be It is that — his precious himto being from the human that which is most — good by imputing things are untrue. name occasionally especially unhappy To it is circumstance me an believe, This, I this is done in the name the First Amendment. to protection individual is entitled grant of the law an does not expect. very heritage expect the strictest great that we
It is the basis of our rely privileges by responsibility applied those who been exer- responsibility should have That the First Amendment. any charges against Mr. by the Gazette before it cised principles which and those Cox. Whenever such care is taken by good against name besmirchment protect an and his abused, carry the ide- forward we have failed false statements guaranteed us and statutes. als our constitution files competent jurist has examined I would find that until plead- respond, such petitioner opportunity had has ings privileged. are not SHEEHY, dissenting:
MR. JUSTICE MR. JUSTICE expressed in the dissent of the views concur with HARRISON, comments: additional JOHN C. and add some 27- publication. Section unprivileged Libel is defined as a false and privileged, one 1-802, publication is To determine whether proceed- 27-1-804(4), respect judicial MCA. With looks to Section provides: ings, that section “(4) report by a and true fair one made: privileged publication
A . . .” . . . malice of without 27-1-804, MCA, There is no automatic under Section publications by newspapers. privilege, pub- To be entitled to the fair, true, lications must be there is Otherwise privilege. editorializing no yellowdogging allegations Unfair newspapers bring slant the reader or sell article within Appeals the rule announced the New York Court McGauley Klein v. 29 A.D.2d 288 N.Y.S.2d stated slander action that statement which beyond extreme and priv- bounds reason is not entitled to the *6 ilege though even part it were a proceeding. 27-1-804,
I further provisions contend that the in Section adop- defamation light cases should be examined the the later tion in provision: the 1972 Montana Constitution of this Every person
“. . speak publish . shall be free to or he whatever any being will on subject, responsible liberty.” for all abuse of that II, Art. Section 7. apparent
It is grant speak that publish the “to or constitutional any whatever he subject” will on is far more broad than the statute defining privileged communications Gazette is free to provision,
Under the constitutional the publish might any person whatever and whenever it or sub- about ject. only (perhaps say limitation on I that freedom should effect”) “chilling is responsibility the for In abuse of the freedom. cases, therefore, constitution, present defamation under the state true, defenses, there should be but two one that the statement is (but truth above provision, would not save the see constitutional Times, infra), New York two, liberty publish the that was not abused. hold, therefore, that defamation actions for or libel slan-
der, statutory the privileges speech press for free and a free not 27-1-804, MCA, to be found within Section but rather center whether the or statements made the articles abused the liberty speak publish or to under state law. ad hoc
While I might admit that such a rule lead to determinations case, from case to the rule more in the would be accord with trend to be observed in Supreme decisions from United States hoc, ad appear though Court which generally themselves to be press. Supreme favor of the States Court looks to defamed, person changes proof character of the burden malice accordingly. New
Thus, York Times v. (1964), 254, Sullivan 279- 376 U.S. 534 710, 725-726, Supreme Court held S.Ct. L.Ed.2d plaintiff required to show that
that Amendment First ac- defamatory defendant acted with publishing statement — reckless dis- knowledge was false or with tual malice that it — malice regard or and that such actual of whether it was false clarity.” New Times York “convincing involved must be shown with New York Times rule has official, applied been public but the Welch, Inc. well, Gertz v. 418 U.S. Robert public figures as public 323, 351, 2997, 3012, figure 94 S.Ct. L.Ed.2d may pervasive fame an who achieve some defined as individual figure purposes all notoriety public that becomes a he/she contexts, voluntarily injects who all himself/her- controversy and particular public into therefore self or drawn attorney, An range public figure of issues. becomes a limited however, public more, figure public neither official nor proof New Times and Gertz York heightened standard apply proof does not to the of malice. reality “qualified” its majority saying in
It be that fair, If that be true and without is one import plainly stated. majority, be more true