*1 above, noted the current version is a non- appeals panel from an before there could substantive codification of judicial the law about be review under either section which Senator Montford wrote. The 410.255or section 410.031? Court early next discusses say. does not or cannot Court drafts Act. See 19 S.W.3d at But 403. Senator writings Montford’s are not addressed to He drafts. wrote 1991 about the Act as recognizes The Court section
passed by the Legislature 1989. face, 410.255appears, grant on its Finally, says the Court that “further right judicial But review. the Court during revisions codification then express- give declines to the section that effect. ly tied section 410.251 to both sections I Accordingly, respectfully I dissent. 410.301, 410.255and requiring appeals jur- would hold the district court had panel review for both.” 19 S.W.3d 403. appeals by providers isdiction Again, revisions were intended to be medical benefits. were, fact, non-substantive. Cf. Texas,
Fleming
Rylander,
Foods
Inc. v.
(Tex.1999).
tantly, changes made when the Act was
codified, otherwise, non-substantive or did
not “tie” 410.255 appeals section to an
panel decision. There is no mention
section 410.255 appeals panel of an deci- HUCKABEE, Petitioner, Dean sion. Nor is there any “tying,” express or otherwise, (the between section 410.251 ex- haustion of remedies section that includes TIME WARNER ENTERTAINMENT review) a reference to an appeals panel L.P., Respondent. COMPANY and sections 410.255 and 410.301. Just the opposite is true. No. 98-1018. 410.301(a) Notably, section expressly re- Supreme Court of Texas. appeals
fers to an panel decision while section 410.255 Compare does not. Argued Nov. Tex. 410.301(a) (“Judicial § review of Lab.Code 4,May Decided decision appeals commission final panel regarding compensability eligibili- or ty for or the amount of income death
benefits shall be provided by conducted as added)) subchapter.” (emphasis ivith (“For §
id. 410.255 all issues other than 410.301(a),
those covered ju- under Section
dicial review shall be conducted in the provided judicial
manner review aof G.”)
contested case under Subchapter This is a recognition in the difference provisions
Code ap- themselves that an
peals panel decision prerequisite is not a judicial review issues covered Moreover, section why was ref- ^10.255.
erence to an appeals panel necessary in 410.301(a) if,
section says, as the Court already
section required 410.251 a decision *4 Marshall, Kelly, E. Tynan
James Diana Franzetti, Houston, Petitioner. Paul J. Ford, R. Ben George, A. Julie James Austin, Respondent. Jay Cunningham, PHILLIPS delivered Chief Justice Court, Justice opinion which ENOCH, BAKER, Justice Justice ABBOTT, HANKINSON, Justice Justice O’NEILL, and Justice GONZALES joined. a media defen- decide whether
We must by public offi- dant sued for defamation on the of this record cial is entitled facts issue of actual summary judgment on the produced malice. Because defendant negating actual malice as a mat- worker Wilma Smith Michael caused law, ter of plaintiff further, and because the did injury. investigating After produce controverting raising Wayne Smith concluded had been issue, fact we affirm the summary judg- abused, but that the could not abuser be granted by the court appeals. 995 identified. Because Michael was a Hous- S.W.2d 152. officer, police ton the Houston Police De-
partment’s Department Internal Affairs I also investigated the incident and likewise determined that the abuser could not be arose, When claim Charles Dean identified. presiding Huekabee was judge of the 247th District County, Court of Harris which Alleging that Michael had abused gives preference statute family law mat- Wayne, modify Sandra moved the custo ters. § 24.424. Tex. Gov’t Code dy order to restrict Michael’s visitation HBO, Huekabee claims that Respondent, rights. a three-day hearing After defamed him broadcasting the docu- 1988, Judge March Huekabee rendered a mentary Women on Trial on premium its temporary order that not made Mi cable channel. hour-long program This chael rather managing than Sandra the chronicled four southeast Texas cases Wayne, conservator of went to deny but family which granted custody courts of a *5 child, Sandra all access to her though even child to the father after the mother ac- sought Michael had not either of these cused the father of child abuse. Three of changes. unsuccessfully sought Sandra a these cases arose in County, Harris writ of mandamus from the court of ap Judge Huekabee presided over two peals to temporary overturn the order. Judge them. Huekabee principally claims Huckabee, See Hebert v. No. A14-88- documentary defamed him in its 00511-CV, 1988 WL (Tex.App. report on his regarding decision the custo- Dist.], 14, 1988, —Houston July orig. [14th dy four-year-old Wayne Hebert. See In proceedingXnot designated publica for re the Marriage Sandra Hebert tion). did not seek a subsequent She mod Hebert, 84-18892,
Michael No. In re John order, ification of the it and was still in Hebert, Hebert and Wayne Minor Chil- effect when Women on Trial was broad dren, (consolidated No. in cast cases)(247th Ct., Dist. County, Harris Tex. 13-15,1988)(“Hebert ”). Mar. Grant, In late Lee the director of Trial, began The Hebert Women on first work began case on a when documentary Sandra Hebert about divorce. to ex- Wayne Hoping discovered that had injury happily sustained an to amine how once penis. couples his married day before, Wayne divorces, later up had ended bitter visiting returned from Grant Hebert, Michael production his secured her compa- father and husband’s Sandra’s Wayne ny, (JFP), ex-husband. gone Joseph Feury had with Mi- Productions to chael to grandmother’s produce visit his assigned home in the film. Grant JFP Believing Louisiana. employee Virginia Michael caused Cotts to find suitable Wayne’s injury, Sandra consulted with her program. stories for the In March Turner, Sherry friend a police Houston Reyn- Cotts met Houston with Joleen olds, officer specialized who in sexual abuse the leader of Organized Citizens Turner, alone, interviewing cases. Wayne (CODES), Divorce Ethics and Solutions videotaped Wayne’s support statement that Mi- group for men and women who injured chael him taking had while family bath. felt that the Houston courts had interviews, In two videotaped other unfairly. Reynolds treated them discussed Wayne Cotts, also told social Cheryl worker Ben- of cases including number with nett and Child Protective Services case- meeting the Hebert case. After with re- In Grant and Cotts
Reynolds, three-page sum- November Cotts wrote and videotaped turned to Houston mary of Sandra Hebert’s situation. stated Huckabee. While Huckabee story included Sandra Hebert’s specifically he talk about the could not along with several others submitted it was in his pending Hebert case because April and Grant to HBO in 1991. In Cotts court, to it agree he talk about did story, Cotts her Hebert explained terms. He then “hypothetical” (1) following points: included the bullet other that all of his decisions this and (2) son”; “Cor- “Police ex-husband abused were on the interests of cases based best father/abuser”; custody to rupt Judge gave did include these the children. HBO all her “Sandy rights lost to see Instead, it in the final version. statements story particularly child.” Sandra Hebert’s Huckabee response aired After impressed the HBO executives. “hypothetical” version question about a it, Nev- reading vice-president HBO Sheila of the Hebert case: story. copy: ins wrote on her “Great Do best the child. If I have do what’s assistant, Wilson, at once.” Nevins’s Cis someone, uh, is, the a child brainwashing “Great, story.” After consider- wrote: sad psycho- extent that causes same agreed purchase ing proposal, HBO problems with logical and emotional Throughout the film. rest of the film’s child, coupled phys- some especially met production, regularly and Grant Cotts abuse, my opinion ical the child with Wilson and Nevins. be removed from situation. Houston Cotts and both came to Grant Hucka- The broadcast also aired to film interviews. addition to Joleen for deter- explanation of his criteria bee’s Hebert, her current Reynolds, Sandra mining when a mother in that situation also inter- attorneys, and former again: could see her children *6 Raschke, Ivy woman who viewed another Well, person if a who has mental [sic] its to had been access her children denied problems, they’re going to have health chil- Judge accusing Huckabee after health, uh, If its care. to seek mental father of Cotts also contin- dren’s abuse. child, person sexually abusing a a [sic] of allegations her into other ued research probably have to seek they’re going to family County in Harris impropriety mental care. health courts, by local including reported those Hucka- Finally, Judge the broadcast aired and media. print broadcast that he took the decision bee’s statement seriously, deny parent very to a to access September In JFP delivered had made that he that he but was satisfied film “rough cut” of the to HBO. Cotts’s in in which the correct case every decision contemporaneous report status revealed he had done so. Lee and Sheila tension between Grant Dr. Kit The filmmakers also interviewed film’s Grant Nevins over the direction. Harrison, pic- psychologist appointed present to a broad apparently wanted many in Hebert and the fa- Huckabee of that showed both ture divorce after other cases. Four months perspectives, and mothers’ but thers’ order temporary that fo- Huckabee rendered piece a narrower Nevins wanted Wayne, to family denying Hebert access Sandra cused on mothers who believed concluding unfairly. report Dr. Harrison issued system court had treated them inju- however, Wayne’s in- Michael had not caused Nothing report, the status Rather, Grant, Cotts, report concluded anyone ry. or dicated Wayne’s John committed anything the documenta- older brother HBO believed custo- Wayne abuse while was Sandra’s entertained serious doubts ry be false or belief, Harrison Based Dr. allega- dy. of of the film’s about truth Huckabee’s decision agreed tions. (2) Wayne custody punishment”; and “medieval in their transfer his father’s “[wjomen deny Although Sandra access to the child. charge who their husbands with Dr. the final version mentioned Harrison’s mentally unsta- abuse are often viewed as approving judge’s recommendation of the routinely custody and lose of their ble order, it did not detail Dr. Harrison’s rea- (3) children”; depicted in rulings all the sons. documentary in one happened court- (4) house; Randy conclusions Burton’s Finally, Cotts and Grant interviewed family courts the film that the Houston Burton, attorney Randy Houston an out- good boy ole’ “were the last bastion spoken family critic of the Houston courts. system” judges and that those Among things, other Burton accused the indiffer- guilty courts were “conscious County family judges prac- Harris court “legalized to the child” and child ence ticing cronyism disregarding the best alleged that abuse.” Huckabee also interests of the children them. before description the film’s of the Hebert case interviews, After these Cotts and Grant important omitted facts that have would film recut the to include some of the new led viewers to conclude that his HebeH footage. April to September From justified. order was film, lawyers HBO and JFP’s reviewed the finally allowing the film air in October discovery, After HBO moved for sum- agreed indemnify also HBO JFP (1) that: mary judgment asserting HBO should a film in arise from the malice; film published the without excess JFP’s errors-and-omissions in- (2) Judge actually Huckabee’s claim coverage. surance pleaded light a cause of action for false
Women on Triol aired on October invasion of which Texas law does privacy, (3) In addition to the Sandra Hebert recognize; all the statements con- Ivy Raschke film segments, the includ- cerning Judge literally Huckabee or were one, ed two other (4) stories. another Har- true; substantially these statements County family ris Al- judge, district court constitutionally protected were state- Daggett, custody len had transferred opinion; ments of Women on Mary Frances Parker’s child to her ex- privileged Triol as a fair and reason- husband, rapist, a convicted even though on, of, able comment an offi- criticism she claimed that he was abusing the child. cial public act of official and matter other, In the Sherry Nance was convicted concern. public Tex. *7 Civ. Peac. & of murdering her ex-husband and his fa- 73.002(b)(2). § trial After the Rem.Code County ther after a Bee jury awarded summary court denied HBO’s motion for custody of her son to the ex-husband. judgment, appealed HBO as a media de- Nance that claimed she killed her ex-hus- fendant who was denied a motion for continuing band save her son from sexu- summary judgment “arising under documentary al abuse. The did not name speech press free or free clause of the judge County in the Bee case. First Amendment to the United States Constitution, 8, or Article Section HBO, JFP,
Judge Huckabee sued Constitution, Chapter the Texas or 73” Grant, Burton, claiming and had the Texas Practice and Remedies Civil by particular defamed him both statements PraC. & Code. by him in portraying general as a Tex. Civ. Rem.Code 51.014(a)(6). § appeals, The court of judge knowingly disregarded who chil- jurisdiction challenged, whose was not re- dren’s best interests. In addition to his judgment versed and rendered HBO documentary claim that the entire defamed him, Judge ground negated on the sole that HBO alleged Huckabee as false and Hucka- defamatory these statements: one essential element family by conclusively it proving Houston courts were “filled” with bee’s case cases actual “irrational their decisions” and broadcast Women on Trial without
420 granted
malice.
421 ing the at clear-and-eonvincing adequately protected important standard trial these summary judgment stage, they argue, liberty Id. interests. at 557. To some align practice would also Texas extent, most holding we based our Casso Finally, they other states.2 contend summary judgment role of different heightened evidentiary standard is systems. the Texas and federal at id. summary judgment stage needed time, summary At our state’s protect media defendants from the costs judgment practice served the limited “ defending groundless associated with defa- purpose ‘eliminatfing] patently unmer- ” mation actions. Failure to media protect defenses,’ itorious claims and untenable costs, organizations against these as- Auth., (quoting id. Creek Clear Basin 589 sert, will self-censorship, thereby lead to 5), S.W.2d at 678 n. while the federal “ compromising the First Amendment’s system played “integral part” an ‘se guarantee press. of a free curing] just, speedy and inexpensive ” adopt We decline to the clear-and-con every (quoting determination action.’ Id. vincing requirement at the judg Catrett, 317, Corp. lotex v. 477 U.S. Ce 327, Brand, ment stage. Casso v. 776 (1986) 2548, 106 91 L.Ed.2d 265 (Tex.1989), S.W.2d 551 we held that nei 1)). (quoting Although Fed.R.Civ.P. our ther the United States Constitution nor adoption recent of the no-evidence sum the Texas Constitution mandated a special mary judgment procedure as an alternate summary judgment procedure public- obviated, extent, in Texas to some figure defamation cases. Id. at 555-57. in summary judgment differences proce We concluded that the United States Su systems, dure the two holding between our preme requirement Court’s plaintiff that a practical Casso was also consistent with come forward proof with sufficient to allow considerations, today. which remain valid jury finding of actual malice clear- difficulty One consideration is the and-convincing merely evidence was based in adapting review under a evi- heightened procedure. on federal See id. at 555-56. dentiary summary judg Texas Although recognized we importance practice. Requiring the trial “encouraging free and court untrammeled ex pression on public summary judgment matters of determine at the concern or interest,” we plaintiffs stage juror believed whether a could reasonable heavy burden of proving actual malice at find the evidence to be clear and eonvinc- Co., 675, Birmingham (1989); 2. See Pemberton v. Foley News 482 680 N.E.2d v. WCCO Tele 257, (Ala. 1985); vision, So.2d 260 Inc., 497, Read v. Phoenix (Minn.Ct. 449 N.W.2d 503 Inc., 353, 939, Newspapers, 169 Ariz. 819 P.2d App.1989); Johnson v. Delta-Democrat Pub (1991)(en banc); 942 v. Southall Little Rock Co., 811, (Miss.1988); lishing 531 So.2d 815 Inc., 123, Newspapers, 332 Ark. Co., 497, Scacchetti v. Gannett 123 A.D.2d 507 187, (1998); Digest 193 Reader's v. Su Ass'n 337, (1986); N.Y.S.2d 339 v. Greens Proffitt Court, 244, perior Cal.Rptr. 37 Cal.3d 208 Record, Inc., 218, N.C.App. boro News & 91 137, 610, banc); (1984)(en 690 P.2d 614 Di- 292, (1988); 371 S.E.2d 293-94 v. Perez Koltnow, 119, 318, Leo v. 200 Colo. 613 P.2d Co., Scripps-Howard Broadcasting 35 Ohio (1980)(en banc); 323 Boatright, v. Gardner 215, 198, (1988); St.3d 520 N.E.2d 202 Ertel 755, 847, (1995); Ga.App. 455 S.E.2d Co., 93, v. Patriot-News 544 Pa. 674 A.2d Liberty Newspapers Partnership, Jenkins v. Ltd. 1038, Austad, (1996); Krueger v. (1999); 89 Hawaii 971 P.2d (S.D.1996); N.W.2d Ben Palmer v. Rankin, Wiemer v. 117 Idaho P.2d Dist., Inc., nington Vt. Sch. 615 A.2d (1990); Smith, Heeb 613 N.E.2d (1992); Publishing Herron v. Tribune (Ind.Ct.App.1993); Carr v. Bankers Co., 108 Wash.2d 736 P.2d (Iowa Trust 546 N.W.2d (en banc); Long Egnor, W.Va. *9 1996); Co., v. Knudsen Kansas Gas & Elec. 628, 778, (1986); Torger 346 S.E.2d 785-86 469, 71, (1991); 248 Kan. 807 P.2d 81 Sas Journal/Sentinel, Inc., 524, Elder, 345, son v. 210 Wis.2d (La. 1993); sone v. 626 So.2d 351 472, (1997); Oil, Co., 563 N.W.2d 480 Chem. & Guy Publishing Tucci v. Gannett 464 A.2d 161, (Me. 1983); Laboratory, 167 Atomic Workers Int’l Union v. Sinclair Oil ELM Med. General, Inc., 779, 283, Corp., (Wyo.1987). Inc. v. RKO 403 532 748 Mass. P.2d 289 422 of a performing trial court must some of the functions find
ing suggests
the
Anderson, 477
See
&
evidence.
er of fact.
Issacharoff
Loewen
weigh the
See
266,
(Brennan, J.,
stein,
Thoughts
Summary
106
Second
About
at
S.Ct. 2505
U.S.
73,
Brown,
(1990);
100
85
Judgment,
v.
751 P.2d
Yale L.J.
dissenting); Moffatt
(Alaska 1988) (“
Mullenix,
939,
Summary Judgment: Taming
clear-and-
944
‘[T]he
Burdens,
10 Am. J. Trial
convincing
inevitably implicates
test
the Beast of
(“So
433,
(1987);
evidence,
replete
462
is
the
an exercise
the
weighing of
Anvoc.
jury.’”
contradictory pronounce
province
into the
of the
decision
intrudes
Stores,
can
the
Dairy
opposing
Inc. v. Sentinel ments that
counsel
(quoting
A.2d
Anderson’s dicta
Publishing
legitimately
104 N.J.
516
future
cite
(1986))).
always
propositions.”);
em
completely repugnant
Texas
236
law
weigh
A
phasized
Stempel,
that trial
must not
Distorted Mirror:
Su
courts
Shimmering
summary judgment
preme
at the
Court’s
View Sum
the evidence
of
Verdict,
Penn,
mary Judgment,
Tex.
and the
stage.
Gulbenkian v.
151
Directed
See
(1952);
Process,
Adjudication
3 Mc
49 Ohio St. L.J.
252 S.W.2d
931
(1988).
18.26,
§
at
Donald,
Texas
Civil Practice
eds.1992).
(Allen
Instead,
al.,
et
a trial
499
Furthermore,
elear-and-convincing
the
duty
summary judg
at
court’s
the
regard
provides
guidance
little
is to determine if a material
stage
ment
plain
for a
ing what evidence is sufficient
Gulbenkian,
of fact exists. See
question
judgment.
avoid
tiff to
constitutionally
at 931. Unless
252 S.W.2d
Anderson,
at
U.S.
mandated,
upset
we see no
to
reason
J.,
have
(Rehnquist,
dissenting). We
de
fact-find
traditional demarcation between
convincing
fined clear and
evidence as
by
trial courts to
judge
requiring
er and
“
degree
proof
or
which
‘that measure
summary judg
weigh the evidence
the
of the trier of fact
produce
will
the mind
stage.
firm
or
as to the truth
belief
conviction
majority in
are reminded that the
We
be
allegations sought
the
estab
”
did not
insisted that its standard
Anderson
G.M.,
re
lished.’
evidence at
require
weigh
trial courts to
Addington,
(Tex.1980)(quoting State
summary judgment stage. With all
(Tex.1979));
569, 570
see also Tex.
S.W.2d
Bren-
respect,
agree
we
with Justice
due
41.001(2).
§
Clearly,
Prac.
Rem.Code
Civ.
&
dissenting opinion
point:
on this
nan’s
Accordingly,
is vague.
this standard
we
[majority’s]
square
simply
I
cannot
require
except
been reluctant to
have
not himself
judge
direction that
“is
“extraordinary circumstances” when
those
weigh the
with the direction
evidence”
proof
mandated
consti
degree
judge
in mind the
also bear
Ellis
statutory requirements.
tutional or
proof
and consid-
“quantum”
required
Keever, 888
County State Bank v.
S.W.2d
is of sufficient
er whether
evidence
(Tex.1994)(clear
convincing
quantity”
“quan-
meet that
“caliber or
prosecu
required for malicious
proof not
that a de-
thought
I would have
tum.”
Cahill,
tion);
accord Rhodes v.
S.W.2d
quanti-
of the “caliber and
termination
(Tex.1990)(adverse posses
643, 645 n.
value,
i.e.,
of the
importance
ty,”
Harder,
sion);
Tex.
Sanders
i.e.,
fight
“quantum,”
(1950)(trespass
try
S.W.2d
only be
“required,”
amount
could
title).
summary judgment
cold
rec
On a
evidence.
performed weighing the
single
ord,
wit
having
without
observed
ness,
insight
forecast
Anderson,
it would take keen
U.S. at
J.,
probative
(Brennan,
origi
accurately
whether
dissenting)(emphasis
nal).
a “firm belief
produce
or would
agreed
have
would
commentators
Several
mind of
trier
conviction”
judges
trial
cannot determine
record,
distinction,
paper
in a
without
fact. The
quantity”
of evidence
“caliber
*10
merely
convincing
between evidence
will
raise a dence to be clear and
is best
fact issue and evidence that
clear
fully developed
will be
made after the facts are
at
subtle,
convincing
generally
and
if
jurisdictions
is
trial. That most other
have
subjective.
wholly
accepted
compel
Anderson should not
us
adopt
contrary
that is
to our
difficulty
Because of the
faced
jurisprudence
traditional
and difficult to
judge
tidal
in applying the clear-and-con
apply
practice.
Respondents
As
and
vincing
summary judg
standard at the
amici
presented
authority
have
no
stage,
Rehnquist predicted
Justice
it,
constitutionally require
would
we de
that Anderson would “cause the decisions
cline
adopt
clear-and-convineing
judges
summary judgment
of trial
mo
summary judgment stage
standard at the
in libel
tions
cases to be more erratic and
of a
defamation
public-figure
case. To the
Anderson,
inconsistent than before.”
suggest
extent
hold or
to the
272-73,
at
(Rehnquist,
U.S.
HBO
two
affidavits
defendant’s
affidavit,
provide
plausible
and
Virginia
from
In her first
statements’ truth
Cotts.
McLemore,
steps
in re-
basis
this belief. See
explained
Cotts
the
she took
for
574; Carr, 776
at 571.
searching
presented
the stories
in Women S.W.2d
S.W.2d
all
the
Trial.
that
film’s ac- As
four of HBO’s affidavits satisfied
To ensure
166a(c)
accurate,
requirements,
negated
Rule
count of the Hebert case was
she
HBO
(1)
matter of
transcript
reviewed
from March
actual malice as a
law.
(2)
hearing,
interviewed Sandra and
Thus,
Judge
the burden
shifted
(3)
attorneys,
all
her
viewed
three video-
present
to raise
Huckabee to
(4)
Hebert,
Wayne
of
arti-
tapes
reviewed
categories
fact issue. He offered six
press describing prob-
cles in the Houston
(1)
controverting
HBO
allegedly
evidence:
(5)
courts,
family
in the
and
read Dr.
lems
him in
alleged
and
desire
portray
JFP’s
Harrison’s
in the Hebert case.
deposition
(2)
unflattering light;
an
choices
editorial
all,
In
over two thousand
Cotts reviewed
impres
that left
false
by HBO and JFP
in connection with the
pages
documents
(3)
events;
sion of
filmmakers’ disre
review,
Texas cases. From this extensive
Dr. Harri
gard
Judge
Huckabee’s and
stated
believed that
Cotts
that she
Judge
Huckabee’s
explanations
son’s
depiction
film’s
of the Hebert case was
(4)
order;
alleged pur
and
JFP’s
HBO’s
and
she had no
re-
accurate
that
doubts
(5)
truth;
HBO’s
poseful avoidance
this account.
garding
film, the
review of the
legal
extensive
Cotts’s second affidavit detailed her rea-
rewrites, and
many
film’s
the indemnifica
doubting
sons for
Dr. Harrison’s conclu-
JFP;
tion
between HBO and
agreement
abuser,
Wayne’s
that
brother was the
sion
(6)
to air
and
decision
HBO’s
JFP’s
(1)
viewing
as
such
her own
the video-
it con
knowledge
the film
despite
tapes
Wayne
in which
identified his father
In
tained inaccurate statements.
deter
(2)
abuser;
improbability
as
presents a
mining whether the evidence
Wayne’s
theory
Harrison’s
older
issue,
facts favor
fact
we assume that all
him
injured
using
John
a fa-
brother
had
in
able
nonmovant
true and
to the
are
(3)
Wayne’s
toy;
fact that
initial
vorite
dulge
par
inferences
all reasonable
description of
was similar to stories
events
Van,
ty’s
Phan Son
990 S.W.2d
favor. See
about
from
that John had told Cotts
abuse
standard,
at 753.
under
lenient
Even
father;
(4)
his
Dr. Harrison’s own state-
Huckabee
we
persuaded
are
scholarly paper
in a
that children
genuine
issue of material
not raised
abuse;
disclosing
often recant after
sexual
categories.
fact on any of his
(5) the
had
Wayne
fact that
sustained
to portray
desire
HBO’s
but-
injury
a similar
once before. Cotts
light.
an unflattering
Huckabee
her
by attaching
tressed her conclusion
interview,
*12
571;
testimony
Wayne
that
and his broth-
nett’s
broadcast. See Carr 776 S.W.2d at
Casso,
fought
Wayne
after
returned
at
er John often
776 S.W.2d
Michael; (5)
testimony
from
Bennett’s
that
Likewise,
that
Nevins’s insistence
preferred
told her that she
that
Sandra
the filmmakers focus on divorce from the
rights
Michael not be allowed visitation
is
perspective
women’s
no evidence of ac
inquired
and had
about what was neces-
more,
tual malice. Without
mere evidence
(6)
them;
sary
Wayne’s
to terminate
pressure
produce
par
to
stories from a
grandmother’s testimony that Michael had
view,
point
ticular
even when they are
Wayne during
not bathed
their visit to her
sensationalistic,
hard-hitting no evi
is
evidence,
By
home.
to include this
failing
dence of actual malice. See Tavoulareas
Judge Huckabee claims that HBO inten-
Piro,
762,
(D.C.Cir.
v.
817 F.2d
tionally
presented
it look
he
made
like was
1987)(en banc); Perez v. Scripps-Howard
open-and-shut
against
with an
case
Mi-
Broadcasting
215,
St.3d
Ohio
Hebert,
chael
when
fact much of the
(1988)(both
198,
N.E.2d
holding that
justified
his order.
pressure
editorial
to produce sensationalis
Further,
complains
Huckabee
malice);
tic
not
stories is
evidence of actual
clarify
about the
to
film’s failure
two facts:
Communications,
see also Harte-Hanks
first, that
his statements
the interview
Connaughton,
657, 667,
Inc. v.
491 U.S.
in response
questions
with
came
Grant
105 L.Ed.2d
case;
second,
“hypothetical”
about a
(1989)(“Nor can the fact that the defen
modify
that Sandra did not move to
published
dant
the defamatory material in
temporary
years
order
the three
after
order
profits
increase its
suffice
appeals
petition
the court of
denied her
malice.”).
prove actual
Although evidence
of all
mandamus. Because
these omis-
that HBO directed Grant
to produce a
sions, Judge Huckabee
claims
story
sensational
regard
without
its
him falsely
judge
viewers saw
as a
who
truth would raise a
question,
fact
legal duty
flouted his
to render decisions
produced
Huckabee has not
any such evi
children;
the best interests of
Tex.
Tavoulareas,
dence. See
showing cy, and hence was of actual mal- purposefully that HBO avoided the truth would be some evidence of actual ice. Id. malice. at See U.S. presented not a Huckabee has Harte-Hanks, newspaper pub- 2678. In purposeful avoidance ease. Unlike Harte- story claiming lished a Daniel Con- Hanks, in newspaper its which based naughton, judge, for municipal candidate story testimony single on unrelia sisters, promised Thompson had Alice two source, ble here Stephens, jobs and Patsy vacations evidence reveals the filmmakers inter making allegations corruption return people viewed several both sides of the against judge’s ad- incumbent court story, including Judge Huckabee Dr. Id. ministrator. read, also They among Harrison. other story newspaper’s only source for this documents, transcript Hebert newspaper Thompson. Before hearing. pre research Such extensive story, pro- published Connaughton finding purposeful cludes avoidance. present duced five witnesses who were 1243; Levan, F.3d at Perk Connaugh- Thompson
when
claimed
Ass’n,
F.2d
411—
Digest
Reader’s
Stephens
gifts.
ton offered her and
(6th Cir.1991)(both distinguishing
Thompson’s story.
All the witnesses denied
ground
Harte-Hanks on the
that the sto
Connaughton
Id. at
cates we affirm the of the these The filmmakers reason- accounts. appeals. court concluded, therefore, ably could have custody routinely. such denials of occurred dissenting filed a Justice HECHT noted, Judge have Hucka- already As we opinion. allegation no evi- bee’s denial of experienced dence that the filmmakers did not in the participate Justice OWEN the film’s truth. substantial doubts about decision. not offer Because Huckabee did seri- other evidence that filmmakers HECHT, dissenting. Justice ously allegation, failed to doubted this he public figure cannot recover Since a fact actual malice.7 raise issue on damages for without clear and defamation
convincing the defendant malice,11 hold, like acted with actual would negated actual Because HBO’s affidavits and the law, Supreme the United States Court2 malice as a matter of and because states,3 he like- thirty-seven evi- courts of proffered none of Huckabee’s (1989) (citing proceedings L.Ed.2d York divorce often 105 562 New of sexual abuse in Sullivan, 254, 279-280, rule custody a result.... The courts U.S. lose as Times Co. v. 376 making 710, (1964)). real the mothers are the abusers for L.Ed.2d 686 undergo physical psycho- their children Sowers, Courts, logical Leslie evaluation.” Inc., Liberty Lobby, U.S. 2. v. Anderson Partners, Uneasy Investigators Make Hous. 255-56, 2505, 242, 91 L.Ed.2d 1990, 11, Nov. at 1G. Another article Chron., (1986). Burton, according reported Randy charges "presumed not abuse are sexual 924, (Ala. Camp Yeager, v. 601 So.2d Piller, Family Finan- true.” Pose Ruth Courts Inc., 1992); Newspapers, Read v. Phoenix Cases, cial Burden in Divorce Hous. Chron., 939, (1991); Southall Ariz. P.2d 25, 1991, Aug. went on to at 38A. article Inc., Newspapers, 332 Ark. v. Little Rock Munier, report that Marie the head (1998); Digest Reader’s family County Attorney's District crim- Harris Ass’n, Court, Superior Inc. v. 37 Cal.3d division, "spoken inal law stated she had Cal.Rptr. 690 P.2d attorneys who to several women said their Koltnow, Lobby); (predating Liberty DiLeo keep allegations of child advised them to (1980) (pre 200 Colo. 613 P.2d media abuse out of court.” Id. Several other Liberty dating Lobby); Jones Haven v. New consulted accounts which filmmakers Inc., Register, 2000 WL No. charges. made similar Jan.31, 2000); (Conn.Super.Ct. *8 United Further, Judge Hucka- it is not clear that Takecare, Fund, Inc., 693 Vanguard Inc. bee’s that he had denied moth- statement (Del.1997) (applying A.2d 1080 n. *17 actually ers access two cases rebuts in summary evidentiary burden at substantive charge who documentary's that mothers suit, stage judgment in breach contract routinely custody of claim child abuse lose relying Liberty Lobby); Cronleyv. Pensaco on Losing all one’s their children. access to 402, News-Journal, Inc., 561 405 So.2d la parent’s rights to a much children affects a Boatright, (Fla.Dist.Ct.App.1990); Gardner v. merely losing primary greater degree than 847, 755, (1995); Ga.App. 455 S.E.2d 848 216 (estab- custody. § See Tex. Fam.Code 153.192 Partnership, Liberty Newspapers v. Ltd. Jenkins conservator). lishing rights possessory of a 254, 1089, (1999); P.2d 1093 89 Hawai'i 971 Moreover, documentary’s claim that these Rankin, 566, 117 Idaho 790 P.2d Wiemer v. 347, routinely custody directed mothers lose (1990); Keystone Davis v. Print general County family at the courts Harris Serv., 309, Inc., Ill.App.3d Ill.Dec. ing 108 155 if the only Judge Even and not Huckabee. 1358, 17, (1987); v. 1367 Carr 507 N.E.2d Huckabee, had believed filmmakers Co., 901, (Iowa 904 Trust 546 N.W.2d Bankers may they still have believed that denials Co., 1996); v. & Elec. Knudsen Kansas Gas family-court custody routinely occurred in the 71, 469, (1991); War P.2d 248 Kan. 807 81 system. Co., 789 Lexington v. Herald-Leader ford Elder, 758, Communications, (Ky.1990); v. 771 Sassone S.W.2d v. Con Inc. 1.Harte-Hanks 2678, 345, (La.1993); 657, 659, Guy Tucci v. 626 So.2d 352 naughton, 491 U.S.
431 policy wise a with of con- cannot defeat motion for Rule 166a’s keeping judgment same without evidence of the of litigants the resources and serving quality mean quantity. This does not by a trial when a sparing courts them plaintiff prove that the in such a case must going show how is to raise party cannot he actual response malice in to the defen- by finder, an to be a fact issue determined summary judgment. dant’s motion for It public figure should be able to avoid means that once the defendant has summary judgment defamation suit summary judgment adduced evidence convincing without clear and evidence of malice, plain- it did actual not act with actual malice. tiff, in genuine order to raise a issue of material fact precluding summary judg- arguments answer to these Court’s ment, produce must some that if evidence applying evidentiary an is that elevated believed, regard and without defen- to the in summary judgment proceed- standard evidence, dant’s clearly would and convinc- ings too difficult for trial judges Texas ingly show that defendant did act to do. the federal and courts in Yet courts actual is not enough malice. It for the states in thirty-seven thirty-nine which some plaintiff produce merely evi- doing just has been are issue decided dence—more than would scintilla—as it that, managing. Only seem to be inbe other contexts. states, Alaska, two Texas and refuse to is, view, my This holding by dictated summary judgment by assess Rule 166a of the Texas Civil Rules of clear-and-convincing standard. I do not Procedure, requires which show- state trial why judges see Texas cannot ing genuine fact issue material federal trial judges do what Texas and defeat a for summary judgment motion judges state trial across America are do- that should otherwise be Evi- granted.4 ing. position I would abandon the dence at trial that is less than clear today Court maintains allow Alaska convincing does not raise an issue being the distinction of the last adherent decide, malice fact finder to and the thoroughly to a repudiated same rule Ameri- greater evidence should have no ef- fect in summary judgment proceedings. jurisprudence. can Co., 161, Publishing convincing” Gannett (applying 464 A.2d 166 "clear and standard to (Me. 1983) case, (predating Liberty summary-judgment Lobby); Chesa motion a fraud Williams,
peake Corp. Liberty Lobby); Publishing relying Scripps- v. on v. 339 Md. Perez 285, 1169, (1995); Co., 215, Broadcasting 661 A.2d 1178 Medi Howard 35 Ohio St.3d ELM Lab., 198, Gen., Inc., (1988); 202 v. cal Inc. 520 N.E.2d Herbert Okla- v. RKO Mass. 403 779, 675, Coalition, 322, (1989) (abrogated homa Christian 992 P.2d 328 532 N.E.2d Co., (Okla.2000); grounds, Ertel v. Patriot-News statute on other Truck see United 1038, (1996); Krueger 674 A.2d Pa. Leasing Corp. v. Geltman 406 Mass. Austad, (S.D.1996); Edwards, (1990)); 545 N.W.2d N.E.2d 20 Ireland v. Peterson, (1998); WL Stewart No. Mich.App. 584 N.W.2d Dec.7, 1988); Television, Inc., (Tenn.Ct.App. *5 Foley v. WCCO N.W.2d Resources, Myers, Andalex Inc. v. 871 P.2d (Minn.Ct.App.1989); v. Del Johnson (Utah (applying Ct.App.1994) Publishing ta-Democrat 531 So.2d convincing” summary- (Miss.1988); "clear and Lopez-Vizcaino v. Action case, Bonds, Inc., (Mo.Ct. relying motion in a fraud Bail *18 Lobby); Liberty Bennington App.1999) Palmer v. Sch. (applying convincing” “clear and 498, Dist., 31, (1992); Vt. 615 504 159 A.2d summary-judgment standard to in a motion case, Publishing v. Tribune Herron 108 punitive damages relying Liberty on Lob 249, 162, (1987); ); 736 255 Wash.2d P.2d by Brill v. Guardian Ins. Co. Amer Life of 765, ica, Lightner, 520, 146, (1995); v. 178 W.Va. 364 S.E.2d Crain 142 N.J. 666 A.2d 153 778, Oil, (1987); Johnston, 52, n. 1 Chem. & 782 Atomic Freeman v. 84 614 N.Y.2d Corp., 377, Int'l Union v. Sinclair Oil 748 (1994); Workers N.Y.S.2d N.E.2d 637 270 (Wyo.1987). P.2d Pittaway, Gaunt v. S.E.2d (N.C.Ct.App.1999); State v. Bank Kenmare of (N.D.1991) 166a(c), (i). Lindberg, 471 N.W.2d Civ. P. 4. Tex.R. application of this elear-and-convinc- analysis the same The Court’s extended of summary judg- ing in this to motions for summary judgment record case standard shows, by fig- think, produced public the plaintiff I that defamation suits ures.8 The Court explained: that acted some evidence the defendant contrary To the with actual malice. reach “convincing” clarity the re as Just conclusion, admitting without the Court is a mo quirement ruling relevant clear-and-convincing a standard applies verdict, it is tion for directed relevant which, I not met. Be- agree, plaintiff has judg summary a motion for ruling on standard, I the I cause would raise would if determining genuine a ment. When fair give plaintiff case to the a remand the malice factual issue as to actual exists and convinc- opportunity produce to clear public a a brought by figure, suit libel According- ing evidence of actual malice. actual must in mind the judge trial bear respectfully I dissent. ly, necessary of quantum quality proof and York liability under support [New I Sullivan, v. Times Co. U.S. Supreme The United States Court 279-280, 84 S.Ct. L.Ed.2d that Amendment held the First does genu there no example, For is ]. figure recover dam- permit public “[a] [to] fact precluding [of ine material issue defamatory for without ages pre falsehood judgment] if the evidence proof the convincing false clear is of opposing in the affidavits sented “actual was made with mal- ‘statement insufficient allow a quantity caliber or is, knowledge that it was ice”—that find mal finder fact to rational of of disregard false or with reckless whether by convincing ice clear and evidence. ”5 Moreover, it was false or not.’ the Su- Thus, sum- ruling on a motion for held, expo- as “|j]udges, Court has preme judge the mary judgment, the must view Constitution, must indepen- sitors of the through the presented prism in the dently decide whether the evidence evidentiary burden. substantive record sufficient cross constitu- na- by the This conclusion is mandated entry tional threshold bars ques- ture of determination. by judgment supported is not clear jury could reason- tion here is whether ”6 convincing proof of ‘actual malice.’ plaintiff proved ably find either that the Thus, judges apply the elevated evi- must quantity quality his ease for dentiary deciding motions governing law required by (including judgment a matter of law as jury or he did not. Whether for directed instructed verdict motions party, reasonably find for either could notwithstanding ver- however, except defined cannot be dict) these rules appeal. and on Because governing what evidence the criteria by the United States Consti- are entailed for either jury to find would enable tution, in state as they govern proceedings It makes or the defendant: plaintiff as courts.7 well federal say jury could reason- no sense Inc., without some ably party find either Liberty Lobby, Anderson govern as what standards Rule 56 benchmark held that Supreme Court bound- and within what requires its deliberations Federal Rules of Civil Procedure VI, ¶ Harte-Hanks, Const, 109 S.Ct. 7. U.S. 491 U.S. at art. Sullivan, (citing York Co. v. New Times 254, 279-280, U.S. Inc., Liberty Lobby, 477 U.S. 8. Anderson (1964)). L.Ed.2d 686 242, 255-256, 20 106 S.Ct. 91 L.Ed.2d (1986). Corp. v. Consumers Union United 6. Bose States, Inc., U.S. *19 (1984). 80 L.Ed.2d fall, aries its ultimate decision must and clear and convincing, though plain- even these standards and are in boundaries prevail tiff cannot at trial with such evi- provided by fact applicable eviden- dence.
tiary standards.9 application Because of the clear-and-con- II vineing proof standard of summary This first Court declined to follow Liber- judgment proceedings in public-figure def- Lobby ty years ago eleven in Casso v. amation required only by cases is federal Although Brand.14 language the relevant procedural rules and not the First rule, summary judgment the Texas Rule Amendment, state courts are to apply free 166a,15is identical to that of the federal a lesser standard in denying a defendant summary rule, 56,16 judgment Rule summary judgment, though they even federal rule had been construed to shift apply must the elevated in finally standard the burden of producing evidence to the awarding damages. But because the basic party responding to the if motion the mov- logic Liberty Lobby is sound—that a ant asserted that no evidence favorable to genuine issue of fact cannot be raised with- existed,17 respondent while the Texas out fact, evidence tending prove Thus, rule had not.18 plaintiff Texas a which for actual malice is evidence that is required was never to respond at all to a clear and convincing thirty-sev- —courts defendant’s motion for en states10 assess the sum- until conclusively the defendant estab- mary judgment proceedings by the same position. lished his application Because standard applicable at trial in libel cases or Liberty Lobby procedure rule to Texas other actions in which plaintiffs face an cases, impossible therefore in many elevated proof. standard of Nine states the Court declined to Liberty follow Lobby. issue,11 have not addressed the and the however, the Court added subsec- decisions in two others are inconclusive.12 (i) tion Only Court, align Rule 166a to proce- Texas the courts of one state, Alaska,13 now, other dure with procedure, federal stubbornly adhere as the rule acknowledges, that a Court public-figure plaintiff in a relevant dif- may defamation case defeat a ferences are all but defendant’s “obviated”.19 Conse- motion for summary judgment quently, with evi- the basis for the Court’s decision dence of actual malice that is less than no longer Casso exists. 254-255, Brown,
9. Id. at
(Alas
Again, experience in three-fourths motion jurisdictions, necessity American and the can see how the Court conclude clear-and-convincing-evi- applying failed more than produce Huckabee has dence standard contexts that do many defendant a scintilla evidence, permit weighing come as malice, thereby preclud- acted with conclusively possible close as establish- issue, summary judgment ing on that as *22 are com- ing that the Court’s concerns court the trial concluded. pletely simply unfounded. cannot One does not con- Conspicuously, the Court expe- in the face of maintain vast national clude that the defendants’ statements were contrary to the an applying rience because, think, I substantially true — evidentiary summary for elevated standard Rather, the Court does not believe that. then, does Why, is unworkable. concludes, even if of the defen- Court some in its persist apply the Court refusal to every not true and dants’ statements were for plaintiffs proof standard to motions indulged is Huckabee’s inference judgment? explana- two summary Only favor, there not a of evidence of is scintilla suggest tions is themselves. One I do actual malice. not find Hucka- simply judges Court does not trust trial convincing, clear but bee’s evidence apply the law. The other is that the Court un- assessment of the record Court’s it defen- appropriate put believes that is far ordinary proof an standard of der in defamation to the burden dants cases convincing. from expense though pub- of trial even lic-figure plaintiff cannot win. Neither can explanations justify
these the Court’s decision. the court of I remand the would case appeals respondent’s to consider the other
Ill arguments. they persuade, Should fail to rejecting evidentiary an After elevated the case to the that court should remand in this plaintiffs response for further proceedings. trial court defendants’ case to motion
judgment, the Court assesses evi- then
dence what can be an elevated explana- lengthy
standard. Not without a plain- can the Court that the
tion conclude actu- produce any
tiff failed evidence,
al malice. This this, this, or says,
Court and neither was this, this, certainly even not this. or CANTU, Appellant, John position, quite simply, is Judge Huckabee’s given conflicting evidence before conduct, his regarding parents’ him The STATE Texas. justified, the defen- decision was and since No. 1279-99. knew what that evidence was dants that it was acknowledged their affidavits of Texas. Appeals Court of Criminal disregarded cannot have important, think I do not without malice. May position Huckabee’s is clear and convincing, given the other sources several airing before
the defendants consulted every But inference
their if broadcast. Huckabee’s fa- indulged
must be to a
vor, respondent as with other notes the Harrison own from and HBO claiming JFP indicating ex- that she did believe his unfairly, him portray intended to as the planation even interview to Virginia Cotts’s points Huckabee first progress. case summary of the Hebert three-page to HBO Sheila describing are inter- him executives Because these affidavits from “corrupt witnesses, negate Nevins Cis Wilson as they will actual ested Septem judge.” points are He also Cotts’s malice as a of law if matter the dis “clear, direct, report regarding cred- ber 1991 status positive, and otherwise over Nevins agreement in- Grant and contradictions and between ible free from Neither consistencies, artistic direction. readily be] con- film’s and [able documents, however, 166a(c); indicates P. see these troverted.” Tex.R. Crv. memo Casso, original actual malice. While Cotts’s also at 558. In cases, ill-will toward might personal suggest malice affidavits must establish such Huckabee, father holidays, but that his nothing either of these the Christmas 1987; July private had touched his area suggests documents that Cotts or Grant Cheryl Ben- had Smith and social worker doubts about the truth of the