Ola M. Lewis (“plaintiff’) appeals from the trial court’s 19 July 2011 order denying her partial motion for summary judgment and granting Edward Lee Rapp’s (“defendant”) motion for summary judgment. After careful review, we affirm in part, and reverse and remand in part.
Background
In April 2010, plaintiff was the serving Senior Resident Judge of Judicial District 13B in North Carolina and was engaged in a campaign to retain her seat in the November 2010 election. She was also a vocal supporter of William Rabón who was running for the North Carolina State Senate. Defendant, a citizen of North Carolina, was a known supporter of Rabon’s opponent, Bettie Fennell. Defendant also volunteered to serve as Fennell’s “Media Strategist” without receiving compensation.
On 9 April 2010, defendant posted a blog entry on Facebook titled “Dirty Politics by the good ol boys.” The blog entry was also posted on Carolina Talk Network. In this post, defendant criticized Rabón and further stated: “When sitting judges campaign for a candidate, in clear violation of the seventh canon of the NC Code of Judicial conduct^] [w]e are clearly into dirty politics” (hereinafter referred to as “the 9 April publication”). That same day, plaintiff’s attorney emailed defendant and informed him that plaintiff was a candidate for office and that Canon 7B(2) of the Code of Judicial Conduct allows a candidate to endorse any other candidate seeking election to any office. Plaintiff’s attorney also cited a memorandum issued by Chief Judge John Martin on 26 February 2010 in which he reiterated to members of the judiciary what conduct was permissible and what conduct was prohibited by the Code of Judicial Conduct during the 2010 election cycle. The memorandum specifically cited to Canon 7B(2) and stated that a judge was permitted to endorse any candidate seeking office so long as the judge is also a judicial candidate.
I have spent this past weekend in prayer, mediation [sic], and contemplation. . . . First, let me apologize for my comment about the sitting judge being in violation [of] The North Carolina Code of Judicial Conduct. I was wrong. This can be done only by proper disciplinary proceedings and I have neither right nor authority to make that judgment and will let the proper authorities make that determination, if and when, it is brought before them. I have read, top to bottom, The North Carolina Code of Judicial Conduct and have voiced my opinion based on the pertinent articles provided in appendix 1 at the end of this blog. I also solicited the opinion of a friend of mine who happens to be an attorney. We both agreed that there is probable cause for such action. Read the appendix and make up your own mind. ... It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.
(hereinafter referred to as “the 12 April publication”) (Emphasis omitted). Defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry; however, he did not include Canon 7B(2).
On 14 April 2010, plaintiff filed a complaint alleging that defendant’s publications were libelous per se because the false accusations damaged plaintiff’s reputation as a judge. Plaintiff sought monetary damages as well as a temporary restraining order, a preliminary injunction, and a permanent injunction.
After discovery was complete, defendant moved for summary judgment on 3 February 2011. On 9 June 2011, plaintiff moved for partial summary judgment, asking the trial court to enter judgment “as a matter of law as to Defendant’s words constituting libel per se.” On 19 July 2011, the trial court denied plaintiff’s motion for partial summary judgment and granted defendant’s motion for summary judgment. Plaintiff timely appealed to this Court.
Discussion
Plaintiff argues on appeal that the trial court erred in denying her motion for partial summary judgment and granting defendant’s motion for summary judgment. “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ ”
In re Will of Jones,
“In order to recover for defamation, a plaintiff must allege that the defendant caused injury to the plaintiff by making false, defamatory statements of or concerning the plaintiff, which were published to a third person.”
Boyce & Isley, PLLC v. Cooper,
In North Carolina, the term defamation applies to the two distinct torts of libel and slander. Libel per se is “a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person’s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.”
Id.
at 29,
“[I]n order to be libelous per
se,
defamatory words
‘must be susceptible of but one meaning
and of such nature that the court can presume as a matter of law that
“In actions for defamation, the nature or status of the parties involved is a significant factor in determining the applicable legal standards.”
Proffitt v. Greensboro News & Record,
Where the plaintiff is a public official and the allegedly defamatory statement concerns his official conduct, he must prove that the statement was made with actual malice — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. The rule requiring public officials to prove actual malice is based on First Amendment principles and reflects the Court’s consideration of our national commitment to robust and wide-open debate of public issues.
It is important to acknowledge that “evidence of personal hostility does not constitute evidence of ‘actual malice’ ”
Id.
at 704,
A. 9 April Publication
We will first address the 9 April publication, which plaintiff contends was libelous per se and disseminated with actual malice. Defendant admits that this publication contained the false statement that plaintiff was in violation of the Code of Judicial Conduct, but defendant argues that plaintiff cannot forecast any evidence that defendant acted with actual malice, an essential element of her claim. We agree with defendant.
Defendant claims that he did not have actual knowledge at the time of the publication that plaintiff was a candidate for office and therefore permitted by the Code of Judicial Conduct to endorse another candidate running for office. Defendant claims that he believed the statement he made to be true when he made it. There is no evidence to show otherwise. Defendant was consistent in his deposition, stating that he did not know that plaintiff was a candidate for office when he wrote the 9 April publication. Plaintiff claims that defendant should have known that she was running for reelection because she was recognized, along with the other candidates, at the Brunswick County Republican Party executive committee meeting on 8 April 2010. Defendant was in attendance at that meeting. While plaintiff is correct in stating that the information was made public and perhaps defendant should have known that she was a candidate, plaintiff has failed to show actual knowledge. Consequently, we are left with only defendant’s assertions in his depositions that he did not, in fact, have actual knowledge of plaintiff’s candidacy.
Plaintiff has also failed to show that defendant acted with reckless disregard of the truth. Again, defendant consistently stated that he was unaware that plaintiff was running for office. Undoubtedly, defendant could have conducted some research before
In sum, it is undisputed that defendant made false statements about plaintiff in the 9 April publication. However, plaintiff has failed to forecast any evidence that defendant acted with actual knowledge or reckless disregard with “convincing clarity.”
Varner,
B. 12 April Publication
Next, we address the 12 April publication, which plaintiff contends was also libelous per se. Plaintiff claims that defendant was still accusing her of being in violation of the Code of Judicial Conduct, as he did in the 9 April publication. Defendant argues that he did not affirm the false statement that was present in the 9 April publication; rather, he informed his readers that he incorrectly stated that plaintiff was in violation of the Code of Judicial Conduct in his 9 April publication and he was merely asserting his opinion that “probable cause” existed for the “proper authorities” to take disciplinary action against plaintiff.
The pivotal question then is whether defendant’s statement was a constitutionally protected opinion. “Whether a statement constitutes fact or opinion is a question of law for the trial court to decide. Like all questions of law, it is subject to
de novo
review on appeal.”
Potomac Valve & Fitting Inc. v. Crawford Fitting Co.,
Even “where a statement of ‘opinion’ on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials,” the public figure must still establish the existence of actual malice.
Milkovich,
Next, we will determine whether the accusation was a constitutionally protected opinion. It is undisputed that defendant’s statement in the 12 April publication constituted political speech regarding a public election. Plaintiff strictly contends that defendant’s statement contained provable false connotations and did not, therefore, constitute an opinion. We hold that defendant’s 12 April publication contained provable false connotations and was not defendant’s subjective opinion.
Although defendant expressly stated that it was his opinion that plaintiff had violated the Code of Judicial Conduct, an individual “cannot preface an otherwise defamatory statement with ‘in my opinion’ and claim immunity from liability!.]”
Daniels,
Moreover, defendant included portions of the Code of Judicial Conduct in the appendix to his blog entry so that his readers could “make up [their] own mind[s]”; however, he did not include Canon 7B(2), which exonerates plaintiff of any wrongdoing. Defendant did, however, include Canon 7B(1), which, if read in isolation, would indicate that a judge may not endorse a political candidate. The inclusion of Canon 7B(1), coupled with the exclusion of Canon 7B(2), can only be perceived as a deliberate attempt by defendant to substantiate the false accusation contained in the publication. “Even if the speaker states the facts upon which he bases
Not only did defendant attempt to mislead the readers by failing to attach Canon 7B(2), he also stated that he had discussed the matter with his friend, an attorney, and they agreed that there was “probable cause” for disciplinary action to be taken by the proper authorities. Defendant was clearly trying to bolster the validity of his false accusation by asserting that someone with expertise in the field of law concurred with his assessment.
See Action Repair, Inc. v. American Broadcasting Cos., Inc.,
In sum, defendant’s 12 April publication was framed as an opinion; however, it presented the same false accusations that were contained in the 9 April publication. Defendant attempted to convince the readers of the publication that plaintiff was in violation of the Code of Judicial Conduct by claiming that he had read the Code of Judicial Conduct from “top to bottom”; supplying only the portion of the Code of Judicial Conduct that would support his accusation; and claiming that an attorney agreed with his assessment. We hold that plaintiff’s accusation in the 12 April publication was subject to one interpretation; that the accusation was defamatory; and that the accusation was not a constitutionally protected opinion. It was, therefore, defamation per se as a matter of law.
Still, plaintiff must show that defendant acted with actual malice. “[T]hat is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
Varner,
Conclusion
Based on the foregoing, we hold that the trial court did not err in granting defendant’s motion for summary judgment and denying plaintiff’s motion for partial summary judgment with regard to the 9 April publication. We hold that the trial court erred in denying plaintiff’s motion for partial summary judgment and granting defendant’s motion for summary judgment with regard to the 12 April publication. We reverse and remand for entry of partial summary judgment for plaintiff because the 12 April publication constituted
Affirmed in part; reversed and remanded in part.
Notes
. We note that defendant did express an opinion when he stated: “It is my belief that for any Republican office holder to campaign openly for any candidate in a primary is wrong. Office holders cannot appear to be private citizens. The power and authority of their office precludes this.” This statement, unlike the accusation that plaintiff was in violation of the Code of Judicial Conduct, cannot be proven true or false. Defendant is entitled to his opinion that it is “wrong,” or even unethical, for an office holder to campaign for a candidate. An opinion that a judge has acted unethically is quite different from an accusation that a judge has committed an act that could potentially lead to official disciplinary action.