*1 drawn, Whether such an inference however, is to be should jury. left to the limiting right definition of wrong legal sense the court imposed jury mandatory insane, inference that the defendant was not thereby directing a verdict.
I would remand new trial.6
Reconsideration denied October 1980. granted by Supreme Review February Court September 7564-1-I. Division One. [No. 1980.] Broadcasting Appellant, v. Mark, Albert M. Company, Respondent. 6I would frame the instruction in words of WPIC 20.01 without further right wrong. definition of The drafters WPIC must have been aware jury issue here discussed and concluded that without further elucidation the position realistically question inbe better to determine the a defendant's sanity. *2 pro Mark,
Albert se. Riddell, Ivie, Williams, Bullitt & and Ste- Walkinshaw respondent. DeForest, E. for ven pharmacist, Mark, a licensed Albert M. Callow, C.J. privacy brought action for defamation invasion Broadcasting Company, against defendant, KING arising on the defendant's out news stories broadcast appeals from on Mark station three occasions. television summary entry judgment favor trial court's Broadcasting. evening regular 30, 1976, KING'S On December reported program that: charged pharmacist been with
A West Seattle has cheating The $200,000 in funds. out of Medicaid the State says largest County King is the office it Prosecutor's Mark, Albert filed this state. Medicaid fraud case ever drug who owns two Seattle, stores West is charged filing with a claim that used doctors' names who never drugs ordered and patients' names who never the drugs. received Albert Mark will be arraigned next week.
On day, following 31, 1976, December a KING news program reported that: A pharmacist West Seattle charged has been with defrauding the State drug false prescrip- Mark,
tions. Albert who owns this pharmacy at 5435 S.W., California Avenue charged grand larceny, tampering with evidence ten forgery. counts of Anderson, Gene County names of doctors and head of the Fraud Division the King office, says
Prosecutor's Mark filed claims using patients Medicaid, eligible for but patients those doctors and never pre- wrote received scriptions. arraigned Mark will be on 5th. Finally, January 7, 1977, a KING news program again reported that:
A pharmacist West Seattle has pleaded guilty to a *3 charge $200,000 he cheated the out of in State Medicaid payments. . . . M.
Albert Mark is the owner of in drugstores two West County The says Seattle. past Prosecutor's office over the years $200,000 two Mark has out made over worth of prescriptions false for patients. Medicaid The bills for prescriptions those were submitted to the State's Medic- aid office. State auditors found out doctors never ordered prescriptions the and patients their never got them. appeared today. Mark in court pled guilty He grand larceny, tampering physical with and evidence ten forgery. counts of 7, 1977, conjunction January with the report, KING by
aired a film clip taken its from cameraman the exterior of pharmacy. footage Mark's The included of shots pharmacy exterior of the of and the interior as seen through front window. The view of the interior included view of a an individual with telephone a wall-mounted ear. 30, 1976,
On morning of December an information by King prosecutor's was filed in County King office grand larceny, with charging Mark Superior Court County evidence. physical forgery, tampering and counts of the information larceny charge, grand Regarding State of "checks Mark defrauded the alleged that $75,” that Mark of money of value excess a amounts, number voluminous the exact nsubmitt[ed] had unknown, forms" and forged prescription and false Department, from money sums "collected substantial unknown, payment on the the form the total amount prescriptions." false and fraudulent aforesaid cause, which was a matter probable An affidavit by prosecuting signed deputy the chief public record and follows: attorney, provided part relevant Social Department collected The instances pursuant search investigators Health Services through subsequent inspection records warrant and coupled follow-up premises on Mark's maintained false claims recipients of doctors and reflects interviews substantially in of $75. excess payments Further, begun was on or about regard an audit time, of Medicaid sampling 1976. At that a October department were billed Mark to prescriptions kept but at subpoenaed inspection from records for taken from premises. sample period prescrip- total number of August 1974 to 1976. The for including private patient both Medicaid and tions this scriptions verified 135,760. Only pre- Medicaid period numbered about sample being picked were and the taken after figure invalid or over resulted 63% years. for This first audit was billing fraud 2/3 November, A second by about the end of 1976. completed (300) was verify larger sample with a audit first results planned begin December through to Mark were communicated first audit using larger sam- attorney the need verification ple stressed. *4 prob- and affidavit undisputed
It is that the information KING'S news basis for provided the factual able cause reports. King County in guilty Mark was found June forgery. larceny counts five
Superior
grand
Court
The State's evidence established invalid Medicaid claims
$2,500.
totaling approximately
5-year
Mark received a
1-year
deferred sentence and
county jail
a
term with work
release. Mark was also
in
pay
ordered to
full restitution
an
amount
at
be determined
a
date.
later
Mark's conviction
Mark,
in
opinion. State
unpublished
was affirmed
an
Wn.
Petition
granted
for review was
on
v. Mark,
State
January
Based the December 30 and 31 news and the January 7 clip, film Mark an brought for action defamation of privacy against invasion in KING complaint alleged November 1978. His first knew, cause of action that in "the defendant or the exercise care, known, reasonable should plaintiff have that was $200,000 charged not but only Medicaid fraud amount excess of . . and as such . this $75 was the largest Medicaid fraud case ever filed the state." The complaint alleged knew, the "defendant or in the care, known, exercise of reasonable should have its statements would create false impression the minds of guilty viewers that of a Medicaid fraud." alleged Mark as a second cause of action that film clip aired conjunction with the news "an report, was plaintiff's right invasion privacy and trespass constituted a plain- intrusion into placed tiff's solitude plaintiff in a light false [and which] public eye." granted The trial court defendant KING'S motion summary judgment. plaintiff appeals, asserting summary judgment inappropriate upon the evidence before trial court.
The Defamation Action A qualified conditional privilege permitting exists newspapers to publish, report, and television and radio legal provided publication is a fair
349
and is made without
statement
of
contents
accurate
107,
Publishing
v. Tribune
App.
7
malice. O'Brien
Wn.
denied,
906,
L. Ed. 2d
cert.
(1972),
24
411 U.S.
P.2d
36
499
Franich,
v.
O'Brien
(1973);
App.
Wn.
196,
Ct.
19
93 S.
1531
(1978).
189,
plead
to
privilege
attaches
An
is a
affidavit
information
(1899); Brady
v.
Cronin,
v.
512,
P.
State
26
20 Wash.
56
Yount,
697,
42 Wn.2d
The news media
public
and the
strong
have a
interest
reporting
information
official court documents
part
which form
legal
proceedings and which are filed as
matters of
record.
In Cox Broadcasting
Corp.
Cohn,
469, 491-92,
U.S.
L.
Ed. 2d
[I]n limited *6 time and resources with which to observe at first hand operations the upon of his government, necessarily he relies press
the him bring to in convenient form the facts of those operations. Great responsibility is accord- ingly placed upon the news media to report fully and accurately the proceedings government, and official records and open documents public the are the basic governmental data of operations. Without the informa- provided tion press the most many of us and of our representatives would be unable to intelligently vote or to register opinions on the government administration generally. With respect judicial partic- ular, the function of press the serves to guarantee the fairness of trials and to bring to bear the beneficial public effects of scrutiny upon the administration justice. . . .
. . . crime, The commission of prosecutions resulting it, from and judicial proceedings from arising prose- the . . . cutions are without question events of legitimate concern to the consequently and fall within the responsibility press of the report operations the government.
An
cause,
information or an
probable
affidavit of
once filed
record,
as a matter of public
per
reflects an official act
formed
legal
course of
proceedings so that a recount
ing of contents
the record is qualifiedly privileged.
See Stone v.
News,
Hutchinson Daily
P.
125 Kan.
It position exhibits, is Mark's that the pleadings, depositions before the judge questions trial raise of fact as summary judgment that privilege of the such
to the abuse
find no
granted.
been
We
abuse.
should
have
were a sub-
reports broadcast
The three news
of the information
stantially
recounting
verbatim
They conveyed a substan-
probable cause.
filed affidavit of
The broad-
legal
correct
documents.
tially
account
allegations
neither
nor
espoused
casts
embellished
documents,
their
merely reported
in the
exis-
made
but
At no
indicate a belief
tence.
time did the
express
opinion
as to whether the
charges
truth of
an
agree
had
We do not
offenses
been committed.
followed
that
the criminal
information
contention
because
i.e.,
statutory
larceny,
property of
definition of grand
$75,
than
the use of the
the value
more
grava-
report
rendered the
unfair or inaccurate.
figure
men of Mark's defamation claim is
assertion
statements
the information and affidavits were untrue.
qualified
find a
that a
privilege,2 holding
We
seeking
qualified privilege given
to overcome
publish
false and
allegedly
media
broadcast
defamatory
report of the
official
fact
substance
charges
plead
prove
criminal
must
its truth.
grounds
broadcast without reasonable
belief
*7
956,
Trading
Cudahy
P.2d
Corp.,
Co. v.
92 Wn.2d
603
Gem
Inc.,
(1979);
Wilson,
v.
&
Wn.2d
Twelker
Shannon
88
828
v.
473,
Trading
Cudahy
P.2d
In Gem
Co.
564
1131
supra,
pages
we find at
961-62:
Corp.,
(Second)
(1977)
immunity
grants
news media
2Restatement
of Torts
611
§
fairly
accurately reporting
public
matters
from defamation actions for
and
interest, i.e.,
charges, stating:
reporting criminal
Meeting
Report
Proceeding
or Public
of Official
§
defamatory
concerning
report
publication
in a
of an
another
The
matter
meeting open
public
proceeding
to
that deals
action or
or of a
official
complete
privileged
and
is
if the
is accurate
a matter of
concern
abridgement
reported.
or a fair
of the occurrence
(2d
Inc.,
Cir.),
Soc'y,
Compare
The plaintiff burden to prove is abuse of privi- summary lege. Although judgment at all facts will considered most to light favorable the opposing will party, facts which fulfill if that burden uncontro- by verted must plaintiff. falsity be asserted Proof of alone, by even if accepted jury, cannot overcome privilege require this case so as to plaintiff's] [the claim for defamation be jury. submitted to the To over- a finding by come defamatory the trial court that an allegedly is qualifiedly privileged
statement and to summary judgment thus avoid ground, on that it nec- is essary for to plead prove affidavit otherwise published the statement was fair without impartial investigation or without reasonable grounds for in its truth. belief record any
The here is without evidence inference that the three news were reports broadcast without reasonable grounds for truth belief content. quali their circumstances, fied privilege was not overcome. Under not obligation the television station was under an inde pendently investigate validity of criminal charges made prosecutor in official court prior documents broadcasting a fair and accurate account them. an Such obligation impediment constitute serious to the guaranteed by dissemination news information First Fourteenth Amendments. Tilton v. Cowles See Publishing Co., 707, 723, (1969), 76 Wn.2d P.2d 8 cert. 459 denied, 792, 927, L. 399 U.S. 26 Ed. 90 Ct. 2238 2d S. 645, Mellor v. Scott 10 Publishing Wn. (1974). Indeed, P.2d New York as observed Sullivan, Co. Times 376 U.S. 11 L. Ed. 2d S. (1964), Ct. A.L.R.2d error is factual inevitable in the of the news reporting limiting constitutional protection only unduly true statements would inhibit only reporting that which was and safe. certain only portion three directly taken from court documents statement which is the investigator prosecutor's attributed office and Department with the Social and Health Services that
353
fraud ever uncovered
Medicaid
largest
is the
"the case
this statement
dispute
does not
Mark
the state."
agency
office and
prosecutor's
in fact made
attri
whether statements
We need not decide
investigator.3
may
the basis for a
investigators
buted to
state
since here the
qualified privilege
covered
already of
merely
the material
reiterated
ments made
be free to
news media must
proceedings.
The
record
Cox
records.
contained
official court
information
publish
Cohn, supra.
v.
Broadcasting Corp.
pleadings,
The
exhibits
identify
larger Med
trial
no
judge
affidavits before the
nor
pleadings
in this
Neither Mark's
icaid
cases
state.
fraud
Medicaid
appeal
on
claim that
argument
not
such fraud uncovered
largest
be the
fraud
claim is his
The basis of
defamation
Washington.
Mark's
large
he did not
such a
Medicaid
commit
assertion
However,
rely
alle
may
upon
not
the bare
fraud.
falsity
upon speculation
in his
gation
pleadings
v. Associated
Brueggemeyer
trial. See
carry
the issue to
Kieren,
Press,
(5th
1980); Lundgren v.
64
F.2d 825
Cir.
609
Kvamme,
(1964); Almy v.
672,
P.2d 625
63
Wn.2d
393
v.
Central Neon
Dwinell's
326,
(1963);
P.2d 372
Wn.2d
387
Hotel, 21
929,
Cosmopolitan
Chinook
587 P.2d
App.
Wn.
(1978).
reasonably
relying upon
acted
191
defendant
documents which were matters
the contents
summary
of dismissal of
entry
judgment
of a
record.
action
appropriate.
the defamation
including
police
roughly
preliminary
divided between
3The authorities
are
records,
including reports
police
on
reports
judicial
based
records
Chicago
v.
Am.
investigators'
qualified privilege.
Gawel
within the
statements
Co.,
481,
(1971);
Publishing
v. Beacon News
Stice
App.
Ill.
274 N.E.2d
1
3d
628
(1959);
61,
paper Corp.,
Moritz v. Kansas
396,
Kan.
340 P.2d
P.2d 817 Mark alleges that film clip by aired in con- junction with its report in resulted unreasonable intrusion into his seclusion physical soli- tude. The contents of film and the circumstances under which it was shot sufficiently are established the uncon- portion troverted parties' affidavits. We must review the material submitted for against the motion for sum- mary judgment light most favorable the nonmov- ant. The film was shot a KING cameraman from the pharmacy. exterior of Mark's footage included shots the exterior and interior as seen through the front window pharmacy while the was closed. The view of the interior included a view of an individual talking telephone. on the KING'S affidavit states that the total film length seconds, approximately the interior view of the pharmacy approximately length, seconds and that the facial features of the individual within were not distin- guishable. The news contained sequence a later film footage attorney county Mark and his court- house. Mark's version of the forth in filming, set his affida- vit, is as follows: my 31, 1976, my I wife and were
On December by to . . who had come visiting . friend pharmacy We evening. was closed and locked. see The store us It phone rang. when the talking drinking coffee were was one calling that a camera my children to tell me I was asking for me. While been at our home crew had still on the husky man with a shoulder-mounted phone, store, driveway planted up came area camera his lights window, powerful against the front turned camera so lights us. were photograph and started I camera, to. bright I could not face the and did want window block out my go told friend to to the did, view, just which camera's he but cameraman pictures kept shooting; taking aside and after moved the got he sign, and our outside store building outside car and left. *10 . trespassed . . onto The cameraman over feet driveway up He to walk an inclined property. leased for tenant had step walkway, place parking, step up one a window, front focus and then against his camera begin to photograph. filming accomplished
Unlike Mark's that was assertion private onto KING'S that entry property, affidavit states event, In any was done on sidewalk. filming a the film was dispute consequence this factual is of no since of from building place shot from the exterior a public. open to the liability privacy intrusion
Tort invasion (Second) set Restatement upon seclusion is forth (1977): Torts 652B § intrudes, physically or other- intentionally who
One
pri-
wise,
of another
upon the solitude or seclusion
concerns,
other
subject
liability
vate affairs
is
be
privacy,
if
for invasion of his
the intrusion
to a
highly
person.
offensive
reasonable
if the
only
privacy
This
of invasion of
is actionable
form
one
is
plaintiff's
seclusion
a substantial
interference
a
highly
from
kind that would be
resulting
conduct of a
ordinary
person.
objectionable
offensive
(Second)
d,
Restatement
652B,
Torts
comment
at 380
§
The invasion or intrusion must
of something
which
general public
Here,
would not be
view.
free to
it is not
film
contended that
anything
recorded
other than that
which any passerby would
passing
have seen
building,
plaintiff
nor was the
portrayed
an unreasonable manner.
filming
accomplished
subterfuge.
without
ruse or
There
no
reason to believe that
person
ordinary
a
sen-
alone. Dietemann v.
sibilities would be offended
film
by the
Time, Inc.,
(9th
1971).
Summary judgment properly pri- granted as vacy cause of action.
Andersen, J., concurs.
Swanson, (concurring part)—I J. part; dissenting concur in affirming dismissal of the defamation action but resolution of question privacy believe the critical cause of alleged action—whether interference from con- plaintiff's resulting seclusion is a substantial one duct highly per- that would be offensive to a reasonable I son—is an issue for the trier of fact. therefore affirming privacy dissent from action. dismissal Reconsideration denied November 1980. Court granted Supreme
Review