Jerry McCUTCHEON, Appellant, v. STATE of Alaska, Appellee.
No. S-1528.
Supreme Court of Alaska.
Nov. 13, 1987.
746 P.2d 461
Larry R. Weeks, William E. Olmstead, Larry R. Weeks Law Offices, Juneau, for appellee.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
RABINOWITZ, Chief Justice.
The principal question involved in this appeal is when the statute of limitations began to run for a libel action predicated upon allegedly defamatory affidavits filed pursuant to the dismissal of a criminal prosecution against plaintiff Jerry McCutcheon. Defendant State of Alaska contends that the applicable two-year limitations period expired prior to the filing of McCutcheon‘s complaint, and further that it is immune from the instant suit under the express statutory exception to the waiver of sovereign immunity for libel actions.1 McCutcheon claims that he brought suit within the time permitted by the statute of limitations and also that the superior court erred in refusing to allow the addition of Acting District Attorney Richard Svobodny as a party defendant.
Because we hold that McCutcheon‘s cause of action for libel accrued more than two years before he brought this suit, we affirm the superior court‘s grant of summary judgment in favor of the state. This holding is also dispositive of McCutcheon‘s specification of error with respect to the court‘s denial of his motion to join the acting district attorney as a party defendant.
I. BACKGROUND.
In 1982, plaintiff Jerry McCutcheon was charged with first and third degree assault as a result of an altercation with his landlords, Bette and Winfred Hamm. On July 26, 1983, Acting District Attorney Richard Svobodny dismissed the criminal prosecution against McCutcheon due to the unavailability of the Hamms as witnesses. Affidavits attached to the dismissal that explained the reasons underlying it were also filed with the court (in conformity with the usual practice of the district attorney‘s office) on July 26. The dismissal and affidavits, and a press release under Svobodny‘s signature, were issued to the press that same day. The contents of one of the affidavits comprise the subject of the instant defamation action.2
On July 29, an article in the Juneau Empire evening newspaper reported the dismissal of McCutcheon‘s case and quoted the key parts of the subject affidavits. On August 2, the dismissal was amended to describe more precisely the charges being dismissed; the amended dismissal was filed with the court on August 4, unaccompanied by any affidavits. No affidavits were released or re-released to the press at this point.
McCutcheon filed this defamation action on July 31, 1985. The state subsequently moved for dismissal or, in the alternative, for summary judgment, on the grounds that the action was barred by the applicable two-year statute of limitations,
McCutcheon opposed the state‘s motion and, in the alternative, moved to amend his complaint to add Svobodny individually as a defendant. He argued that the statute of limitations does not bar his claims because the defamatory material was “published” twice, on August 2, 1983, by virtue of the issuance of the press release, and on August 11, when a second press release was issued5 following the amendment of the dismissal. That is, he contended that publication of the July 26 press release did not occur until August 2, based on a handwritten notation by the court clerk on the July 26 dismissal, “cc[:] Jail & Newspaper 8/2/83.” Based on a similar notation made on the August 2 amended dismissal, “cc[:] Jail & Newspaper 8/11/83,” he argued that the second publication occurred on August 11. Significantly, the clerk in her affidavit averred, “It was not our policy and I am sure that I did not send either the Affidavits or the press release to the jail or to the newspaper when sending a copy of dismissal.”
Treating the state‘s motion as one for summary judgment, the superior court held that the two-year statute of limitations began to run on July 26, 1983, thus barring the action. The court indicated its view that the “discovery rule” did not apply, and that the date of publication of the defamatory material was the critical date (and the date of actual dismissal of the charges against McCutcheon, irrelevant) with respect to commencing the limitations period for a defamation action.
The court proceeded to address the other arguments raised by the parties, concluding that
The court entered written findings of fact and conclusions of law confirming the above-described oral rulings. McCutcheon filed a timely appeal.
II. DISCUSSION.
A. Time of Commencement of Statute of Limitations.
1. When Did Publication of the Allegedly Defamatory Statements Occur for Purposes of Commencing the Statute of Limitations?
McCutcheon‘s defamation action is governed by the two-year tort statute of limita-
“Publication” of defamatory matter generally imports its communication to someone other than the person defamed. Id. See also Prosser and Keeton § 113, at 797; Restatement (Second) of Torts § 577 & comment b (1977) [hereinafter Restatement 2d]. McCutcheon contends that the statements defaming him were “published” on two occasions, August 2 and August 11, the dates on which the court clerk apparently sent copies of the orders of dismissal of the charges against him to the Juneau newspaper.8 He argues that each of these publications gives rise to a separate cause of action; that his defamation claims are timely as to the August 11 publication; and that his claims are also timely with respect to the July 26 or August 2 publication because the August 11 publication was an “amendment” which “consummated” the earlier defamation, and because the defamation itself was incomplete until the actual dismissal of the criminal charges.
McCutcheon‘s arguments are both factually and legally unsound. First, McCutcheon has presented no affidavits or other materials in opposing the state‘s dismissal motion that controvert Svobodny‘s averment that the affidavit containing the allegedly defamatory statements was filed with the court and released to the press on July 26, 1983. Nor does he point to any evidence that the July 26 press release referring to and summarizing the allegedly defamatory affidavit was pre-dated and actually released at some later time. Thus, it appears on this record that the July 26 issuance of the affidavit and press release constitutes publication of the alleged defamation.9 Giving McCutcheon the benefit of all reasonable inferences on this point, publication of the allegedly defamatory statements by the state occurred at the latest on July 29, 1983, the date of the newspaper article reporting them. Thus, the statute of limitations still expired prior to the filing of McCutcheon‘s action on July 31, 1985.
McCutcheon‘s contention that his claims are not time barred because the alleged subsequent publications give rise to a separate and distinct cause of action, thus recommencing the running of the statute of limitations, in essence asks this court to recognize and apply the “multiple publication” rule. This traditional common law rule is that each communication of the same defamatory matter constitutes a separate publication for which a distinct cause of action arises. See, e.g., Lewis v. Reader‘s Digest Ass‘n, 162 Mont. 401, 512 P.2d 702, 704-05 (1973); Prosser and Keeton § 113, at 799; Restatement 2d § 577A(1) & comment a. Most courts, however, in part to prevent effective circumvention of applicable limitations periods, have abandoned this rule in favor of a “single publication” rule, which treats any integrated publication, such as one edition of a book or issue of a magazine, one radio or television broadcast, or any similar aggregate com-
Application of either the single publication rule or the multiple publication rule to the facts of this case would cause the statute of limitations to begin to run on July 26, 1983. Under the single publication rule, we would consider the purported re-issuance of the subject affidavits and press release part of the same publication,10 and the limitations period would thus have expired prior to the filing of McCutcheon‘s complaint as a matter of law. Under the multiple publication rule, the statute of limitations would still bar the action because the record contains no evidence apart from McCutcheon‘s bald assertion that the affidavit and press release were “published” at any time other than on July 26, 1983. Svobodny‘s affidavit indicates that the amended dismissal was filed with the court unaccompanied by the affidavits tendered with the original dismissal, and that no press release was issued with the August 11 amended dismissal. In support of his contrary position, McCutcheon seems to rely wholly on the “cc[:] Jail & Newspaper” notation made by the court clerk on the dismissal itself; although the court expressly gave McCutcheon an opportunity to respond to Svobodny‘s affidavit, McCutcheon‘s reply affidavit did not contradict Svobodny on this point, and the clerk‘s notation makes no reference to any press release or affidavit. As previously noted, she stated in her affidavit that she did not send a copy of the subject affidavit or press release to the newspaper along with the dismissal, and the record contains no affidavit or other document issued with the amended dismissal. On this set of facts, no reasonable inference can be drawn in McCutcheon‘s favor that a subsequent publication of the defamation occurred after July 26.
We also reject McCutcheon‘s argument that the statute of limitations had not expired prior to the filing of his action because the purported August 11 publication was an “amendment” to the first which “consummated” the earlier defamation. McCutcheon cites no authority for this amendment/consummation theory, but other jurisdictions have rejected somewhat analogous “relation back” or “continuing course of conduct” arguments. For example, the plaintiff in Spears Free Clinic & Hospital v. Maier, 128 Colo. 263, 261 P.2d 489 (1953) (en banc), argued that libelous statements written by the defendant doctor on a death certificate kept on public file in the state office of vital statistics “have been continually and continuously published from and since the said date [of their writing] and are now being so published.” Id. 261 P.2d at 490-91. The court responded:
Such is not the law. The fact that many people read a libel is evidence as to the extent of damage therefrom, but does
not in itself establish publication as to each reader. So to urge is to confuse the result of libel with the act of libel.... Plaintiff‘s novel “theory of continuous publication” as here argued would apply equally to any published or written statement continuing of record or in the hands of others, and to hold that the possibility or likelihood of its being read from time to time by other people would constitute “continuing publication” would effectively nullify the statute of limitations.
McCutcheon‘s claim that the tort against him was incomplete until the actual dismissal of the charges against him is similarly untenable. The California Court of Appeal in Rutherford v. Johnson, 250 Cal. App. 2d 316, 58 Cal. Rptr. 546, 548 n. 1 (1967), specifically disavowed the view that publication of affidavits did not occur until termination of the action in which they were filed and that the wrong depended on who ultimately prevailed therein. See also Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 347 (1943) (“Since the gravamen of the offense is the degrading of reputation, the right accrued as soon as the paper was exhibited to third persons in whom alone such repute is resident. The tort is then complete even though the damage may continue or even accumulate.” (Citation omitted and emphasis added)).
In short, none of McCutcheon‘s theories provides a basis for avoiding the statute of limitations bar imposed by the July 26 publication of the allegedly defamatory statements.
2. Discovery Rule.
McCutcheon also argues that the “discovery rule” should operate to toll the statute of limitations of this action until August 3 or 4, 1983, the dates on which he learned of the existence of the defamatory statements and read the newspaper article reporting them. Application of the discovery rule would mean that the statute of limitations would not begin to run until McCutcheon discovered or reasonably should have discovered the existence of all the elements of his cause of action. See Greater Area, Inc. v. Bookman, 657 P.2d 828, 829 (Alaska 1982).
We first extended the discovery rule beyond the context of professional malpractice in which the rule originated in Hanebuth v. Bell Helicopter Int‘l, 694 P.2d 143, 144 (Alaska 1984), quoting Stoleson v. United States, 629 F.2d 1265, 1269 (7th Cir. 1980), (“the nature of the problems faced by plaintiff in discovering his injury and its cause ... governs the applicability of the discovery rule” (footnote omitted)). See also Hazen v. Municipality of Anchorage, 718 P.2d 456, 464 (Alaska 1986); Gudenau & Co. v. Sweeney Ins., 736 P.2d 763 (Alaska 1987).
What McCutcheon fails to recognize here is that knowledge of the defamatory statements on the part of the person libeled is not a necessary element of a cause of action for libel:
The mere speaking or writing of defamatory words, it is well settled ... is not actionable unless such words are heard or read and understood by persons other than the defamed; hence, the cause of action accrues only upon the satisfaction of this condition. The fact that the person defamed had no knowledge of the defamation, until shortly before the action is brought, is of no consequence.
Hartmann v. Time, Inc., 64 F. Supp. 671, 678 (E.D. Pa. 1946), modified on other grounds, 166 F.2d 127 (3rd Cir. 1947), cert.
Furthermore, no particular obstacles prevented McCutcheon from discovering the publication of the defamation here. Cf. Lashlee v. Sumner, 570 F.2d 107, 109-110 (6th Cir. 1978) (deliberate concealment of libel cause of action by defendant will postpone accrual of cause of action, but mere ignorance of plaintiff will not toll statute). Those courts which have applied the discovery rule to the accrual of libel actions have done so in situations where the libel “was committed in an inherently secretive manner,” such as by a letter contained in a confidential personnel file or in confidential credit reports. McGuiness v. Motor Trend Magazine, 129 Cal. App. 3d 59, 180 Cal. Rptr. 784, 786 (1982) (rejecting application of discovery rule where libel appeared in nationally distributed magazine); see, e.g., Manguso v. Oceanside Unified School Dist., 88 Cal. App. 3d 725, 152 Cal. Rptr. 27 (1979); White v. Gurnsey, 48 Or. App. 931, 618 P.2d 975 (1980); Kittinger v. Boeing Co., 21 Wash. App. 484, 585 P.2d 812 (1978); infra note 12. Further, it has been noted that “there is a decided modern trend to apply the rule of discovery in ... cases in which the alleged defamatory statements are published under circumstances in which they are likely to be kept secret from the injured party for a considerable time.” Clark v. Airesearch Mfg. Co., 138 Ariz. 240, 673 P.2d 984, 986 (1983) (emphasis added) (holding rule applies where defamation is peculiarly likely to be concealed from plaintiff, as in confidential memo or credit report); e.g., Tom Olesker‘s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 61 Ill. 2d 129, 334 N.E.2d 160 (1975); Sears, Roebuck & Co. v. Ulman, 287 Md. 397, 412 A.2d 1240 (1980); Kelley v. Rinkle, 532 S.W.2d 947 (Tex. 1976).12
Given the short time lapse between the July 26 publication and McCutcheon‘s alleged discovery of the defamation, it is evident that McCutcheon is trying to stretch the rule well beyond any of its prior applications to cover his otherwise inexcusable delay in filing suit. To conclude that the libel here was “inherently undiscoverable” for the short period between its publication and the date of the newspaper report such that the discovery rule should toll the statute would distort the intent of the rule to assist defamation plaintiffs who are truly disadvantaged by a secretive publication. Moreover, even if we were to apply the discovery rule to defamation actions without the “inherently undiscoverable” limitation, we would nonetheless find McCutcheon‘s claims time barred because at the latest he “reasonably should have discovered” the existence of the defamatory statements on July 29, 1983, the date of the newspaper article reporting them (or the following day, since the Juneau Empire is an evening newspaper). The statute of limitations could thus be tolled only until July 30, 1983, and the claims filed by
B. Statutory Immunity.
Alternatively, even if the statute of limitations did not apply to bar McCutcheon‘s libel claims against the state, we would affirm the superior court‘s grant of summary judgment because the state enjoys immunity from the suit under
McCutcheon argues against application of section .250(3) here based on his contention that sovereign immunity extends only to high-ranking state officials acting within the scope of their official duties. He misconstrues the authorities offered to substantiate his asserted limitation of sovereign immunity to high-ranking officials; they stand not for the proposition that the state is not immune from suit where a lower-ranking official or an official acting outside the scope of his duties is charged with defamation, but rather that the official may be personally liable for defamatory statements made within the scope of his duties.15 McCutcheon‘s argument confuses sovereign immunity under section .250(3) with the common law doctrine of “official” or executive immunity, which under certain circumstances shields public officials from personal liability arising from the exercise of their official duties. See Aspen Exploration Corp. v. Sheffield, 739 P.2d 150, 162 n. 29 (Alaska 1987); State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 763 & n. 5 (Mo. App. 1981); Tilton v. Dougherty, 126 N.H. 294, 493 A.2d 442, 444-45 (1985); Lister v. Board of Regents of Univ. of Wisconsin Sys., 72 Wis. 2d 282, 240 N.W.2d 610, 620-21 (1976); Prosser and Keeton § 132, at 1056.
Even if, as McCutcheon contends, Acting District Attorney Svobodny did not fall within the category of government officials entitled to common law immunity from defamation claims, that fact is material to the issue of his personal liability to McCutcheon but is irrelevant to the issue of state responsibility. Moreover, if Svobodny was not acting in his capacity as a state employee in committing the allegedly libelous acts, then the state could not be held accountable for those acts in the first place.
In addition, as the state argues, section .250(3) on its face mandates finding the state immune from McCutcheon‘s libel action. We have previously held that where, as here, a statute‘s meaning appears to be clear and unambiguous, the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent. University of Alaska v. Geistauts, 666 P.2d 424, 428 n. 5 (Alaska 1983); cf. Municipality of Anchorage v. Sisters of Providence in Washington, Inc., 628 P.2d 22, 27 n. 6 (Alaska 1981) (rejecting formulation of plain meaning rule which mandates disregarding all legislative history if the statute‘s wording is clear and unambiguous on its face). McCutcheon has not carried this burden. He has presented no evidence of legislative intent (and none has been located independently) to limit the libel exception such that sovereign immunity exists only when libel is committed by high-level government officials. Furthermore, he has mustered no
Based on the foregoing, we conclude that section .250(3) immunity would preclude maintenance of McCutcheon‘s claims against the state.
C. Joinder of Svobodny as Party Defendant.
McCutcheon contends that the superior court should have allowed him to amend his complaint to add Svobodny as a party defendant. McCutcheon sought leave to amend on December 3, 1985, after the state moved for summary judgment. For the amendment to be allowable under
AFFIRMED.
MATTHEWS, J., concurs.
I see no reason to carve out an exception to the common law discovery rule for public libel cases. Thus, I believe that there is a question of fact as to when the appellant reasonably should have discovered the defamation. Nonetheless, I concur with the court‘s reasoning on the statutory immunity grounds expressed in part B of the opinion. I also concur with the court‘s treatment of Svobodny‘s claim, because the Civil Rule 15(c) relation back requirements were not satisfied, as explained in footnote 17 of the opinion.
Notes
(Emphasis added.)Actions to be brought in two years. No person may bring an action (1) for libel, slander, assault, battery, seduction, false imprisonment, or for any injury to the person or rights of another not arising on contract and not specifically provided otherwise ... unless commenced within two years.
(Emphasis added.)Actionable claims against the state. A person or corporation having a ... tort claim against the state may bring an action against the state in the superior court.... However, no action may be brought under this section if the claim
....
(3) arises out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.
(Emphasis added.)Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.