*1 fаcially void. We distribution earlier trial court’s conclude the
hence legal error.
judgment is free from granted, previously the Court
On certiorari vacated and the trial Appeals’ opinion is summary judgment is affirmed.
court’s V.C.J., SIMMS,
LAVENDER,
HARGRAVE, ALMA WILSON and
SUMMERS, JJ., concur.
HODGES, C.J., and KAUGER and
WATT, JJ., concur in result. PRICE, Appellant,
William S.
David Lee and Don WALTERS
Hoover, Appellees.
No. 78483.
Supreme of Oklahoma.
May 1996.
Rehearing July Denied *2 of First State
tions Assistant United Attor- ney Attorney for and United States A detailed Western District of Oklahoma. background recitation the factual litigation necessary to a determina- controversy. tion of the During period in which federal “Manda- tory Regulations” Price Allocation for products were in petroleum crude oil effect, indepen- Company Seneca was an Oil producer gas natural dent of crude oil and price regulations included Oklahoma. The ceilings exempted for sale of crude oil but price “newly oil” from the discovered crude David L. Lightfoot, R. Medford David ceiling regulations. “Newly discovered crude Medford, Lightfoot City, Gary & Oklahoma “produced oil ... oil” was defined as crude Meier, Richardson, Gregory L. G. Richard- oil property from a from which no crude was Tulsa, son, for Stoops, Appellant. &Meier produced year 1978.” re the calendar In (10th 1445, 1448 Oil 906 F.2d Seneca Turpén, Bedingfield, Michael C. M.D. Cir.1990). violating regula- Penalties for Wilson, Riggs, Abney, Douglas Chapel, A. restitution, impris- tions included or fine and City, Appel- Turpén, Neal & Oklahoma for price The oil onmеnt. 754. UH.C. lees. in 1981. controls were discontinued Howev- er, past enforcement action for violations Nelon, Harris, A. Lau- Robert D. Gretchen savings clause. Id. continued under a Andrews, Davis, Bixler, Hood, Legg, ra B. Price, City,
Milsten Oklahoma for amicus & In 1977 and Seneca conducted test curiae. drilling properties in Oklahoma and five the “test oil” that it recovered. Id.
sold regula- Taking position that the crude oil SIMMS, Justice. only applied production in tions commer- Price, for William Candidate Governor S. quantities, pro- that oil cial certified Seneca election, Republican on the ticket the 1990 properties after duced the five against David brought “newly a defamation action oil.” Seneca discovered crude Candidate, Walters, charged that oil from market-price No- Lee the Democrat it assistant, set Hoover, vember 1979 to December media three Don Walter’s suspense in a account difference aside prior general election. This weeks charged and price between market press release action arose from a issued regulated ceiling price. Id. days eight prior to Walters Hoover some filing action. of the defamation July In of the General the Office Department Energy Counsel of the U.S. judge defendants’ mo- trial sustained (DOE) 1980-3, Ruling Interpretive issued summary judgment for tion for the reason regu- in the stating “produced” that the term privileged under the ” “any quantity in produced lations meant O.S.1991, 1443.1, provisions infra. February Id. at Sene- 1449. timely perfected appeal. Plaintiff Price ca, injunctive sought operator, as wells declaratory enforcement relief FACTS Ruling District 1980-3 in the United States District of Oklahoma. for the Western defamatory publication alleged con- trusts, parents’ in federal court was a for his cerns Price’s involvement trustee trustee, party plaintiff in named a posi- he and as litigation, during period held the lawsuit, along compa- moneys Seneca’s other oil had pay profit used windfall taxes working Seneca, nies and individual interest owners. and state severance taxes. In re The Price trusts had interests in the Okla- F.2d at n. 1449 5. property. suspended homa portion Seneca sought DOE to have a constructive trust royalty working disbursements in- declared, and, ultimately, the Tenth Circuit *3 terest owners from its sales of crude oil in an Appeals Court of imposed such a trust in equal amount to the difference between the bankruptcy proceedings finding Seneca’s price ceiling pricе. market and the 906 F.2d Seneca had “violated over- Thus, at 1448 n. 2. the record indicates that charging oil, for wrongdoing is more suspense the trusts had an interest in the typical creditor-debtor situation.” financially fund and would benefit from Sene- Id. at 1451. The Tenth Circuit noted that challenge regulation. ca’s successful money recovered the DOE in the case filed,
At the time the action was Price was “compensate overcharged purchasers” serving First as Assistant United States At- and be distributed as ‘“indirect restitution’ torney in the Western District. Price be- energy states for programs conversation Attorney came United States in 1982. treasury.” and the Federal Id. at 1456. granted The federal district court relief to In resigned Price Attorney as U.S. plaintiffs appealed. and DOE After find- gubernatorial enter the 1990 Oklahoma race. ing plaintiffs’ appellate several of the conten- campaign placid was not a one and in- merit, tions to be without Seneca Oil Co. v. general tensified as the approached. election Department Energy, 712 F.2d 1399- releases September issued between (Temp.Emer.Ct.App.1983), appellate 3, 1990, 1990 and October Price accused (TECA) court, court reversed the district Walters of ethical in gu- viоlations the 1986 holding pricing regulations that the were val- bernatorial campaign and claimed that Wal- produced id and that the oil from the Okla- ters philosophical had no backbone and no properties homa “newly was miscertified as political integrity. September 20,1990, On appellate discovered.” The federal court di- page front Daily headline Oklahoman rected the grant district court “to the motion read: “Bloodbath Hinted Race For Gover- appellants Secretary [DOE and the nor.” paper quoted That Price warning as Energy] summary judgment, for and to you heat, “If Walters: can’t get stand the out grant appropriate motions for orders to se- September the kitchen.” A recovery appellees cure of the over- headline in the Tulsa World read: “Price- charges Ruling in violation of 1980-3 and the Waiters Shaping Up Down, Race 2,May legislative regulation, interest Dirty.” thereon and costs.” (emphasis Id. at 1402
added). Significantly, the order does not During his campaigning, Price claimed Seneca, distinguish that, between the other oil Attorney, U.S. he was the most company appellees, or working- the individual investigated candidate Governor in histo- interest appelleеs. party owner appeal- ry: No nothing my “There is background or ed. financial activities that have ever raised a question.” campaign The Walters hired an Attorney’s U.S. office in the Western independent consultant, out-of-state Re- District received the mandate from the fed- search, Inc., to opposition conduct research. eral appellate sought judgment court but on behalf against of the DOE only. Seneca Koenig, Jackie employee, Research Inc. Seneca filed for bankruptcy before came to Oklahoma and discovered references entered favor of the DOE. At the to Price in certain federal litigation date of bankruptcy, overcharges plus conducting while research at the federal $1,741,597.77. However, interest totaled City. courthouse Oklahoma She obtained $1,282,706.95 only there was copies records, Seneca’s con- of the court and took them tingency fund at that time because Seneca back to California with her. type ‘We know what of businessman employee an Don now Carrier was
Mike is,’ gubernatori- Bill City. At said Democratic office in Hoo- Hoover’s Oklahoma Koenig ‘He telephoned al candidate David Walters. has been request, Carrier ver’s talked, 7, 1990, and, guilty very after he accused and found October courts to issue a he worked in.’ her he wanted told regarding litigation. the federal Car- dealings go Walters said Price’s even morning Koenig again spoke on the rier interest, being a far as a conflict of direct — Koenig to summa- asked October he plaintiff in the and a defendant case findings incorporate he so that could rize her being government’s responsible for the issued that into a them being himself after named press release morning. Carrier drafted the Attorney.” Koenig’s taking findings. Koe- notes of after *4 Price, press acting as The release states that to deposition at the effect nig testified trusts, parents’ and trustee for one of his Price, emphasis upon press release’s the Seneca, including eleven other defendants Company, an inde- than Seneca Oil rather guilty overcharging of were found consumers gas
pendent producer oil and natural per much barrel for oil when the as $26.80 Oklahoma, operator and wells which the properties oil from five defendants sold trustee, interest, Price, con- had an Major County, Oklahoma 1978 and 1979. report. trary to her press The relеase further stated that nor Hoover had con- Neither Walters family and documents showed that Price his research, her Koenig with about tact “working in vari- trust were interest owners investigate the fed- did research properties sharing ... in the ous the five litigation themselves. Hoover made eral pro- the shares of oil revenues from crude stylistic changes press release some properties.” duced on these The release approved final draft. Walters Carrier’s Energy Department U.S. states that the Tulsa, press the and Hoover read overcharging for fined Price and others telephone. him After release to over legally per allowable barrel more than the press publi- approved the release for Walters $14.00, approximately amount of and accord- cation, press. Hoover distributed it to documents, repeated- ing to court defendants overcharges. ly fought against repaying the press headline read: “Price The release Law, By Fined million Federal Broke $1.74 next filed release stated Seneca below, Immediately another Government.” bankruptcy paying the battle to avoid but Gouged Consumers headline stated: “GOP continued, judgment referred Pump Working As Federal At Gas While where the federal to one federal document press Lawyer.” The release con- text lawyers charged the defendants were tinued: shuffling “money in out of improperly trust ac- government what the believes prosecutor working as federal “While judgment. The up” pay count set being uphold the laws sworn Department of release states that the U.S. Bill country, gubernatorial GOP candidate Energy to force the defendants filed suit gouging Price was fined million for $1.74 10th Court pay judgment, and the Circuit selling higher oil than consumers judg- Appeals 1990 that the ruled June prices. allowable paid. Again, re- ment should on in Oklahoma documents file to a court document where lease referred City on CV 81-215 and Fort Worth case the defendants “violated federal court said bankruptcy reveal Price and a later oil, by overcharging more which is group companies of oil and investors wrongdoing typical creditor-debtor than the by two and the guilty were found courts situation.” Department Energy violating U.S. quotes guidelines in the release concludes price oil late from Walters:
1970’s. campaign percentage ownership his ‘“Bill Price has based on termined law-abiding Attorney crude oil that Senеca sold on their behalf. his record as businessman,’ point Defendants also out that the TECA Walters said. and as appellees, pertained to all named ‘Well, record —a this is his million $1.74 Attorney’s but the U.S. Plain- Office—where up gouging driving fine for consumers and Attorney tiff was the U.S. not seek —did price gasoline being financially recovery against working owner interest bankruptcy,’ tied to a firm filed Wal- thus, and, appellees, out carry did not ters said. mandate as directed. in Bill “What other skeletons are Price’s maintain that Defendants closet?’ Walters asked.” appropriately called attention to Price’s con- interest, apparent
flict of face of Plaintiff the federal documents. I.
states in his in chief brief that he recused appear himself from the case and “did not ON APPEAL CONTENTIONS However, any impropriety.” act with Defen- dants maintain that the court documents do appeal trial grant On from the court’s not show that followed procedures. he recusal summary judgment, Price claims that there *5 Defendants, According working to inter- (1) factual over were controversies whether keep est to owners wanted the funds ob- (2) press privileged; release was whether through illegal tained overcharges press substantially release was a by ratified the crude oil misеertifications (3) report judicial proceedings; accurate joining in Seneca’s lawsuit. Defendants press expression whether the release was an claim family’s that Price was trustee his judicial opinion regarding proceeding; liability ruling trust and his under the TECA (4) press whether the release is a criticism proportion was in family’s to his interest in (5) any appellant; upon official act of wheth the suspense They fund. further claim that press falsely imputes er the release a crime join Price could have refused to in the law- (6) him; and, to whether defendants acted suit or dismissed his claims but did neither. argues with malice. He the federal Finally, Defendants claim that Plaintiff was proceedings support court do not allega “trying prove press to untrue release, press in tions and attacks the ignoring focusing the TECA mandate and press headlines of the release and the use of Attorneys’ incomplete the U.S. fulfillment of law”, the terms “broke the “violated federal the mandate.” law”, “defendant”, “accused”, guilty” “found and “involved a direct conflict of interest” this, responds To that “[f]or some per as libelous per se. Price’s claim of libel reason ... unknown he was named grounded upon se the contention that the working trustee for the trusts when in- language “engenders of the joined terest owners Seneca in its suit conclusion, the mind of impres the reader And, the DOE.” man- TECA’s sion, opinion plaintiff that is defamatory date overcharges to recover “appellees” Morgan, 1152, 1154 ...” Winters v. 576 P.2d “interpreted” meaning the DOE as (Okla.1978). rule, course, This would not only Seneca and the other oil company appel- apply privileged speech. to Because we find lees. below that the privileged statements were we per
need address Price’s assertion of libel II. se. hand, On the other point Defendants out THE ISSUE OF PRIVILEGE working interest owners did own a con- percentage siderable suspense of Seneca’s Although summary judgment mo percentage fund —this ownership being presented tion purportedly de- two bases enti- publication such judgment, the .mine whether or not trial court tling Defendants (quoting P.2d at 1028 upon privileged.” 714 action was barred based found that the O.S.1991, Publishing supra). v. Oklahoma statutory Title 12 Cobb privilege. 1443.1, pertinent part: provides, in then as a matter of law We determined publication or commu- privileged “A. A substantially were accu- broadcasts made:
nication is one privileged under rate therefore O.S.
[*] [*] [*] [*] # [*] proceeding. 1443.1 a fair report any By Third. a fair and true dispute publicаtion of Defendants do not proceeding legislative or or other State, v. See McCutcheon release. anything said in the authorized (Alaska 1987); P.2d 461 Hel Munafo thereof, expres- all any course (S.D.N.Y.1956). fand, 140 Like F.Supp. and, thereto, regard opinion sions release, wise, the content of who thereon, any and all criti- criticisms about, it and what it is is not dis made upon and all cisms the official acts pute. The documents show that Price court officers, except matter where litigation, party plaintiff a named concerning the act stated of and official plaintiffs sought where the to retain benefit officer, done, falsely imputes or of price, and a of sales of crude oil market officer so criticized. crime price an court over charge under of federal law. text publication B. No this sec- violation unequivocally privileged punisha- of the federal court tion would be shall added) grant (Emphasis directed the district orders ble as libel.” recovery overcharges against “ap- secure In Crittendon Combined Communica- plaintiffs all pellees”, which included *6 (Okla.1986), Corp., 714 P.2d tions 1026 DOE, declaratory judgment action. The upheld rule our well-settled that where office, Attorney’s by thе U.S. represented of a not in publication the circumstances are proceeded against only Seneca. publication of dispute, the issue whether statutory privilege section 1443.1 of ques- under 1443.1 a privileged section is reports “fair of further than and true extends physician a tion of law for the court. There “any applies It and proceedings.” against a a brought defamation action televi- thereto, opinion regard expressions all of allegedly libelous sion station for broadcasts thereon,” as as to criticisms well “criti- and concerning hearing de- where public acts” officers. upon the cisms official judgment was him for fault entered context, components Read held trial court commit- malpractice. We are from the court records inferences submitting ques- error ted reversible together expressions of candidate Wal- statutory privilege jury, to the there- tion of They largely are his opinions. com- ters’ general by reaffirming allegiance our ment, personal judgment on his criticism and Halsell, 61, Tuohy adopted in 35 rule v. Okla. court liti- political opponent’s role (1912), P. Cobb Oklahoma 128 126 opponent that gation, which when occurred Co., 314, 140 Publishing 42 P. 1079 Okla. publiс held office. (1914),that: complaint regards the use that, principal is where Price’s “The rule in such cases give such as “defendant” dispute the circumstances words there no as to defendant, is, a criminal impression that he was publication is made —that under which a However, although guilty, and fined. dispute no as to what the where there is they plaintiffs, was, about, were and Price and others were publication what it seeking or answer assertions in the language it —or who made where defend they violated feder- unambiguous, government that had plain it is publication is statement that “Price pricing al laws. The law for court to deter- 1376 slanted, expression breathing space
Broke Law” and “Fined” is but are have the survive, recovery the federal court order did direct need to therefore consti- Ruling 1980-3,” “overcharges in violation of upon tutional does not turn and, truth, moneys popularity under federal those recov utility social “compensate overcharged pur ered would ideas and beliefs considered.” P.2d 637 chasers” and be distributed to the state as “indirect restitution.” The statement (Second) Importantly, the Restatement clearly “gouged consumers” is nonac- Torts, 581A, (f), provides: comment “It is “judgmental tiоnable statement” which is necessary not to establish the literal truth “opinionative not factual in nature.” precise Slight statement made. inaccu-
Miskovsky Publishing v. Oklahoma 654 expression provided racies are immaterial (Okla.1982), denied, P.2d cert. defamatory charge in sub- 74 L.Ed.2d S.Ct. stance.” our privi-
While decision rests on concluding quotes lege, from Wal important is nonetheless to consider ters and references to plaintiff’s light “skeletons” Price’s claims in of extant first closet personal opin are more of the opinion” analysis. amendment “fact vs. same — hyperbole. Welch, ion and Inc., These kinds of rhetorical Gertz Robert 418 U.S. expression protected, are (1974), and S.Ct. L.Ed.2d the Su- so, rightly because of the “realization preme Court declared protec- constitutional profound there exists a national commitment expressions opinion, tion for the immuniz- principle public that debate on issues ing them from consequences, defamation uninhibited, should be open, robust wide stating: may the discussion include well begin “We ground. with the common vehement, unpleasant caustic and sometimes Under the First Amendment there is no ly sharp attack on officials.” Jurkow thing perni- such as a idea. false However (Okla.1981). ski v. Crawley, opinion may seem, cious an depend we piece Where “pointed, exag the tone of its correction on the conscience of gerated heavily laden with emotional judges juries on the competition but rhetoric outrage,” and moral readers are no other ideas.1 But there is no constitutional *7 expect speculation personal tified “to in value false statements of fact. Neither
judgment.” v. Milkovich Lorain Journal the intentional nor the lie careless error 32, 2712, 497 U.S. 110 S.Ct. 111 materially society’s advances in interest (1990) (Brennan, J., L.Ed.2d 1 dissenting). ‘uninhibited, robust, and wide-open’ debate public on issues. New York Co. Times v. subject press use does words Sullivan, U.S., S.Ct., 376 at 84 at might that be considered some to be Although 721- the erroneous state- However, inappropriate. this Jurkowski worthy ment of fact is not of constitutional Court recognized some protec- constitutional protection, it is nevertheless inevitable in statement, clearly tion for erroneous which 341-42, free debate.” 418 at 94 S.Ct. be, do we not find the release to when (Footnote omitted). recognized: Gertz, “Aside from the inevitable chance frank Since this distinction fact between abuse there opinion fact that erroneous adjudication has been seen as an debate, statement is dimension, inevitable free necessary pro- constitutional to that those erroneous requisite must ad- statements vide protection First Amendment to ditionally protected be if the opinions. freedoms of Speaking point this to in Oilman 485, 503-04, recently quoted 1949, 1961, 1. This statement from Gertz S.Ct. 80 L.Ed.2d approval by Supreme with the U.S. Court in Bose (1984). U.S., Inc., Corp. v. Union Consumers 466 U.S. hominem; (D.C.Cir.1984), better, Evans, ad that avoidance 750 F.2d v. is, “overwhelming pages if the editorial agreed
the court on authority” public press were modeled The Feder- post-Geriz that this de- weight of Papers. is not alist But that the world is a which courts must termination decision live, lived, have are ever That which we ever matter law. court also make as a know, likely to and the law of the first though that even meth- observed try amendment must not make distinguish between fact ods used dispute all the safe and comfortable for opinion vary, the of the issue determination only participants. That would stifle the important First Amend- as one of serves debate.” predictability of deci- values since the ment
sions cording to announced is enhanced when legal they standards are made ac- [******] published case law. “Thеre are several factors that convince maintain action. me Oilman cannot Bork, concurring opin- Judge Robert his type are of that These considerations Evans, supra, spoke of ion Oilman Supreme and other courts have perceive reader should statements danger important: to first deemed functionally “opinion” as than “fact” more amendment freedoms and functional they appear in the of swirl- context because meaning challenged statement controversy. Like state- ing political its qualities shown context Oilman, the ments at issue in statements hyperbole. The recognizable rhetorical actionable; into the are not fall here Oilman, by his own ac- factors here are: Supreme “rhe- category the U.S. Court calls tions, political entered a arena in which 994; hyperbole.” F.2d at torical Green- expected to be heated discourse was Bresler, Cooperative Publishing Ass’n v. belt protected; proposed ‘fact’ must be 1537, 26 L.Ed.2d 398 U.S. S.Ct. wholly tried is in truth unsuitable (1974); Letter National Ass’n. Carriers trial, imperils discus- which further free Austin, 2770, 41 418 U.S. 94 S.Ct. sion; is not of the kind statement special relevance L.Ed.2d Of usually accepted as one of hard Judge analyses impact are Bork’s us appeared in a context further fact and political and his libel actions arena hyperbole.” it was indicated rhetorical regarding who have observations individuals n » * * * * * subject spirited public debate become by voluntarily are- placing themselves therefore, this, deciding “In a case like na. important most one of the considerations alleging person defamation whether part he stated: in an placed himself has some real sense freshening arouses “It concern expect jostled where he arena should *8 actions, of libel which often seem stream private person bumped way that a and designed punish publi-
much writers and polities ideas expect. not Where and need damages as to recover for real cations contend, there a first politics is about may public injuries, the and con- threaten de- The individual who amendment arena. free, frequently and stitutional interest expect liberately that arena must enters step into rough, discussion. Those who rough that the debate will sometimes be public dispute, who choose the areas of 993,1002. personal.” F.2d at and controversy, pleasures and distractions criticism, properly court en- dispar- conclude the lower willing We must bear correctly analysis wounding gaged in a Crittendon and and assessments. agement, even subject press privileged if release Perhaps disputation it be better would sub- press The release is phrases and under the statute. conducted in measured were assessments, stantially and is a fair and and strict accurate calibrated with sions, expressions summary judgment report of the basic facts. The must denied. regard are not ac- opinion Corp., to those facts Buckner General Motors 760 P.2d (Okla.1988). exclusively 803, Those statements fall tionable. Because reasonable hyperbole”; category “rhetorical disagree within persons could whether the con- O.S.1991, privileged are under 12 press tent release the case at bar 1443.1, protected and under the constitu- true, summary judgment fair and Therefore, unnecessary tion. it is to address improper.
the issue malice. majority The cite Crittendon Combined reasons, foregoing For the above and Corp., Communications 714 P.2d judgment of the district is AF- (Okla.1986), support that statement FIRMED. publication where the circumstances of the not in dispute
are then the issue whether publication privileged under section KAUGER, SIMMS, V.C.J., J., JOHNSON, is a of law for the court. The REIF, STUBBLEFIELD, Special and Crittendon Court labeled whether the televi- SUMMERS, HODGES, Judges, in lieu of report” sion broadcast was a “fair and true WATT, JJ. who certified their the “core issue” of the That ease. case in- disqualifications, concur. of a volved television broadcast default C.J., WILSON, LAVENDER, judgment against physician ALMA in a medical OPALA, JJ., malpractice defamatory HARGRAVE and dissent. its case and effect on physician. Crittendon observes: “A WILSON, Justice, ALMA Chief substantially if ‘gist’ statement is accurate LAVENDER, whom HARGRAVE and is, ‘sting’ true, if produces or that it OPALA, JJ., join, dissenting: recipient same effect on the mind of the precise truth pro- would have majority opinion The refers to the Crittendon, 1029, quot- duced.” 714 P.2d at hyperbole, rhetorical and con- WCAU-TV, ing F.Supp. 198, Williams v. dispute cludes there no basic (E.D.Pa.1983). The Court concluded majority facts in the release are true. The “gist reported of the statement was then affirms the actually the same as the statement made trial To court. this I must dissent. during judicial proceeding.” But reason- majority opinion does not address the persons gist able could find that the issue per of whether the libel press release in the ease bar was neither opinion se because the finds that the state- true, fair nor producе O.S.1991, were privileged. ments Title same effect in the mind of the reader as 1443.1(A)(Third) privileged defines a com- precise produced. truth would have as one munication made: at bar is not a Crittendon case. “By a fair any legisla- and true The headline release states: proceeding tive or other autho- Law, “Price Broke By Fined million $1.74 anything rized said in the course Federal Government.” The facts are that thereof, any expressions all Company sought injunctive Seneca Oil regard thereto and criticisms declaratory relief the enforcement of thereon, any upon and all criticisms (DOE) Department Energy Interpretive the official acts of and all offi- *9 Ruling that price ceiling would continue a cers, except where the matter stated of regulation on oil Seneca discovered in done, concerning official the act or of subsequently and 1978. sold Seneca that oil officer, falsely imputes the crime the higher price at the market 1979 and 1980. officer so criticized.” set Seneca aside the difference in an interest- persons If the bearing suspense under evidence reasonable account. In Seneca re Oil (10th might reach Company, different conclu- inferences or 906 F.2d Cir. trusts, certain- parents’ for his he 1990). on its inter- As trustee actually prevailed Seneca ly responsible for actions of the regulations in district pretation the federal Company. responsible for To ruling was Seneca Oil court, the DOE’s which held that consumers the actions of Seneca “gouging” Company, 906 In re Seneca Oil invalid. imputed have as an act of would first Emergency Temporary at 1449. The
F.2d owners, ac- working their court, the interest then the district Appeals Court of reversed imputed trust- would have to be tions interpretation the holding that the DOE’s argua- That is too far removed even ee. “and regulations valid that Sene- pricing liability. ble regulations by pricing ca violated the had by overcharg-
miscertifying
its crude oil
of the
about the text
release?
What
ing
Company,
In re
Oil
for oil.”
Seneca
persons
may
conclude?
reasonable
What
1449, citing
Depart-
Oil Co. v.
F.2d at
Seneca
working
prosecutor and
a federal
‘While
as
F.2d
Energy,
ment
the laws
coun-
being
uphold
sworn
of the
The Tenth Cir-
(Temp.Emer.Ct.App.1983).
Bill Price
try,
gubernatorial candidate
GOP
holding in
cor-
report of
that case
cuit’s
the
gouging
million for
consum-
was fined $1.74
over
superimposes the word “Seneca”
rectly
selling
higher
аllowable
by
oil at
than
ers
quoting
order of
“appellees”
the
the
word
Bill
the
prices.” It is
Price was
Emergency
Court
Temporary
remand
he
gubernatorial candidate and that
GOP
states, “The
The
Circuit
Appeals.
Tenth
but,
prosecutor,
a federal
as established
‘to
to the district court
TECA remanded
above,
specifically
the Tenth
held
Circuit
to se-
grant
appropriate
motions for
orders
penalties
levied.
no fines or
were
recovery
the over-
[Seneca]
cure
reads:
docu-
Ruling
and the
The next sentence
“Court
charges in violation of
1980-3
City and Fort
legislative regulation,
on file in Oklahoma
interest ments
May
”
later bank-
on case CV 81-215
and costs.’
In re Seneca Oil Com- Worth
thereon
group
and a
of oil
citing
case reveal Price
ruptcy
F.2d at
Seneca Oil
pany, 906
guilty
companies and investors were found
Apparently the Tenth
been.indicted protecting public figures against outright crime, lant had been indicted for speech falsehoods. Free was intended to much less convicted. protect public by allowing issues to be Supreme freely Court Nevada affirmed a vigorously pub- discussed. Grave gubernatorial defamation award in of a injury favor lic if certain this state tolerates candidate broadcasting a television disregard reckless for political the truth in company majority and its campaigning. shareholder Ne- Such is certain to dimmish . Indep. Allen, vada Broadcasting Corp. public seek confidence. Those who Nev. 664 P.2d responsible In a live office must be their defama- *11 2) any judicial proceeding privileged, is injure oppo- of a campaign tory statements opinion regard destroy expressions the in- all of egregiously and and that nents report are representation. For these criticisms of such of our thereto and tegrity 3) judgment any of upon the the all privileged, I would reverse and and criticisms reasons privi- remand trial. district court and of officers are the official acts falsely imputed
leged
a crime is
there-
unless
opinion
privileged, the
by. In order for
HARGRAVE, Justice, dissenting:
being
report
privileged by
be
a
itself must
only
this
is whether
issue before
judicial
report
proceed-
and
the
fair
true
granting
trial court erred
the
is, only
first
ing.
when it is
determined
That
grounds
on the
the defendants
is
and
can the
report
fair
true
the
privileged
press
involved was
that the
expressions
whether
determination be made
matter of law under
O.S.1981
as a
regard
privileged.
are
opinion in
thereto
report
§
of a
as a “fair and true”
1443.1
only the first
The matter before us involves
judicial
judge ruled
proceeding. The trial
report
is fair and
question
the
—whether
privileged as a
only
the statements were
say
of law that
true. To
as matter
judicial proceeding.
report
fair and true
report
report
is a fair and true
at issue
I
reverse and remand because
would
expressions of
statements are
because the
question
report in this case is
of whether the
question,
my opinion.
opinion begs the
jury
question
true”
for the
“fair and
is
In Crittendon
Communica-
Combined
meaning
could differ on the
because readers
(Okla.1986)
Corp., 714
this
tions
only
release. The case involves
judi-
report
privilege;
that the
of a
interpretation of
law on
Court determined
Oklahoma
privileged as
necessary
proceeding
not
to make that
in that case was
cases are
cial
that a
determination.
of law. We found there
a matter
if
“substantially
account will suffice
accurate”
provides:
1443.1
Title O.S.1991
persons
it a
conveys
who read
it
privileged
A
communication is one
“A.
substantially
proceed-
correct account
made:
gist
report
ings.
of the entire
Where
true,
we
that the
was both fair
By
report
any
Third.
a fair and true
by statutory privi-
report
protected
would
proceeding
other
au-
legislative,
in that
lege.
able to
determine
We were
so
any
thing said
thorized
publi-
the circumstances
because
thereof,
any
expressions
and all
course
it,
content,
what it
who made
cation: the
thereto,
regard
and criticisms
dispute.
not in
Because
was about were
thereon,
upon
any
and all criticisms
said,
undisputed, we
the trial
facts were
public offi-
official acts of
and all
privi-
have resolved
issue
court should
cers, except
the matter stated of
where
not
does
lege
a matter
law. Crittendon
done, or
concerning the official act
every question
proposition that
stand for the
officer, falsely imputes
crime
statutory privilege is to be decided as
so criticized.
officer
Only
not
the facts are
matter of law.
where
publication which under
sec-
B. No
as a
dispute
is the
to be decided
issue
punisha-
privileged
shall be
tion
law.
matter of
as libel.”
ble
is
The content
The case at bar
different.
immaterial, making
determina-
It is
about is
release and what was
tion,
public figure,
plaintiff is a
whether the
disputed.
is
Because the
an
to be consid-
nor is actual malice
element
judi-
essentially
account of the
an
verbatim
is
the re-
question
The sole
whether
ered.
say
we
a matter
proceedings,
cial
cannot
so,
privileged;
if
it is not libelous.
lease
absolutely
publication
of law whether
It
apply.
privileged
Crittendon does not
paragraph of
contains
The third
a)
jury
for the
whether
fact
privileges:
three
*12
judicial
a fair
is no
press
proceed-
is
and true or substantial- There
statement in the
release
ly
judicial
report
proceeding.
ing
party
of a
to which Price
a named
accurate
of
wrongdoing, gouging,
any finding
guilt
of
disputed
I
of
believe that
nature
illegal
regarding
activity
part
on the
of
by
argu-
making
contents
illustrated
is
appellees.
only
of the
The
words used are
release,
press
matter
ment that the
as a
of
“overcharges
Ruling
in violation of
...” and
judicial
report
a
is not a fair and true
of
that
statements
Seneca miscertified the oil.
It
proceeding under the statute.
can be
entered,
report
argued
judgment
that the
is not a fair and true
Before
Seneca filed
report
judicial proceeding
Chapter
reorganization.
of a
for the reason
for
Price was
party
report
bankruptcy.
that the
neither fair nor true. The
not a
to the Seneca
The
press
Department
Energy
proof
release substitutes “Bill Price” for
filed a
claim
$1,741,597.77
Company
pro-
in reporting
Seneca Oil
for the
amount of the over-
ceedings.
by
plus
“wrongdoing” quoted
charges
bankruptcy.
The
interest
date of
to
Tenth Circuit was made
bank-
DOE asserted a
Seneca’s
The
constructive trust over
ruptcy appeal,
proceeding
approximately
million
to which Price
that Seneca
$1.3
party.
contingency
pending
was not even a
had held in a
fund
out-
interpretive ruling by
come
DOE. The
A recap
underlying proceedings
of the
il-
court found
district
that
constructive trust
lustrates the liberties taken
defendants in
imposed
should
because
concluded that
press
their
William
Price
release.
S.
illegal
“clearly
overcharging
Seneca’s
and un-
Price, Virginia
Trustee of the Joel S.
K. Price
equivocally
wrongdoing.”
shows
In re Sene-
party
proceeding
Trust
is a named
one
ca Oil
I C.J., WILSON, and LAVENDER ALMA THE ANATOMY LITIGATION OF OPALA, JJ., concur views herein expressed. summary judgment today us before statutory solely on Walters’ state-law rests Justice, OPALA, with whom ALMA Evidentiary privilege.3 materials defense of WILSON, Justiсe and LAVENDER Chief relate fed- in the record —insofar Justices, HARGRAVE, dissenting. join, impediments to Walters’ eral constitutional 4 (and of actual liability the concomitant lack in issue is Holding that malice) judicial the affirmative state-law defens- two or to report separate and true fair 2.The pany, pany, Adair, are ment of ruptcy homa, Jr., Price, Virginia ern Company, are: judicial tion Third. anything “A. (1) Bill District (2) Eason legal terms of pertinent Southland Case No. William Seneca Oil A Court for [*] J. Energy, one made: privileged By Harry Sparks ... re Seneca actions described in the said in the course Oil [*] proceeding K. Price S. Price BANKR-85-825-A. Company, Oklahoma, U.S. District Court for the M. the Western District of Okla Royalty Company, Robert L. Company, Diamond, Inc., [*] publication and true Oil Lou Trust, authorized Company, Ladd Petroleum [*] Holtz Case No. Trustee Seneca O.S.1991 Samuel report thereof, [*] v. U.S. Par Oil Com communica- Exploration for Joel S. U.S. Bank F. 81-215-T [*] any Depart Wilson, 1443.1 West Com ... 3. For 4. For supra note. ments to criticisms to, and all of and so criticized.” officer, falsely and criticisms a discussion officers, except liability statutory concerning expressions upon the [Emphasis mine.] text issue, imputes crime to thereon, official the constitutional creating where the matter official act see acts of infra regard privilege, section II A. any and done, any impedi- and all officer there- stated or see all application es on common-law fan- general based of the rule that whenever comment, estoppel or waiver —did not under- proof support uncontroverted lends to con- go judicial prius. at nisi inferences, examination flicting the choice to be made opposite presents
between alternatives an is- sue of fact for the trier.6 II privilege’s One of the elements is ALTHOUGH SUMMARY JUDGMENT that the proceeding GROUNDS(RE- BASED ON OTHER “fair and true”.7 Some of the remarks said IN THE FLECTED PROBATIVE to defame Price were drawn from the record MATERIALS) MIGHT HAVE Company’s bankruptcy. Seneca Oil MUSTER, PASSED OUR IT CANNOT party proceeding. was not a to this Whether BE THE RESTED ON BAR OF Walters’ bankruptcy characterization of the *14 § 1443.1 PRIVILEGE proceedings presents was fair and true question of fact by jury. to be resolved today intermixes the affirmative § privilege defense of 1443.1 with the zone of
protection afforded under the First Amend- B ment-grounded New York Times Co. v. Sulli- progeny van5 and its to affirm Extending Disparate The Notion Of Proce- process, for Walters. 'the Similarly dural Treatment To Situated separate origins and distinct and outer limits Litigants Offends The Procedural concepts of these become distorted and mis- Symmetry 5, By 46, § Mandated Art. shaped. away Our focus is drawn from the Okl. Const. judge stubborn fact that the trial failed to Relying on Crittendon v. Combined Communications probative examine the materials the rec- Corp. ,8 the court holds that measuring ord with a view their sufficien- when concerning defamatory com cy summary adjudication facts based on the munication in suit undisputed, are questions. tendered federal-law § 1443.1 privilege presents question of law by which should be judge. decided the trial
A analysis This stops short accuracy. Crit- tendon § does not teach that privi 1443.1 Conñicting May Inferences Be Drawn lege, interposed, presents when an issue of From Uncontroverted Facts On Which that, law in all says cases. What it be Summary Judg- Walters Relied For undisputed cause the facts in Crittendon did § ment On His 1443.1Defense support opposite inferences, their sub The trial jury jury court’s denial of a mission to trial on would have been unwar privilege issue of rests on ranted. controlling Walters’ mate- Crittendon —a precedent tendering undisputed which, rials facts which I concurred and teachings whose I view, my conflicting may inferences continue enthusiastically to embrace —is ful posture drawn. This ly record calls for consistent my analysis with both today 254, 279-80, 710, 725-26, 5. 376 U.S. 84 pertinent S.Ct. 11 7. For terms of 12 O.S.1991 (1964). L.Ed.2d 686 1443.1, § supra see note. For a discussion of the requirement fair-and-accurate of the common- Holman, Okl., Gray 776, 6. 909 P.2d 781 "reporter's privilege”, see (Sec- Restatement (1995); Jones, Okl., 1067, Jackson v. 907 P.2d § j; Wright 581A comment see also ond) of Torts (1995); Independent 1071 Wetsel v. School Dist. Inc., Okl., Newspaper v. Grove Sun 873 P.2d I-I, Okl., 986, (1983); 670 P.2d 991 Thomas v. 983, (1994). Labs, Okl., Optical Hensel 653 P.2d (1982); Co., Okl., Holland v. Dolese 643 P.2d Okl., (1986). (1982); Crouch, Okl., Flick v. 434 P.2d (1967); Lollis, Okl., Morain 371 P.2d (1962); Express Mistletoe Service v. Okl., Culp, 353 P.2d orderly pro- Hargrave, by the by dissent afforded framework in the cess.13 J. summary judgment rests on the Walters’ jury trial on affirma- Walters’
Whether statutory privi- the state single bar of law’s Price’s statutory privilege was tive defense of decision, Although a if lege. trial court’s governed state law be due an issue of correct, may theory differ- be affirmed on 2, 19, § It Art. Const.9 is not a Okl. below,14this case ent from that articulated juris- on reliance resolved among Const, other must be remanded construing the U.S. amend. because — prudence my to be stated dissent —the reasons later all totally 7.10 remains free from Oklahoma presents interposed privilege bar imposes the Seventh Amendment restraints not, which were but should have fact issues judiciary Republic.11 the Federal on been, jury. to a submitted Today’s procedural of a different extension countering a 1443.1- plaintiffs treatment to C from, that accorded other defense jury trial litigants entitled to a stand —who Appellate Make First- Courts Must Not opposite
because
inferences
uncontrovert-
Instance Determinations
ed facts are tendered
their cases —de-
stroys
symmetry of Oklahoma’s remedial
judge
The record reflects that the trial
did
*15
regime
uniformity-of-proce-
the
probative
and offends
the
materials with a
not examine
5,
46,
§
determining
opinions
of Art.
Okl. Const.12
dure mandate
to
if
view
Walters’
pre-
might ultimately
though
judicial proceedings,
Even
Walters
whether accurate or
the
imped-
not,
interposition
may
protection
afforded
under
vail on his
federal-law
be
the
Const,
liability, today’s
Appellate
amend. I.15
iments to
short cut denies U.S.
courts
make
determinations of
fundamental fairness that is
cannot
first-instance
9. The
10. The
11. Wilson v.
12. The terms of Art. 5
National Insurance
pertinent part:
455 P.2d
Const.,
54,
(1979); Chicago,
judicial proceedings
Regulating
plied.]
right
provided
special
law."
than
examined in
fact
Five Hundred Dollars....”
late,
controversy
"The
"In
"The
... or other
controversy
pertinent
Suits at common
tried
except in сivil cases wherein the amount
U.S.
S.Ct.
are:
of trial
Legislature
according
right
[*]
in this
Const,
68,
Foster,
to trial
authorizing:
[*]
by jury
shall exceed
any Court of
tribunals_"
provisions
practice or
Ill
teaches
state-law affirmative defenses.22 It
provisions
a law’s
exоn-
whenever
THE NATURE OF A
O.S.1991
claim,
liability
erate a defendant from
on
§
AND THE
1443.117 PRIVILEGE
respon-
plaintiff
probative
must bear
TRIAL BY
RIGHT TO
JURY
sibility
showing that
not fall
the case does
A
exemption
within the
that shields the defen-
The
of the affirma-
historical antecedents
dant.23
tive defense of
—accorded
mili-
probative
This difference in
fairly
who
burdens
1443.1 to those
terms
truthfully
strongly
in-
report
proceedings
tates
in favor of
remand
—lie
privilege.18
common
judge
law’s
that the trial
proceed
structions
first
liability,
1443.1 shield from state-law
evidentiary
pertinent
examine
materials
predecessor,
imposes
its
like
common-law
Sullivan-imposed
upon
condition
interposing
upon
duty
defendant
Price’s cause
action. The
scruti-
Sullivan
statutory privilege as an affirmative de-
ny
precede any
must
assessment of state-law
proving
and of
This
fense
elements.19
remand,
On
defenses.
due consideration
distinguishable
from the First
notion
given
requirements
should
Amendment-grounded
protection.20
Sullivan
place
plaintiff
onus
the entire
upon
places
The latter
a cause
condition
showing
defamatory
that the
communication
requires
for defamation which
action
protection
lies outside the zone of
afforded
plaintiff
allege
prove
that the defen-
Const,
by the
amend. 1.
knowledge
had
dant
of the communication’s
falsity
disregard
acted
reckless
B
truth.21
jurisprudence
Oklahoma’s extant
Sullivan
whose standards
*16
reflects
rule —
probative
today assay
the diverse allocation of
burdens
would
the court
have us
Walters’
16.
291 P.2d
St. Francis
Leavitt, Okl.,
ments v. Am. Nat.
(1984);
Scott, Okl.,
trial court. Toxic Waste
P.2d
Teel, Okl.,
ican
737,
sions of law are
manded with
13
When
(1993);
Ins.
740 n. 15
640,
Matter
Ass'n
necessary findings
766 P.2d
642
Hospital,
Matter
777 P.2d
890 P.2d
directions that
(1990);
(1984);
(1987); Sandpiper
(1955).
Bank, Okl.,
absent,
Indus.
Estate
Okl.,
Estate
394,
Robert L.
906,
Davis v.
999 n.
Com’n, Okl.,
Impact
the case must be re
861
399
913
of
Bartlett, Okl.,
P.2d
fact and
Pope,
Gwaltney,
Wheeler,
(1995); Dyke
(1989);
be made
Group,
(1988);
P.2d
North
295,
Okl.,
745 P.2d
conclu
Teel v.
Inc. v.
Inc.
300 n.
Apart
Amer
by
Okl.,
808
v.
v.
20. Sullivan
whether was false or not.”
note,
with ‘actual malice'—that
prove
that it was
See also Restatement
comment
shall set
tive defense.”
20.Any other matter of avoidance
"In
that the
pleading
[*]
e
U.S. at
forth
(1976).
requires
false
[*]
defamatory
to a
affirmatively:
or with
279-80,
[*]
preceding
that a
(Second)
(cid:127)!(cid:127)
“statement was made
reckless
summary judgment not—is liability trump state law— against by federal constitutional law but rather state —which summary support relief appli might have served to the rule’s which makes jurisprudence can- procedure State-law to the defendants. question law sole pre-submission cation rights. destroy not circumscribe ly judged.24 the trial judicial examination into state-law Isolated amply demonstrates The record high depreciat- a risk of defenses carries too judge never made an examination trial legal ing diminishing the full effect germane to a First evidentiary materials federal-law bars.26 related or interconnected analysis. His attention stood Amendment inherently It avoided as unsafe. defense affirmative confined Walters’ simply privilege. He on the based V (a) himself either
elected not to concern respon- probative allocation
the different аffirmative defenses sibility when state-law SUMMARY protection against constitutional and federal does Price’s action Walters While (b) with the liability are to be considered constitutionally about raise federal-law issues evidentiary relevant to the federal- materials protected speech, freedom of should be Price and Wal- questions raised both appeal. us in this Before of no concern to ters. summary judgment based is a statutory solely question on state-law IV dispositive to us as the privilege. Tendered jury right trial appeal is Price’s issue BE DE- CANNOT FEDERAL RIGHTS con- constitution. Had no under the state FEATED BY STATE FORMS from the flicting been affordable OF inferences record, IN PROCESSING PROCEDURE facts tendered uncontroverted Crittendon, OR DEFENSES in- CLAIMS have privilege, as That is pure question of law. deed been why reason There is another a fact not the case here. Because must stand and the cause judgment cannot truly fairly and exist—whether Walters does of Walters’ remanded for reconsideration bankruptcy proceedings reported the —the *17 In a defamation plea for relief. jury. presents an issue for the action, state-law defenses which both (a) right to se- deprived of his im- Price was interposed, impediments are federal pro- judge’s cure the trial examination material state- proper to reach and resolve (and others materials he tendered from the ten- bative in total isolation questions countered) that his claim to establish controlling law. Not dered issues another, also, Sullivan under but actionable only they impact on one do federal-law (b) standards, opportunity to of the valuable must not importantly, the former and more judicial scrutiny conducted free impair, impede, abridge or have be allowed to interfering state-law defenses effect of state law the latter.25 While under burden (c) by jury state- a trial on Walters’ to a trial was doubtless entitled I defense, Because view privilege. law defense of statutory privilege jury on Walters’ Alabama, U.S. v. Western R. Co. 580A com- Brown 24. See Restatement of Torts (Second) 105, 106, (1949). 294, 296, g. 94 L.Ed. ment 70 S.Ct. 131, 138, Casey, U.S. 108 S.Ct.
25. v. Felder problems In-depth exploration of the an 26. For 2302, 2306, (1988); L.Ed.2d 123 Monessen with state of federal created intermixture 330, Morgan, Ry. 486 U.S. Co. v. Southwestern Althouse, Separate rights, To Build A see How 1842-43, 1837, 335-36, 100 L.Ed.2d 108 S.Ct. Power, 100 479, Sphere: And State Lasker, Federal Courts (1988); Burks (1979); 60 L.Ed.2d 99 S.Ct. Harv. L. Rev. process seriously
summary-adjudication
flawed, prius judg- I reverse the nisi the cause for reconsidera-
ment and remand probative content
tion of the entire materials’ conformity principles
in strict set forth my dissent.
LCR, INC., corporation, an Oklahoma
Appellant, PROPERTIES,
LINWOOD an Oklahoma
general partnership, Linwood d/b/a/
Properties; Ralph Franklin; L. Charles Underwood; King;
E. Delbert J. Investments, general part-
Franklin
nership, Appellees.
No. 83939.
Supreme Court of Oklahoma.
June 1996.
As Corrected June