Appeal from the United States District Court for the Central District of California. D.C. No. CV-88-4762-ER. Edward Rafeedie, District Judge, Presiding.
Before: Thomas Tang, Stephen Reinhardt, and Charles Wiggins, Circuit Judges. Opinion by Judge Tang; Concurrence by Judge Reinhardt.
In August 1984, The Arizona Republic published an article describing an ongoing investigation by a congressional committee and the Department of Justice into alleged corruption by James Henderson and Richard Crane, Jr., the then current and former heads, respectively, of the Justice Department's Los Angeles Organized Crime and Racketeering Strike Force ("Strike Force"). Crane and Henderson subsequently filed a lawsuit in California state court seeking damages for libel, slander, and intentional infliction of emotional distress. The state court denied the defendants' motion for summary judgment. The defendants removed the case to federal court and filed a second motion for summary judgment, which was granted. Crane and Henderson appeal. We affirm in part, and vacate and remand in part.
In the spring of 1983, the U.S. House of Representatives' Select Committee on Narcotics Abuse and Control ("Committee") received allegations of corruption by Henderson and Crane. Crane, a private attorney, had previously headed the Strike Force for thirteen years. Henderson, a friend and former colleague of Crane, was at the helm of the Strike Force at the time the charges of corruption arose.*fn1 The charges were levelled by Jerry Vann, an incarcerated felon enrolled in the federal witness protection program. Vann had previously served as a successful witness in numerous Strike Force investigations and prosecutions.
Vann claimed that Crane and Henderson had ties to organized crime and that this linkage underlay the dismissal of numerous meritorious criminal cases by the Strike Force. Vann also alleged that Crane's current clients were organized crime figures and that Crane used his friendship with Henderson to halt Strike Force investigations of his clients. Vann referred specifically to the government's failure to prosecute an alleged Hawaiian crime chief, who was the target of two separate criminal investigations (Operations Fireball and CoCo). Vann attributed the lack of prosecution to the efforts of Henderson, Crane, and others.
After receiving these allegations, Representative Charles Rangel, Chair of the Committee, and Representative Benjamin Gilman, asked Sterling Johnson, Jr. to conduct a preliminary investigation into Vann's charges and to recommend whether further investigation would be worthwhile.*fn2
After interviewing Jerry Vann and others Vann named to corroborate his charges, Johnson summarized his findings for the Committee. He began by describing Vann's criminal background, history of cooperation with prosecutors, and his subsequent feeling of betrayal by them. Johnson then recited Vann's main allegations:
(1) Crane supervised the Strike Force for thirteen years.
(2) Crane is currently the attorney for the Aladdin Hotel Casino in Las Vegas and owns "points" in the Barbary Coast Casino.
(3) Vann stated that "Crane's clients are organized crime figures. When Crane's clients have problems with the Los Angeles Strike Force, they are rarely touched because the current Chief (Jim Henderson) is a friend and former subordinate of [Crane's]."
(4) Vann described Henderson as a personal friend of Crane. Vann characterized Henderson as "unusually soft on organized crime and corruption." Vann cited alleged corruption by Governor Jerry Brown and George Deukmejian as examples of Henderson's softness on corruption.
(5) Vann stated that the Strike Force had jurisdiction over Hawaii.
(6) Vann submitted documents to Johnson intended to corroborate his story.
Johnson also talked with Chris Harris, an Alcohol, Tobacco, and Firearms Agent, and with George Cooper, a member of the Los Angeles Arson Task Force. Harris disagreed with Vann's claim that the Strike Force was corrupt, although he did label "unusual" the Strike Force's delays in prosecutions.
Cooper, according to Johnson, "appeared to really want to 'open up' " but would not do so in front of Harris. Cooper reportedly was quite upset when he discussed an investigation he completed in which the Strike Force delayed four years in obtaining an indictment.
Hal Glickman, a former bail bondsman, confirmed for Johnson that a major organized crime figure had some Strike Force personnel "in his pocket."
Ron Cohen, a prosecutor for Los Angeles's own strike force, told Johnson that he knew "of no personal improprieties in the Federal Strike Force."
Mark Schorr, a reporter, advised Johnson that "there is probably something to many of Vann's allegations."
After reviewing Johnson's report, John Cusack (Chief of Staff of the House Committee), Representative Rangel, and Johnson all agreed that the allegations were credible and warranted a full investigation. In November 1983, Representative Rangel wrote a letter to United States Attorney General William French Smith on behalf of the Committee. The letter described the Committee's investigation and Vann's allegations. As Chair of the Committee, Representative Rangel "strongly urged" the Attorney General "to undertake a vigorous investigation" of the matter.
Less than two weeks after receiving the Committee's letter, the Justice Department commenced an investigation into the charges. The Committee also continued its own investigation. In January 1984, the Committee sent its Chief Counsel, Richard Lowe III, and a staff investigator, John Capers, to Hawaii to interview Donald Carstensen, an investigator for Honolulu's organized crime task force. In their report, Lowe and Capers stated that "Officer Carstensen substantiated the allegations of Jerry Vann." Officer Carstensen also complained about numerous dismissals of cases against alleged organized crime figures by the local U.S. Attorney's Office and the state Attorney General. Lowe and Capers both believed that the Strike Force had jurisdiction over or played some role in Operations Fireball and CoCo in Hawaii. A letter written by Lowe to the Justice Department revealed that the Committee believed this new information "reinforced the allegations made by Mr. Vann."
In June 1984, Vann contacted Jerry Seper, a reporter for The Arizona Republic. Vann advised Seper of his allegations concerning corruption in the Strike Force. Vann provided Seper with copies of Johnson's report, a November 1983 letter from the Justice Department to the Committee confirming that it would investigate the charges, and a case report by Capers. During his Discussion of the allegations, Vann told Seper that he thought Crane and Henderson both were "unusually soft" on organized crime and that the two prosecutors were friends or associates of certain organized crime figures.
Seper subsequently received from a confidential source at the Committee copies of Chair Rangel's letter to the Justice Department and a report on the Carstensen interview. Committee Chief of Staff Cusack confirmed the authenticity of these reports. Cusack also stated that "We wouldn't have taken the trouble to write the letter [to the Justice Department] if we didn't think there was a problem. We just don't write letters like that every day."
Seper contacted James Henderson on June 10, 1984. Henderson denied the charges and denied any knowledge of the Committee's investigation. He told Seper that the Strike Force had no jurisdiction over Hawaii. Henderson also submitted documents that he believed would expose Vann's allegations as untrue. Although Seper told Henderson he would delay publishing his article until he reviewed these materials, Seper published without reading them. Seper also told Henderson that he was considering doing a story on how such "outrageous allegations" could be made to a congressional committee.
Seven weeks later, Seper spoke with Crane who likewise denied the allegations and labelled Vann a "kook." Crane claimed to have documents that could disprove Vann's allegations. As Henderson had done, Crane advised Seper that the Strike Force had no jurisdiction over Hawaii. According to Crane, Seper admitted he had doubts about the veracity of Vann's charges and agreed to review Crane's records prior to publishing. Seper, however, published without reviewing Crane's documents.
Seper's article was published in The Arizona Republic on August 1, 1984, under the headline U.S. Crime Strike Force in L.A. Accused of Corruption. The article relied on allegations and statements made in the Committee's documents and on statements made by Crane, Henderson, and other persons involved in the investigation.
In July 1985, Crane and Henderson filed a libel action in California state court against The Arizona Republic, Seper, and others involved in the publication (collectively, " The Arizona Republic "). In April 1987, The Arizona Republic moved for summary judgment, which was denied. In August 1988, The Arizona Republic removed the case to federal district court and again requested summary judgment, which the district court granted.*fn3
The district court granted summary judgment for The Arizona Republic because the article was absolutely privileged under Cal. Civ. Code § 47(4).*fn4 With respect to Henderson, the district court alternatively grounded its dismissal on the lack of clear and convincing evidence of actual malice. As an active, high-level prosecutor at the time of publication, Henderson qualified as a public official, thereby activating the rigorous standard of proof mandated by New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). The district court concluded that Crane did not qualify as a public official because he was in private practice at the time the article came out and because the charges focused on his activities as a private lawyer.
Henderson and Crane filed a timely notice of appeal to this court.
We review de novo the district court's grant of summary judgment. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937, 110 S. Ct. 3217, 110 L. Ed. 2d 664 (1990). In the First Amendment context, the particular question presented by a summary judgment motion is "whether the evidence in the record could support a reasonable jury finding . . . that the plaintiff has shown actual malice by clear and convincing evidence." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In other words, in determining whether a genuine factual issue exists in this case, we "must bear in mind the actual quantum and quality of proof necessary to support liability under [the] New York Times standard." Id. at 254. We "must make an independent examination of the whole record" in order to protect the right of free expression. New York Times, 376 U.S. at 285 (internal quotation omitted).
Whether a report of the Committee's investigation falls under Cal. Civ. Code. § 47(4)'s umbrella is a question of statutory interpretation and is thus subject to de novo review. See Home Sav. Bank, F.S.B. v. Gillam, 952 F.2d 1152, 1156 (9th Cir. 1991).
The parties argue over whether application of the "fair and true" aspect of section 47(4)'s privilege is a question of law or of fact. We have recently ruled that when, as here, there is no dispute concerning the contents of either the governmental materials relied upon or the article itself, whether an article is "fair and true" is a question of law. Dorsey v. National Enquirer, Inc., 952 F.2d 250, 254 (9th Cir. 1991). As a question of law, the district court's ruling is subject to de novo review in this court. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46, 105 S. Ct. 101 (1984).
Whether a plaintiff qualifies as a public official is a question of law to be afforded de novo review. Rosenblatt v. Baer, 383 U.S. 75, 88, 15 L. Ed. 2d 597, 86 S. Ct. 669 (1966); see Kruso, 872 F.2d at 1421. Whether the evidence in the record is sufficient to permit the question of actual malice to go to a jury is a question of law that we review de novo. See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 105 L. Ed. 2d 562, 109 S. Ct. 2678 (1989).
I. Cal. Civ. Code. § 47(4)
California Civil Code § 47(4) ...