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Clardy v. Cowles Publishing Co.

filed: March 26, 1996.

JOHN D. CLARDY, APPELLANT,
v.
THE COWLES PUBLISHING COMPANY, A CORPORATION; BILL MORLIN, AND JOHN DOES ONE THROUGH TEN, RESPONDENTS.



Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 94-2-00319-9. Date filed in Superior Court: 10/24/94. Superior Court Judge signing: MARCUS KELLY.

Dennis J. Sweeney, Ray E. Munson & John A. Schultheis, concur

Author: Sweeney

SWEENEY, C.J.--A public figure must prove actual malice to recover for defamation. New York Times

Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964). A public figure is one who has attained special "prominence in the affairs of society." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). A person may be a public figure for all purposes or for a limited purpose. Gertz, 418 U.S. at 351.

John D. Clardy spearheaded the Mission Springs development, the biggest planned unit development ever proposed for Spokane County. It had an ultimate mortgage value of $45 million. On behalf of Mission Springs Limited Partnership, Mr. Clardy applied for mortgage insurance through the United States Department of Housing and Urban Development (HUD). The development ran into vocal public opposition after it had been approved, but before HUD had committed to insure financing. Mr. Clardy stepped into the hailstorm by attending a meeting with the opposition leader, speaking out in favor of the project, and contacting public officials, all in an attempt to keep the HUD commitment on track. We are asked to decide whether Mr. Clardy became a limited-purpose public figure by his involvement in the Mission Springs project. We conclude that he did and affirm the superior court's summary dismissal of his defamation claim.

FACTS

Two newspaper articles by The Spokesman Review reporter Bill Morlin prompted Mr. Clardy's defamation suit. The first, published on July 29, 1993, opened with the headline, "Tax felon to get HUD insurance -- Huge project under protest." Mr. Morlin reported that Mr. Clardy had been convicted of federal income tax evasion in 1980. He also reported that on behalf of landlords, Mr. Clardy had attempted to evict 400 families from their rental homes in California in 1972. Reporting on the Mission Springs project, Mr. Morlin told readers that Mr. Clardy had applied for $45 million in federal housing insurance,

that neighbors had opposed the project, and that Mr. Clardy had asked the director of the Department of Ecology (DOE) to fire one employee and discipline two others because they opposed the project.

A second article, published on December 14, 1993, was headlined, "Developer's address fictitious -- Mission Springs mortgagee lists bad address with HUD." In it Mr. Morlin reports that paperwork submitted to HUD on the Mission Springs project listed a fictitious address and the same fictitious address was used on Mission Springs "corporation papers." Mr. Morlin reported that corporate papers listed Mr. Clardy as secretary and partner in the Mission Springs project. Finally, he reported that HUD was not concerned about the nonexistent address.

Mr. Clardy sued Cowles Publishing Company, publisher of The Spokeman-Review, and Mr. Morlin (hereafter Cowles) for defamation in January 1994. Following a motion by Cowles, the court summarily dismissed Mr. Clardy's complaint. It concluded that Mr. Clardy was a limited-purpose public figure and therefore had to prove malice by clear and convincing evidence. And, he had failed to do so. Mr. Clardy appeals.

Discussion

A. Defamation

Proof of defamation requires a showing of (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. LaMon v. Butler, 112 Wash. 2d 193, 197, 770 P.2d 1027, cert. denied, 493 U.S. 814, 107 L. Ed. 2d 29, 110 S. Ct. 61 (1989); Mark v. Seattle Times, 96 Wash. 2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 73 L. Ed. 2d 1339, 102 S. Ct. 2942 (1982). When the plaintiff is a public figure or public official, the degree of fault required is actual malice. LaMon, 112 Wash. 2d at 197.

The question here is whether Mr. Clardy's role in and activities on behalf of Mission Springs made him a limited-purpose public figure. Cowles claims that it did. He claims it did not. That question is an issue of law;

review is therefore de novo. See Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966).

B. Limited-Purpose Public Figure

In New York Times, a plurality of the United States Supreme Court concluded that many traditional common law actions for defamation could interfere with First Amendment rights of free expression. To avoid such interference, it held that a public official could recover damages for defamation only if the official proved that a defamatory statement was made with "actual malice;" that is, with knowledge that the statement was false or with reckless disregard of its truth. New York Times, 376 U.S. at 279-80. Actual malice had to be proved with "convincing clarity." New York Times, 376 U.S. at 285-86.

Both the standard of fault--actual malice, and the standard of proof--convincing clarity, established in New York Times were later extended to public figures who were not public officials. Curtis Publishing Co. v. Butts, 388 U.S. 130, 154-55, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). Curtis, however, gave little guidance on the question of when a private citizen becomes a "public figure."

In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971), a plurality of the Court held that the actual malice standard should focus on "all discussion and communication involving matters of public or general concern," Rosenbloom, 403 U.S. at 44, rather than on the status of the person defamed:

If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not "voluntarily" choose to become involved.

Rosenbloom, 403 U.S. at 43.*fn1

The Rosenbloom Court's approach was rejected in

Gertz. In its place, Gertz set up two categories of public figures: limited-purpose public figures and general-purpose public figures. Limited-purpose public figures are those who voluntarily inject themselves or are drawn into a public controversy and thereby become public figures for a limited range of issues. Gertz, 418 U.S. at 351. The threshold question posed in Gertz is whether the defamatory statement involves a matter of public concern. The next focuses on the nature and extent of the plaintiff's participation in that public controversy. Gertz, 418 U.S. at 352 ("did he engage the public's attention in an attempt to influence its outcome" and did he "thrust himself into the vortex of this public issue"). While an individual ...


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