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02/20/97 SANDRA S. NELSON v. MCCLATCHY NEWSPAPERS

February 20, 1997

SANDRA S. NELSON, APPELLANT,
v.
MCCLATCHY NEWSPAPERS, INC., AND TACOMA NEWS, INC., RESPONDENTS.



Appeal from Superior Court, Pierce County. 93-2-06389-5. Honorable Vicki L. Hogan, Judge. Previously

Authored by Richard B. Sanders. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge. Chief Justice Durham and Justice Talmadge concur in the majority opinion.

The opinion of the court was delivered by: Sanders

En Banc

SANDERS, J. The issues in this case present two questions. *fn1 The first is whether the "Fair Campaign Practices Act," RCW 42.17.680(2), establishing campaign contribution limitations also prohibits an employer from discriminating against an employee because the employee refuses to remain politically abstinent? And, second, if RCW 42.17.680(2) does apply in such situations, does its application violate a newspaper's constitutionally guaranteed free press right to editorial control of the paper's content?

We find that RCW 42.17.680(2) does prohibit this employer from discriminating against an employee on the basis of the employee's refusal to remain politically abstinent. However, we conclude the statute cannot constitutionally apply to McClatchy Newspapers or The News Tribune (TNT) under the free press clause of the First Amendment to the United States Constitution.

The trial court's dismissal of Sandra Nelson's statutory and constitutional causes of action is, therefore, affirmed.

I. FACTS

Sandra Nelson began working as a reporter for TNT in 1983, three years before McClatchy Newspapers, Inc., purchased it. When McClatchy acquired TNT in 1986 it retained Nelson as a reporter. Nelson covered the "education beat" and focused on Tacoma schools as well as regional and state educational issues and, by all accounts, did a good job.

A fundamental goal of TNT, as a news publication, is to appear objective in the eyes of its readers. As part of this effort, TNT management put forth an ethics code in 1987 regulating activity deemed to present apparent or actual conflicts of interest. The ethics code defines conflicts of interest to include all situations in which readers might be led to believe that the news reporting is biased, including situations in which reporters participate in high profile political activity. Nelson's admitted violation of this code of ethics led to her transfer and the present suit.

Journalistic codes of ethics are common. In fact, most newspapers in the country have some form of code of conduct to minimize conflicts of interest. A 1983 study indicates that 75 percent of news organizations have similar codes in place. *fn2 For example, The Washington Post has a code nearly identical to TNT's stating in part that newsroom employees must "'avoid active involvement in any partisan causes politics, community affairs, social action, demonstrations that could compromise or seem to compromise our ability to report and edit fairly.'" Jason P. Isralowitz, The Reporter as Citizen: Newspaper Ethics and Constitutional Values, 141 U. Pa. L. Rev. 221, 222 n.7 (1992) (quoting Benjamin C. Bradlee, Standards and Ethics, in the Washington Post Deskbook on Style 1, 3 (Thomas W. Lippman ed., 2d ed. 1989)). Similarly, the Associated Press has a code containing nearly identical provisions including "Involvement in politics, demonstrations and social causes that could cause a conflict of interest, or the appearance of such conflict should be avoided." Clerk's Papers (CP) at 231-32. The code of ethics of the Society of Professional Journalists is also similar.

Nelson is a self-professed lesbian who spends much of her off-duty hours serving as a political activist. She attends political fora, demonstrations, and classes for political causes including highly visible support for gay and lesbian rights, feminist issues, and abortion rights. Nelson is also a member of and organizer for Tacoma Radical Women, a feminist socialist organization, and the Freedom Socialist Party. Much of her political activism has been supported by this party and has been in support of its party platform. McClatchy knew of Nelson's political activities when it chose to retain her.

In 1987, Nelson was seen by a TNT reporter and photographer as she was picketing for abortion rights outside a local hospital. TNT management told her such activity compromised the paper's appearance of objectivity. Nelson responded she would continue her public political activity anyway.

In 1989, Nelson helped launch a ballot initiative to have an antidiscrimination ordinance reinstated following its repeal. Throughout 1990 she visibly promoted the initiative by organizing volunteers, soliciting support from various groups, arranging for community speakers, organizing rallies, and collecting signatures for the initiative. The initiative battle remained a major political story throughout the year and increasingly so as the fall election approached. On August 15, 1990, TNT's editors informed Nelson that she would be transferred from her position as education reporter to swing shift copy editor until after the November election. TNT stated that Nelson's activities violated the ethics code and raised concern about TNT's appearance of objectivity.

A swing shift copy editor is a nonmanagerial position requiring the same general qualifications as a reporter. Nelson maintained her salary, benefits, and seniority and edited a wide variety of local and national stories. However, she was required to work nights and weekends and was no longer a beat reporter investigating and writing stories. Nelson's transfer became permanent when she refused to promise future conformity with the ethics code.

Nelson remained politically active. For example in 1994 she actively opposed a ballot initiative which would have prevented municipalities from extending civil rights to gays and lesbians. Also in 1994 she testified before the state Legislature on behalf of the "Stonewall Committee" in support of a gay and lesbian civil rights bill. The story received front page coverage in TNT and most other state newspapers. TNT was initially alerted by a legislator who knew Nelson as a TNT employee and contacted TNT to ask if Nelson was lobbying the Legislature on TNT's behalf. TNT's editors wrote to Nelson that "We are dismayed and concerned that you have taken your political activism to a new and larger arena." CP at 405. The editors also wrote that such activity jeopardized the credibility of TNT in the eyes of its readers and the Legislature alike. They told Nelson that their discomfort had nothing to do with the content of her politics as, indeed, TNT has on several occasions adopted pro-gay positions in its editorials. TNT concluded by informing Nelson that if her political activism further compromised the paper's credibility, it would be forced to "further isolate" her and to "take appropriate disciplinary action." CP at 405.

Nelson requested TNT to reinstate her as reporter. In October 1993 she wrote to her supervisor requesting her reinstatement and she later applied for a position as reporter. In January 1995 she sent TNT a letter asking to be considered for what she asserted was an unannounced opening as education reporter. *fn3 Since Nelson's transfer, TNT has hired nine reporters to cover various topics. Nelson alleged that it was made clear that the positions would remain closed to her so long as she continued her high profile political activism. TNT responded that Nelson never applied for any open position; however, for the purpose of this opinion we will assume the truth of Nelson's allegations.

After unsuccessfully pursuing redress in a federal forum, Nelson filed suit in Pierce County Superior Court alleging TNT improperly stripped her of her position as reporter. Nelson alleged TNT: (a) violated RCW 42.17.680(2) of the Fair Campaign Practices Act, which Nelson claims prohibits employers from discriminating against employees based on their support of initiatives, political parties or political committees; (b) violated several provisions of the state constitution including article I, section 5 (free speech), article I, section 4 (freedom to assemble and petition government), article I, section 19 (guarantee of free elections), and article II, section 1 (popular right to initiative); (c) breached her employment contract because she was transferred without good cause; and (d) wrongfully transferred her because it is against public policy to forbid employees from participating in off-duty political activity. The trial court granted summary judgment to TNT on Nelson's claim under RCW 42.17.680 and on all her constitutional claims. The remaining breach of employment and wrongful transfer claims survived and are scheduled for trial on remand. Thus, the issue before this court is the propriety of the trial court's summary judgment dismissal of Nelson's statutory and constitutional claims. II. DOES RCW 42.17.680(2) APPLY?

Nelson asserts that RCW 42.17.680(2) applies. We agree.

RCW 42.17.680(2) states in full:

No employer or labor organization may discriminate against an officer or employee in the terms or conditions of employment for (a) the failure to contribute to, (b) the failure in any way to support or oppose, or (c) in any way supporting or opposing a candidate, ballot proposition, political party, or political committee. (Emphasis added.)

Nelson asserts the statute is clear on its face and applies in her case. A fundamental rule of construction is, absent ambiguity, the plain wording of the statute controls. Anderson v. City of Seattle, 123 Wash. 2d 847, 851, 873 P.2d 489 (1994). Thus, the statute prohibits discrimination based on an employee's "supporting or opposing a candidate, ballot proposition, political party, or political committee." RCW 42.17.680(2).

The issue is whether an employee who is discriminated against for refusing to abstain from political involvement fits within the statutory language of someone removed for "supporting or opposing" a ballot initiative, political party or committee. There is little outside guidance on the meaning of the provision in question and there is no case law interpreting the statute. The original version of the initiative came out of the state senate as Engrossed Substitute Senate Bill 5864, and the legislative history of intent is scarce there as well. A staff memo circulated to the senate committee originally overseeing the bill stated that, amongst other things, the bill would prohibit employers from "discriminating against employees on the basis of their political activity." Senate Comm. Staff Memorandum, Campaign Contributions & Expenditures: Highlights of Proposed Sub. S.B. 5864, at 2 (Mar. 5, 1991). Newspaper articles and editorials *fn4 published during the ...


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