Price v. Walters , 67 O.B.A.J. 1818 ( 1996 )

OPALA, Justice,

with whom ALMA WILSON, Chief Justice and LAVENDER and HARGRAVE, Justices, join, dissenting.

Holding that the press release in issue is a fair and true report of two separate judicial proceedings,¹ the court affirms a nisi prius summary judgment which extends the protection of the 12 O.S.1991 § 1443.1² statutory privilege to Walters and Hoover [collectively called ‘Walters”]. I must recede from the court’s pronouncement because its analysis (á) is in discord with my notions of Price’s right to a trial by jury under the state constitution and (b) rests in part upon evidentiary materials the trial judge did not examine in reaching his decision.

This case is neither about state or federal constitutional protection of political speech nor about the rules of engagement that govern election contests between rival candidates for a political office. What engages us in this appeal is solely the procedure that was Price’s due when Walters’ quest for relief by summary judgment came under the trial court’s scrutiny.

I

THE ANATOMY OF LITIGATION

The summary judgment before us today rests solely on Walters’ state-law statutory defense of privilege.³ Evidentiary materials in the record — insofar as they relate to federal constitutional impediments to Walters’ liability ⁴ (and the concomitant lack of actual malice) or to the affirmative state-law defenses based on common-law privilege of fan-comment, estoppel or waiver — did not undergo judicial examination at nisi prius.

II

ALTHOUGH SUMMARY JUDGMENT BASED ON OTHER GROUNDS(REFLECTED IN THE PROBATIVE MATERIALS) MIGHT HAVE PASSED OUR MUSTER, IT CANNOT BE RESTED ON THE BAR OF § 1443.1 PRIVILEGE

The court today intermixes the affirmative defense of § 1443.1 privilege with the zone of protection afforded under the First Amendment-grounded New York Times Co. v. Sullivan⁵ and its progeny to affirm summary judgment for Walters. In this process, 'the separate and distinct origins and outer limits of these concepts become distorted and misshaped. Our focus is drawn away from the stubborn fact that the trial judge failed to examine the probative materials in the record with a view to measuring their sufficiency for summary adjudication based on the tendered federal-law questions.

A

Conñicting Inferences May Be Drawn From Uncontroverted Facts On Which Walters Relied For Summary Judgment On His § 1443.1 Defense

The trial court’s denial of a jury trial on the issue of privilege rests on Walters’ materials tendering undisputed facts from which, in my view, conflicting inferences may be drawn. This posture of the record calls for application of the general rule that whenever uncontroverted proof lends support to conflicting inferences, the choice to be made between opposite alternatives presents an issue of fact for the trier.⁶

One of the § 1443.1 privilege’s elements is that the report of the judicial proceeding be “fair and true”.⁷ Some of the remarks said to defame Price were drawn from the record in Seneca Oil Company’s bankruptcy. Price was not a party to this proceeding. Whether Walters’ characterization of the bankruptcy proceedings was fair and true presents a question of fact to be resolved by a jury.

B

The Notion Of Extending Disparate Procedural Treatment To Similarly Situated Litigants Offends The Procedural Symmetry Mandated By Art. 5, § 46, Okl. Const.

Relying on Crittendon v. Combined Communications Corp.,⁸ the court holds that when facts concerning the defamatory communication in suit are undisputed, the § 1443.1 privilege presents a question of law which should be decided by the trial judge. This analysis stops short of accuracy. Crit-tendon does not teach that the § 1443.1 privilege, when interposed, presents an issue of law in all cases. What it says is that, because the undisputed facts in Crittendon did not support opposite inferences, their submission to the jury would have been unwarranted. Crittendon — a controlling precedent in which I concurred and whose teachings I continue to embrace enthusiastically — is fully consistent with both my analysis today and that found in the dissent by Hargrave, J.

Whether a jury trial on Walters’ affirmative defense of statutory privilege was Price’s due is an issue of state law to be governed by Art. 2, § 19, Okl. Const.⁹ It is not a question to be resolved by reliance on federal jurisprudence construing the U.S. Const, amend. 7.¹⁰ Oklahoma remains totally free from all restraints the Seventh Amendment imposes on the judiciary of the Federal Republic.¹¹

Today’s extension of a different procedural treatment to plaintiffs countering a § 1443.1-privilege defense from, that accorded other litigants — who stand entitled to a jury trial because opposite inferences on uncontrovert-ed facts are tendered by their cases — destroys the symmetry of Oklahoma’s remedial regime and offends the uniformity-of-procedure mandate of Art. 5, § 46, Okl. Const.¹² Even though Walters might ultimately prevail on his interposition of federal-law impediments to liability, today’s short cut denies Price the fundamental fairness that is to be afforded by the framework of orderly process.¹³

Walters’ summary judgment rests on the single bar of the state law’s statutory privilege. Although a trial court’s decision, if correct, may be affirmed on a theory different from that articulated below,¹⁴ this case must be remanded because — among other reasons to be stated later in my dissent — the interposed bar of § 1443.1 privilege presents fact issues which were not, but should have been, submitted to a jury.

C

Appellate Courts Must Not Make First-Instance Determinations

The record reflects that the trial judge did not examine the probative materials with a view to determining if Walters’ opinions of the judicial proceedings, whether accurate or not, may be afforded protection under the U.S. Const, amend. I.¹⁵ Appellate courts cannot make first-instance determinations of either law or fact. That is the trial court’s function in every case.¹⁶

Ill

THE NATURE OF A 12 O.S.1991 § 1443.1¹⁷ PRIVILEGE AND THE RIGHT TO TRIAL BY JURY A

The historical antecedents of the affirmative defense of privilege — accorded by the terms of § 1443.1 to those who fairly and truthfully report judicial proceedings — lie in the common law’s fair report privilege.¹⁸ The § 1443.1 shield from state-law liability, like its common-law predecessor, imposes upon the defendant the duty of interposing the statutory privilege as an affirmative defense and of proving its elements.¹⁹ This notion is distinguishable from the First Amendment-grounded Sullivan protection.²⁰ The latter places a condition upon a cause of action for defamation which requires the plaintiff to allege and prove that the defendant had knowledge of the communication’s falsity or acted in reckless disregard of the truth.²¹

Oklahoma’s extant jurisprudence reflects the diverse allocation of probative burdens (1) when plaintiffs bring causes of action in which a federal constitutional impediment is implicated and (2) when defendants raise state-law affirmative defenses.²² It teaches that whenever a law’s provisions would exonerate a defendant from liability on a claim, the plaintiff must bear the probative responsibility for showing that the case does not fall within the exemption that shields the defendant.²³

This difference in probative burdens militates strongly in favor of remand with instructions that the trial judge first proceed to examine the evidentiary materials pertinent to the Sullivan-imposed condition upon Price’s cause of action. The Sullivan scrutiny must precede any assessment of state-law defenses. On remand, due consideration should be given to the requirements that place on the plaintiff the entire onus of showing that the defamatory communication lies outside the zone of protection afforded by the U.S. Const, amend. 1.

B

The Sullivan rule — by whose standards the court would have us today assay Walters’ summary judgment — is not governed by state law but rather by federal constitutional jurisprudence which makes the rule’s application a pre-submission question of law solely for the trial judged.²⁴

The record amply demonstrates that the trial judge never made an examination of the evidentiary materials germane to a First Amendment analysis. His attention stood confined to Walters’ affirmative defense based on the § 1443.1 privilege. He simply elected not to concern himself either (a) with the different allocation of probative responsibility when state-law affirmative defenses and federal constitutional protection against liability are to be considered or (b) with the evidentiary materials relevant to the federal-law questions raised by both Price and Walters.

IV

FEDERAL RIGHTS CANNOT BE DEFEATED BY STATE FORMS OF PROCEDURE IN PROCESSING CLAIMS OR DEFENSES

There is another reason why summary judgment cannot stand and the cause must be remanded for reconsideration of Walters’ plea for summary relief. In a defamation action, in which both state-law defenses and federal impediments are interposed, it is improper to reach and resolve material state-law questions in total isolation from the tendered issues of controlling federal law. Not only do they impact on one another, but also, and more importantly, the former must not be allowed to impair, impede, abridge or burden the latter.²⁵ While under state law Price was doubtless entitled to a trial by jury on Walters’ statutory privilege defense, the latter’s federal constitutional shields against liability — which trump state law— might have served to support summary relief to the defendants. State-law procedure cannot circumscribe or destroy federal rights. Isolated judicial examination into state-law defenses carries too high a risk of depreciating and diminishing the full legal effect of related or interconnected federal-law bars.²⁶ It is to be avoided as inherently unsafe.

V

SUMMARY

While Price’s action against Walters does raise federal-law issues about constitutionally protected freedom of speech, that should be of no concern to us in this appeal. Before this court is a summary judgment based solely on a state-law question of statutory privilege. Tendered to us as the dispositive issue on appeal is Price’s right to a jury trial under the state constitution. Had no conflicting inferences been affordable from the uncontroverted facts tendered by the record, privilege, as in Crittendon, would have indeed been a pure question of law. That is not the case here. Because a fact question does exist — whether Walters fairly and truly reported the bankruptcy proceedings — the case presents an issue for the jury.

Price was deprived (a) of his right to secure the trial judge’s examination of the probative materials he tendered (and others countered) to establish that his claim was actionable under the federal-law Sullivan standards, (b) of the valuable opportunity to have that judicial scrutiny conducted free of the interfering effect of state-law defenses and (c) of a trial by jury on Walters’ state-law defense of privilege. Because I view the summary-adjudication process as seriously flawed, I would reverse the nisi prius judgment and remand the cause for reconsideration of the entire probative materials’ content in strict conformity to the principles set forth in my dissent.

1 . The legal actions described in the press release are (1) Seneca Oil Company, Seneca Exploration Company, Harry M. Diamond, Inc., Par Oil Company, Eason Oil Company, Ladd Petroleum Company, Southland Royalty Company, Robert L. Adair, William S. Price as Trustee for Joel S. Price, Virginia K. Price Trust, Samuel F. Wilson, Jr., Bill J. Sparks and Lou Holtz v. U.S. Department of Energy, U.S. District Court for the Western District of Oklahoma, Case No. 81-215-T and (2) In re Seneca Oil Company, U.S. Bankruptcy Court for the Western District of Oklahoma, Case No. BANKR-85-825-A.

2 .The pertinent terms of 12 O.S.1991 § 1443.1 are:

“A. A privileged publication or communication is one made:

* * * * * *

Third. By a fair and true report of any ... judicial ... proceeding authorized by law, or anything said in the course thereof, and any and all expressions of opinion in regard thereto, and criticisms thereon, and any and all criticisms upon the official acts of any and all public officers, except where the matter stated of and concerning the official act done, or of the officer, falsely imputes crime to the officer so criticized.” [Emphasis mine.]

3 . For the statutory text creating this privilege, see supra note.

4 . For a discussion of the constitutional impediments to liability in issue, see infra section II A.

5 . 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964).

6 . Gray v. Holman, Okl., 909 P.2d 776, 781 (1995); Jackson v. Jones, Okl., 907 P.2d 1067, 1071 (1995); Wetsel v. Independent School Dist. I-I, Okl., 670 P.2d 986, 991 (1983); Thomas v. Hensel Optical Labs, Okl., 653 P.2d 201, 203 (1982); Holland v. Dolese Co., Okl., 643 P.2d 317, 320 (1982); Flick v. Crouch, Okl., 434 P.2d 256, 261 (1967); Morain v. Lollis, Okl., 371 P.2d 473, 475 (1962); Mistletoe Express Service v. Culp, Okl., 353 P.2d 9, 12 (1960).

7 . For the pertinent terms of 12 O.S.1991 § 1443.1, see supra note. For a discussion of the fair-and-accurate requirement of the common-law "reporter's privilege”, see Restatement (Second) of Torts § 581A comment j; see also Wright v. Grove Sun Newspaper Co., Inc., Okl., 873 P.2d 983, 992 (1994).

8 . Okl., 714 P.2d 1026, 1028 (1986).

9 . The pertinent provisions of Art. 2, § 19, Okl. Const., are:

"The right to trial by jury shall remain inviolate, except in civil cases wherein the amount in controversy does not exceed One Thousand Five Hundred Dollars....”

10 . The U.S. Const, amend. 7 states:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law."

11 . Wilson v. Foster, Okl., 595 P.2d 1329, 1331 (1979); Chicago, R.I. & P.R. Co. v. Cole, 251 U.S. 54, 40 S.Ct. 68, 64 L.Ed. 133 (1919); Maryland National Insurance Co. v. District Court, Okl., 455 P.2d 690, 692 (1969).

12 . The terms of Art. 5 § 46, Okl. Const., state in pertinent part:

"The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

* * * ⅜ * *

Regulating the practice or jurisdiction of ... in judicial proceedings or inquiry before the courts ... or other tribunals_" [Emphasis supplied.]

See Reynolds v. Porter, Okl., 760 P.2d 816, 822 (1988); Maule v. Independent School Dist. No. 9., Okl., 714 P.2d 198, 203-204 (1986). See also Brown v. Ford, Okl., 905 P.2d 223, 228 (1995); Simpson v. Dixon, Okl., 853 P.2d 176, 183 (1993); Tate v. Browning-Ferris, Inc., Okl., 833 P.2d 1218, 1229 (1992); Johnson v. District Court of Oklahoma County, Okl., 738 P.2d 151, 154 (1987)(Opala, J., concurring).

13 . Rodgers v. Higgins, Okl., 871 P.2d 398, 414 (1993); Snyder v. Smith Welding & Fabrication, Okl., 746 P.2d 168, 171 (1986); Pryse Monument Co. v. District Court of Kay County, Okl., 595 P.2d 435, 438 (1979). See also Handy v. City of Lawton, Okl., 835 P.2d 870, 880 (1992)(Opala, J„ dissenting in part).

14 . Wright, supra note at 992; Willis v. Nowata Land and Cattle Co., Okl., 789 P.2d 1282, 1286-87 (1990); Davidson v. Gregory, Okl., 780 P.2d 679, 685 n. 23 (1989); Utica Nat’l Bank and Trust v. Assoc. Prod., Okl., 622 P.2d 1061, 1066 (1981); Holloway v. Ward, 84 Okl. 247, 203 P. 217, 219 (1922).

15 . The First Amendment, U.S. Const., states in pertinent part that "Congress shall make no law ... abridging the freedom of speech....”

16 . When necessary findings of fact and conclusions of law are absent, the case must be remanded with directions that they be made by the trial court. Toxic Waste Impact Group, Inc. v. Leavitt, Okl., 890 P.2d 906, 913 (1995); Dyke v. St. Francis Hospital, Okl., 861 P.2d 295, 300 n. 13 (1993); Matter of Estate of Pope, Okl., 808 P.2d 640, 642 (1990); Robert L. Wheeler, Inc. v. Scott, Okl., 777 P.2d 394, 399 (1989); Teel v. Teel, Okl., 766 P.2d 994, 999 n. 19 (1988); American Ins. Ass'n v. Indus. Com’n, Okl., 745 P.2d 737, 740 n. 15 (1987); Sandpiper North Apartments v. Am. Nat. Bank, Okl., 680 P.2d 983, 993 (1984); Matter of Estate of Bartlett, Okl., 680 P.2d 369, 377 (1984); Davis v. Gwaltney, Okl., 291 P.2d 820, 824 (1955).

17 . For the pertinent terms of 12 O.S.1991 § 1443.1, see supra note.

18 . The scope of the § 1443.1 privilege is narrower than that of the common law's fair report privilege. For the distinctions between the two privileges, see Wright, supra note at 987; for a history of the common law's fair report privilege, see id. at 985 n. 1. See also Restatement (Second) of Torts §611.

19 . See 12 O.S.1991 § 2008(C)(20), whose pertinent terms are:

"In pleading to a preceding pleading, a party shall set forth affirmatively:

* * * •!• 4s #

20.Any other matter of avoidance or affirmative defense.”

See also Restatement (Second) of Torts § 580A comment e (1976).

20 . Sullivan requires that a public person must prove that the defamatory “statement was made with ‘actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Sullivan, supra note, 376 U.S. at 279-80, 84 S.Ct. at 725-26.

21 . Id.; see also Restatement (Second) of Torts § 580A comments e and g.

22 . North v. Haskett, 202 Okl. 146, 211 P.2d 279, 282 (1949). While Haskett predates the enactment of Oklahoma’s most recent Pleading Code, its holding is still viable insofar as it addresses the proper allocation of probative responsibilities.

23 . Id. at 282.

24 . See Restatement (Second) of Torts § 580A comment g.

25 . Felder v. Casey, 487 U.S. 131, 138, 108 S.Ct. 2302, 2306, 101 L.Ed.2d 123 (1988); Monessen Southwestern Ry. Co. v. Morgan, 486 U.S. 330, 335-36, 108 S.Ct. 1837, 1842-43, 100 L.Ed.2d 349 (1988); Burks v. Lasker, 441 U.S. 471, 479, 99 S.Ct. 1831, 1838, 60 L.Ed.2d 404 (1979); Brown v. Western R. Co. of Alabama, 338 U.S. 294, 296, 70 S.Ct. 105, 106, 94 L.Ed. 100 (1949).

26 . For an In-depth exploration of the problems created by intermixture of federal with state rights, see Althouse, How To Build A Separate Sphere: Federal Courts And State Power, 100 Harv. L. Rev. 1485, 1533 (1987).