Lewis v. Oliver

NOYES, Judge,

dissenting:

I respectfully dissent from the majority’s conclusion that “plaintiff presented evidence sufficient to create a jury question on whether the defendant acted with actual malice.” Swpra p. -, 873 P.2d p. 670.

I.

In a defamation action by a public-figure plaintiff, “actual malice” has a special meaning and a heightened standard of proof.

The burden of proving “actual malice” requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement.

Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 511 n. 30, 104 S.Ct. 1949, 1965 n. 30, 80 L.Ed.2d 502 (1984).

The “clear and convincing evidence” standard applies at the summary judgment stage of the proceedings. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257,106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). If the evidence presented at the summary judgment stage “is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence,” then the defendant should be granted summary judgment because the evidence is insufficient as a matter of law and th^re is no reason for a trial. Id. at 254, 106 S.Ct. at 2513.

Our duty as an appellate court is to “examine the entire record and make an independent decision as to whether there is clear and convincing evidence to support a finding of [actual] malice.” Starkins v. Bateman, 150 Ariz. 537, 539, 724 P.2d 1206, 1208 (App. 1986); see also Bose, 466 U.S. at 514, 104 S.Ct. at 1967. Having independently examined the entire record, I conclude that the evidence presented is insufficient for a reasonable jury to find that “actual malice had been shown with convincing clarity.” Anderson, 477 U.S. at 257, 106 S.Ct. at 2515.

II.

Lewis made four arguments regarding evidence of “actual malice,” and the majority agreed with all of them. Three of these arguments were based on Oliver’s bad motive or ill will: 1) Oliver was “out to get” Lewis, 2) Oliver exhibited a pattern of defaming and intimidating individuals who criticized his company, and 3) Oliver’s actions were malicious revenge because Lewis uncovered safety problems at Oliver’s company. The majority concludes that this evidence of bad motive or ill will, by itself, is “sufficient to create a jury question as to whether Oliver’s accusations were knowingly false.” Supra p. 337-338, 873 P.2d p. 675-676.

The majority cites Currier v. Western Newspapers, Inc., 175 Ariz. 290, 293-94, 855 P.2d 1351, 1354-55 (1993) in support of its conclusion that evidence of bad motive is evidence of “actual malice.” See supra p. 337, 873 P.2d p. 675. Currier is ambiguous support for the proposition for which it is cited. Currier cited Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667-68, 109 S.Ct. 2678, 2686, 105 L.Ed.2d 562 (1989), for the general proposition that “evidence concerning motive is relevant to actual malice.” ⁴ See Currier, 175 Ariz. at 294, 855 P.2d at 1355. To say that evidence can be relevant to actual malice is not to say that it can be clear and convincing proof of actual malice. For our purposes, the proposition for which Currier cites Harte-Hanks is not nearly as instructive as other language directly from Harte-Hanks: |

It also is worth emphasizing that the actual malice standard is not satisfied merely through a showing of ill will or “malice” in the ordinary sense of the term.7

n-7The trial judge correctly instructed the jury that “[ajctual malice may not be inferred alone from evidence of personal spite, ill will or intention to injure on the part of the writer.”

The phrase “actual malice” is unfortunately confusing in that it has nothing to do with bad motive or ill will.

Harte-Hanks, 491 U.S. at 666, 109 S.Ct. at 2685 (citations omitted).

I respectfully suggest that it would be clear error for a trial court to instruct a jury that it could do what the majority has done in this opinion, infer “actual malice” solely from evidence of bad motive or ill will. “Instructions which permit a jury to impose liability on the basis of the defendant’s hatred, spite, ill will, or desire to injure are ‘clearly impermissible.’ ‘[I]ll will toward the plaintiff, or bad motives, are not elements of the New York Times standard.’” Ross v. Duke, 116 Ariz. 298, 301, 569 P.2d 240, 243 (App.1977) (quoting Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 281, 94 S.Ct. 2770, 2780, 41 L.Ed.2d 745 (1974)) (citations omitted).

The other “actual malice” argument by Lewis is that Oliver persisted in making false accusations after Lewis had been “exonerated” by the FAA. Here again, the evidence is far less than clear and convincing. The purported “exoneration” is a report authored by Lewis’s immediate supervisor, Bessette, after Bessette reviewed the 1500-page report compiled by the Inspector General in response to Oliver’s accusations about Lewis. The Inspector General’s lengthy report makes no conclusions about the truth or falsity of Oliver’s accusations. In my opinion, neither the Bessette report nor the Inspector General’s report, nor the two reports together, provide sufficient evidence from which we as a reviewing court could sustain a jury verdict for Lewis on the defamation claim.

Although Bessette’s report is favorable to Lewis, it is one man’s opinion, and that man is Lewis’s supervisor. The Bessette report is not an impartial adjudication of the issues and it is not close to the clear and convincing proof of falsity as existed in Selby v. Savard, 134 Ariz. 222, 655 P.2d 342 (1982), the case relied on by the majority. That Oliver continued to press his case after learning of Bessette’s report says little about whether Oliver knew his accusations were false or whether he had reckless disregard for truth or falsity.

III.

All of Lewis’s claims depend on proof of the defamation claim. An essential element of the defamation claim is clear and convincing evidence of “actual malice.” In my opinion, the evidence on “actual malice” is insufficient to create a jury question. I would affirm the trial court grant of summary judgment to Oliver.

4 . The actual Harte-Hanks language to which Currier refers is this: "Although courts must be careful not to place too much reliance on such factors [as motive and professional standards of care], a plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence, and it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry.” 491 U.S. at 668, 109 S.Ct. at 2686 (citations omitted).