Green v. Northern Pub. Co., Inc. , 655 P.2d 736 ( 1982 )

OPINION

BURKE, Justice.

The issue in this appeal is whether the superior court erred in granting summary judgment in favor of the defendant, in a libel action that arose out of an editorial appearing in defendant’s newspaper.

I.

On December 29, 1975, David Selberg, a young pipeline worker, was arrested for disorderly conduct, after friends complained about his behavior at their home.¹ Selberg remained in jail for nine days, during which time he was examined by the plaintiff below, Thomas Green, M.D. Just after midnight, on January 7, 1976, Selberg died in his cell. According to the autopsy report,² Selberg died of natural causes, unrelated to his incarceration: spontaneous “bilateral pneumothorax,” a condition involving the sudden collapse of both lungs.

Dr. Green had contracted with the state to provide medical services for the five correctional institutions in the Anchorage area.³ He was in charge of coordinating all medical services in these institutions, and responsible for several part-time and full-time medical assistants. Dr. Green’s routine included two visits a week to the jail where Selberg was held. He was alerted to medical emergencies by his medical assistants who visited the jails six days per week.

Two hours before Dr. Green’s usual visit to the jail on December 29, 1975, he received a specific request to see Selberg, after a district court judge found Selberg unable to go through the arraignment procedure and ordered a medical evaluation. Dr. Green determined that, although Sel-berg was in good physical health, he was disoriented, “hallucinating wildly,” and physically agitated to the point where he was running naked around his cell. Since Dr. Green was a general practitioner, not a psychiatrist, he recommended that Selberg be removed “as soon as possible” from the jail and taken to a psychiatric facility for treatment and diagnosis. Prison policy required a court order authorizing the removal of a prisoner from the jail to obtain medical treatment. According to Dr. Green, he received the following oral instruction from his supervisor only a month or two prior to Selberg’s incarceration:

“Dr. Green, you in all instances, when we were [sic] certifying men out of this institution, you will abide by the Court Order method, and examine, make your recommendation, and it will be followed from there, using the Court System.”⁴

Although such an order was issued by the district court, on December 30, 1975, the psychiatric examination was not scheduled until January 7,1976. The court was aware of Dr. Green’s recommendation that Sel-berg be moved “as soon as possible,” but the judge did not interpret this as meaning that an immediate examination was required. The judge stated that he thought eight days between the order and the scheduled examination was relatively short since it usually took longer due to difficulties with bookings with the psychiatrists. During the nine days that Selberg was incarcerated, an attorney was never appointed to represent him.

Dr. Green did not see Selberg again until January 5, about twenty-eight hours before he died. During the period Selberg was incarcerated, his situation did not improve. Most of the time, Selberg was naked in a room where the temperature was about seventy-two degrees Farenheit, without blankets or a mattress. Apparently, Selberg would throw these objects against the wall of his cell. He was constantly disoriented. It was difficult and sometimes impossible for the correction officers to get Selberg to eat, and the officers could see that he was losing weight every day. When they could get Selberg to accept food, he would throw it on the floor or in the toilet and eat it from there. Sometimes, Selberg would cover his naked body with food and excrement. He was constantly active, throwing himself into the metal slab that was his bunk, and banging his head and body against the walls. Since Selberg refused to take showers, the officers forcibly administered them to him.

When Dr. Green arrived at the jail on January 5, he was surprised to learn that Selberg had not yet been removed from that facility. Dr. Green gave him a cursory examination, which consisted of observing Selberg through the window in the cell door. This was the same method of examination Dr. Green’s medical assistants used while Dr. Green was away. Dr. Green was given a report of Selberg’s activities between the 29th and the 5th.

A few minutes past midnight on January 7, the day scheduled for his psychiatric examination, Selberg died.

After Selberg’s death and a coroner’s inquest, the Anchorage Daily News commenced a series of news articles investigating the circumstances surrounding Selberg’s death. These articles culminated in the editorial forming the basis for this action:

Finally, the state has recognized its responsibility for the death of David Paul Selberg.

The 23-year-old pipeline worker died in an Anchorage jail Jan. 7. In February a coroner’s jury ruled that death was from natural causes. Then everyone involved chose to drop the sordid matter — to forget that a very sick man who had committed no crime had been locked in a 8½ by 7½ foot concrete cell for nine days and left to die.

Earlier this month, The Daily News published an exclusive series on Selberg’s death after an extensive investigation. Soon after, the state Department of Health and Social Services (HSS) began to look into the case, and Atty. Gen. Avrum Gross stated that although the Anchorage District Attorney’s Office felt they could not prove criminal negligence, his office would act in an advisory capacity to HSS.

Since then, HSS Commissioner Frank Williamson has taken steps to assure that such a tragedy does not happen again.

First, he abruptly cancelled the $125,-000 a year contract of Dr. Thomas F. Green, the physician serving Anchorage jails for the past six years.

Second, he held a meeting last week in Juneau with heads of the divisions of Corrections, Mental Health and Public Safety and members of the state court system.

Third, as a result of that meeting, he has appointed a committee to meet here April 16 for a day-long conference. This group is comprised of “principal figures in the criminal justice system and the private medical community” in Anchorage. Its purpose will be to establish definitive procedures for handling disturbed citizens such as Selberg, and to delineate clearly the responsibilities of the city police, the state troopers, the courts, the jails and our mental health facilities toward persons in their charge.

Mr. Williamson’s candor in the case is in welcome contrast to others more directly connected with the Selberg death. The actions he has taken so far have been constructive, if overdue.

We hope that the April 16 meeting here will reflect the same spirit. We need positive results from those participating, for they are the ones who serve our community and must assure our safety-

Anchorage Daily News, March 24, 1976.

Thereafter, Dr. Green brought a libel action against the newspaper’s owner, Northern Publishing Co., Inc., alleging that the editorial was defamatory. The superior court granted summary judgment in favor of the defendant, holding that the editorial was not capable of a defamatory interpretation and that the plaintiff could not satisfy the “actual malice” requirement of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). This appeal followed.

II.

A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. See Restatement (Second) of Torts § 559 (1977). The superior court found no suggestion in the editorial that Dr. Green was responsible for Selberg’s tragic death. Partly on that basis it granted summary judgment. See Rule 56, Alaska R.Civ.P. We disagree and hold the defendant’s editorial capable of a defamatory interpretation.

The editorial did not merely report the actions that the Commissioner of Health and Social Services had taken in response to the Selberg incident, and then express its opinion approving those actions. Nor did it merely imply that the Commissioner believed that Dr. Green was partially at fault for Selberg’s death. The alleged defamation relevant to this case is that the editorial under one interpretation seems to further imply that the Daily News agreed with the Commissioner and presented as fact the allegation that Dr. Green was at least partially responsible for Selberg’s death. Since this is a reasonable interpretation of the meaning of the editorial, summary judgment on the issue whether the communication was defamatory should not have been granted.

First, it is clear that the editorial implies that the Commissioner believes that Dr. Green was partially at fault for Selberg’s death. The editorial begins with the statement that the state has “recognized its responsibility” for Selberg’s death. It goes on to state that the Commissioner “has taken steps to assure that such a tragedy does not happen again. First, he abruptly cancelled the $125,000 a year contract of Dr. Thomas F. Green .... ” Dr. Green is the only person named in the editorial who was related to Selberg’s death. The Commissioner is said to have fired Dr. Green to prevent another tragic death such as Selberg suffered. The clear implication is that the Commissioner believed Dr. Green to be at least partially responsible for the death.

It is also clear that the Daily News was expressing its agreement with the state official regarding Dr. Green’s responsibility. In the second paragraph of the editorial the Daily News said that Selberg was "a very sick man” who was “locked in a ... cell ... and left to die.” This directly implies that Selberg was seriously ill at the time he was incarcerated and died in the jail when that illness was neglected. Having thus asserted that the treatment Selberg received caused his death, the Daily News then showed its agreement with the view that Dr. Green was at least partially responsible. It was the Daily News, after all, that phrased the statement that “[sjince then, HSS Commissioner Frank Williamson has taken steps to assure that such a tragedy does not happen again.” (Emphasis added.) Then, the Daily News stated that “[t]he actions he has taken so far have been constructive, if overdue.” The first of those actions, of course, was the firing of Dr. Green.

In conclusion, we hold the editorial susceptible of being reasonably interpreted as meaning that the Daily News, “after an extensive investigation,” believed Commissioner Williamson was correct in concluding that Dr. Green was at least partially responsible for David Selberg’s death. Such a meaning is clearly defamatory.

III.

Defamation defendants have two defenses — truth and privilege. The United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), held that a state law which allowed only the defense of truth was an unacceptable burden on a media defendant’s freedom of expression. Since the constitutional interest in freedom of speech and press required more, the court recognized a conditional constitutional privilege for media defendants in defamation suits brought by “public officials.” The “condition” was that the privilege applied only if the media defendant had not uttered the defamation with “actual malice,” i.e., with actual knowledge that its utterance was false or with reckless disregard for its truth or falsity. Id. at 279-80, 84 S.Ct. at 725-726, 11 L.Ed.2d at 706. For the purpose of asserting the privilege, the defendant concedes falsity but claims that because it lacked “actual malice,” its defamatory utterance is protected under the First Amendment. Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L.Rev. 1349, 1381-86 (1975).

The Daily News asserts this conditional constitutional privilege in the case at bar. Partly on that basis, it was granted summary judgment, because the trial court believed that reasonable jurors could not find that it published the editorial with “actual malice.” Dr. Green attacks that conclusion on two theories: (A) the Daily News cannot hold the privilege in this case because Dr. Green was not a “public official,” and (B) even if the Daily News holds the privilege, summary judgment on the issue of “actual malice” was improper.

A. Is Dr. Green a “Public Official”?

In New York Times, the Supreme Court limited application of the new constitutional privilege to those defamatory falsehoods which dealt with the “official conduct” of a “public official.” Id. at 279, 84 S.Ct. at 725, 11 L.Ed.2d at 706. The perimeters of the defense were drawn shortly thereafter in Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966):

[T]he “public official” designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.

... Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, ... the New York Times malice standards apply.

Id. at 85-86, 86 S.Ct. at 675-676,15 L.Ed.2d at 605-06.

The boundaries of the “public official” concept were further amplified in a footnote:

It is suggested that this might apply to a night watchman accused of stealing state secrets. But a conclusion that the New York Times malice standards apply could not be reached merely because a statement defamatory of some person in government employ catches the public’s interest; that conclusion would virtually disregard society’s interest in protecting reputation. The employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.

Id. at 86 n. 13, 86 S.Ct. at 676 n. 13, 15 L.Ed.2d at 606 n. 13.

Dr. Green contracted with the state to provide medical services to the five jails in the Anchorage area. His annual contract for $125,000 had to cover salaries for seven full and part-time employees. Dr. Green himself devoted three-quarters of his time to performing this contract; his remaining time was spent in private practice. He was responsible for training and supervising his medical assistants, as well as the coordination of the effort to supply routine and emergency services on a twenty-four hour basis. Dr. Green followed procedures established by the Department of Corrections, including the requirement of a court order to release an inmate for medical treatment. He was head of a small operational unit providing a specific limited service to a local element of a state agency. We conclude, therefore, he was not a policymaker or a member of the governmental “hierarchy” charged with “substantial responsibility” for the conduct of governmental affairs.

Dr. Green’s position was not highly visible in the community and usually attracted little “public scrutiny.” His position was of the type which generally remains unnoticed until something controversial occurs. In fact, the functioning of his unit and of Dr. Green himself did not come under critical public attention until the unfortunate death of an individual whose grave condition developed while under the unit’s medical supervision. Thus, one could argue that Dr. Green’s position did not invite public scrutiny “entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy.” Rosenblatt v. Baer, 383 U.S. at 86 n. 13, 86 S.Ct. at 676 n. 13, 15 L.Ed.2d at 606 n. 13.

In spite of the foregoing, we believe that the person directing the provision of medical services to all Anchorage area state inmates holds a position of sufficient importance that the public has “an independent interest in the qualifications and performance of the person who holds it beyond the general public interest in the qualifications and performance of all government employees.” Id. at 86, 86 S.Ct. at 676, 15 L.Ed.2d at 606. The significance of this independent public interest is not lessened by the normally quiescent character of the public job. We therefore hold that Dr. Green was a “public official” and that the “actual malice” standard applies to his defamation action against a media defendant.

B. Was summary judgment on the “actual malice” issue properly granted?

The “actual malice” test is satisfied if the plaintiff can show with convincing clarity that the defamatory falsehood was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times, 376 U.S. at 279-80, 84 S.Ct. at 725-726, 11 L.Ed.2d at 706. In order to apply the test to this case, it is necessary to determine the meaning of the “reckless disregard” standard.

Mere negligence on the part of the defendant is not enough to overcome the privilege and permit a public official to recover against a media defendant. See, e.g., St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968):

[The] cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

Id. at 731, 88 S.Ct. at 1325, 20 L.Ed.2d at 267.

“Reckless disregard,” for these purposes, means conduct that is heedless and shows a wanton indifference to consequences; it is conduct which is far more than negligent. Mahnke v. Northwest Publications, Inc., 280 Minn. 328, 160 N.W.2d 1, 15-16 (1968). There must be sufficient evidence to permit the inference that the defendant must have, in fact, subjectively entertained serious doubts as to the truth of his statement. Widener v. Pacific Gas & Electric Co., 75 Cal.App.3d 415, 142 Cal. Rptr. 304, 314 (1977) (emphasis added).

On a motion for summary judgment, the moving party must establish the absence of a material issue of fact and the court is required to draw all reasonable inferences in favor of the non-movant. Clabaugh v. Bottcher, 545 P.2d 172, 175 (Alaska 1976). Here, we have already determined that reasonable jurors could find that the Daily News stated that Dr. Green was at least partially responsible for David Selberg’s death. The question then, is whether this statement was made with knowledge or at least with serious doubt as to its truth. To be entitled to summary judgment, the defendant must establish that there was no triable issue of fact on this question.

Dr. Green argues that since the Daily News was aware of strong evidence showing that Selberg’s death was not related to the medical treatment he received in jail, a reasonable person could conclude that the Daily News acted with “actual malice,” as that term is used here, and therefore, the question must go to a jury. The primary evidence to support Dr. Green’s argument is the testimony and coroner’s report of Dr. Michael Beirne, the pathologist who performed the autopsy on Selberg. Dr. Green also points to the coroner’s inquest, which found that Selberg’s death was from natural causes and not due to criminal negligence. It is not disputed that both Nancy Doherty, the Daily News reporter, and Stan Abbott, the executive editor of the Daily News, were aware of this evidence.

At the coroner’s inquest, Dr. Beirne testified that Selberg had died suddenly and unexpectedly from a spontaneous “bilateral pneumothorax,” which is caused by air leaking out of the lungs into the chest cavity. The leak that caused Selberg’s lungs to collapse occurred without apparent external influence, hence the term “spontaneous.” In effect, Dr. Beirne believed that Selberg’s unbalanced mental condition did not contribute to the collapse. Also, Dr. Beirne believed that there may not have been any symptoms to alert Dr. Green or his assistants to the possibility or onset of a pneumo-thorax.

The result is that the writers of the editorial knew of substantial evidence that Dr. Green was not responsible for Selberg’s death. Therefore, we must reverse the trial court’s order of summary judgment unless we find that in spite of this substantial evidence, the defendant, as a matter of law, could not have entertained any serious doubts as to the truth of its assertion that Dr. Green was in some way responsible for Selberg’s death.

The defendant’s best hope of avoiding recklessness lies in Ms. Doherty’s awareness of the views of Dr. Francis Williamson, Dr. Green’s ultimate superior and the Commissioner of Health and Social Services at the time of Selberg’s death.⁵ Commissioner Williamson, who is not a medical doctor, but a naturalist with a Ph.D., made certain relevant statements to Ms. Doherty which can be divided into three excerpts. These statements were published in the Daily News in articles written by Ms. Doherty. The first was made nearly two weeks before the March 24 editorial. Commissioner Williamson said:

FIRST EXCERPT

I am not trying to be defensive; we are all guilty .... The fact is the man died and he should not have died ... I think we can stop it from happening again.... It looks like a total foul-up... . There was a major breakdown in just about every element of the system. If anyone along the way had made another decision, Selberg would still be alive.

In a March 10 article, Commissioner Williamson seems to strongly imply that Dr. Green’s efforts to get Selberg transferred from the jail were inadequate. The following is a portion of the article:

SECOND EXCERPT

Williams[on] said Tuesday that persons suspected of being mentally ill frequently wind up in jail on minor charges. The procedure for getting them treatment— through medical examination, a written opinion from the doctor informing the court and then an eventual court order— was ordinarily “adequate and timely.” In this case, however, he said, “it was not made plain to anyone that this guy was really very sick.” Both the arresting officers and the judge involved in the case have attested to the difficulty of getting a mentally disturbed and possibly violent person such as Selberg admitted to the Alaska Psychiatric Institute (API). Williamson, however, believed that these statements arose from misinformation rather than fact. “There was nothing to stop anyone — the law enforcement people or corrections or the medical staff — from making an on-the-spot decision, picking up the phone and calling API. I have trouble with all of it,” he continued. “Especially the medical end.”⁶

Finally, Ms. Doherty conducted a television interview of Commissioner Williamson where he gave his view concerning the cause of Selberg’s death. This piece of evidence is inconclusive, however, because the record does not indicate when the interview occurred. If the interview occurred after the editorial was published, it would bear no relevance to the writer’s awareness of the editorial’s probable truth or falsity.⁷ The excerpt from this television interview was as follows:

THIRD EXCERPT

Doherty: You stated to me in an earlier interview that if anyone involved with David Selberg along the way had made a different decision that he might be alive today. Can you explain what you meant by that?

Williamson: What I meant by that was first of all, David’s death was by natural causes as determined by the coroner’s inquest. The autopsy revealed a spontaneous [pjneumothorax, both lungs, cause unknown, and it can logically be assumed that no one could have averted his death. That’s one possibility. Another is that the predisposing condition to his ultimate physical condition might have been changed, I don’t know, by medical attention in a proper setting and I do think that had anyone along the way, friends, police officers, corrections personnel, or whatever, been adamant in describing and emphasizing the emergency nature of his condition, he would have ended up in a different physical setting and under a different regimen of care and I think it is quite likely that the medical problems that arose his last day of life might have been averted. No one can really answer that.

It is our determination that the statements from Commissioner Williamson to Ms. Doherty are insufficient to conclusively overcome the testimony and coroner’s report of Dr. Beirne. We conclude that reasonable jurors could disagree as to whether the defendant entertained serious doubts about the truth of its assertion that Dr. Green was in some way responsible for Sel-berg’s death.⁸

Thus, a material issue of fact existed, and summary judgment on the issue of “actual malice” was improperly granted.

REVERSED and REMANDED for further proceedings.

COMPTON, J., concurs.

MATTHEWS, J., dissents, with whom CONNOR, J., joins.

1 .Earlier, his friends tried unsuccessfully to have Selberg committed to the Alaska Psychiatric Institute.

2 .The autopsy was performed by a pathologist, Michael Beirne, M.D.

3 .Dr. Green was also in private practice.

4 . Apparently, this policy was adopted after an incident a year earlier, where an inmate, while being taken to a dental appointment, escaped and shot a police officer.

5 . Ms. Doherty, the reporter, also claims that she talked to two pathologists outside of Alaska who were skeptical of Dr. Beime’s conclusion that nothing that happened to Selberg during his incarceration contributed to his death. However, Ms. Doherty could not recall the names or addresses of the pathologists, how she came in contact with them, or even locate the notes of those conversations.

6 . It is significant to note that in the second sentence of this excerpt, Ms. Doherty acknowledges her understanding that under the procedure then in force at the jail, Dr. Green was not responsible for doing any more than he actually did — making his recommendation to the court that David Selberg receive a psychiatric examination “as soon as possible.”

7 . The date of this interview and therefore its relevance to the recklessness issue should be determined at trial.

8 . Since this is a review of a grant of summary judgment for the defendant, we are required to draw all reasonable inferences in favor of the plaintiff. Claubaugh v. Bottcher, 545 P.2d 172, 175 (Alaska 1976).