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2006-2096. Jackson v. Columbus, Slip Opinion No. 2008-Ohio-1041.
Franklin App. No. 05AP-1035, 2006-Ohio-5209. Judgment reversed and cause remanded.
Pfeifer, O'Connor, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and Lundberg Stratton and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-1041.pdf
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(March 13, 2008) The Supreme Court of Ohio ruled today that a Franklin County trial court erred in granting summary judgment to the city of Columbus and its former safety director, Thomas W. Rice, in a defamation suit brought against them by Chief of Police James Jackson.
Today’s 4-3 decision, which reversed a ruling of the 10th District Court of Appeals, held that Rice’s inclusion of an allegation of immoral activity by Jackson in a published report of an official investigation, despite a “high degree of awareness of (the allegation’s) probable falsity,” was sufficient to raise a material question of fact about whether Rice and the city acted with “actual malice” and therefore could be found liable for defamation.
In June 1997, at the conclusion of an extended investigation of alleged improper conduct by Jackson and other members of the city’s police department, Safety Director Rice issued an official “Report to the Mayor” summarizing the details and findings of the investigation. Among other accusations that had been investigated, Rice’s report, which was released to the public, recounted statements by Keith Lamar Jones, a then-incarcerated inmate who had previously provided information to the police, alleging that Jackson had impregnated a juvenile prostitute and was paying her child support. The report labeled the accusations made by Jones as “unproven and “suspect,” and indicated that while Jones had sometimes provided reliable information, he was considered to be a “liar” and “scam artist” who had proffered inaccurate information in the past to advance his own interests.
Jackson sued Rice and the city, claiming that they had defamed him by recounting in the mayoral report a number of false and unsubstantiated allegations made by unreliable sources during the course of the investigation. The Franklin County Court of Common Pleas granted summary judgment in favor of the city and Rice on some of Jackson’s claims, including those based on Jones’ allegations. Jackson appealed the trial court’s ruling granting summary judgment with regard to inclusion of the Jones allegations in Rice’s published report. The 10th District Court of Appeals affirmed the trial court’s decision, holding that Rice’s statements in an official report were covered by a public-interest privilege, and that the evidence offered by Jackson did not overcome the privilege by showing that Rice had acted with “actual malice.” Jackson sought and was granted Supreme Court review of the 10th District’s ruling.
Writing for the majority in today’s decision, Justice Paul E. Pfeifer quoted from the Supreme Court of Ohio’s decision in Dupler v. Mansfield Journal Co., Inc. (1980): “‘In ruling upon a defendant’s motion for summary judgment in a libel action brought by a public official, the court shall consider the evidence and all reasonable inferences to be drawn there from in the light most favorable to the plaintiff to determine whether a reasonable jury could find actual malice with convincing clarity.’”
“Jackson is a public official and therefore has the burden, at trial, of proving with convincing clarity that Rice abused the qualified privilege by republishing Jones’s allegations with actual malice. On summary judgment, however, Jackson is entitled to have all evidence construed most strongly in his favor,” Justice Pfeifer wrote. “Rice conducted an investigation at the behest of Mayor Lashutka into allegations of police misconduct, but his role as investigator did not grant him license to publish unsubstantiated rumors if he ‘in fact entertained serious doubts as to [their] truth.’ ... The 184-page report submitted by Rice to the mayor categorized the rumor that is the subject of this lawsuit as ‘unproven’ and ‘suspect.’ The report stated that the source of the rumor was unreliable and a ‘liar’ and ‘scam artist.’ The report and the 969 pages of exhibits in the report’s appendix give the appearance of thoroughness. According to Jackson, however, Rice did not interview him before submitting the report to the mayor. Jackson also asserts in an affidavit that Rice did not ask him about Jones’ allegation or inquire of anyone other than Jones about the allegation. If Rice had asked, Jackson would have informed him that a vasectomy had rendered him incapable of impregnating anyone.”
“Construing the evidence most strongly in Jackson’s favor, as we must when reviewing a summary judgment motion,” Justice Pfeifer wrote, “we conclude that the evidence could support a determination that Rice had a ‘high degree of awareness of [the statement’s] probable falsity,’ ... or that Rice ‘entertained serious doubts as to the truth of his publication.’ ... Accordingly, the trial court improperly entered summary judgment in this case, and we reverse the judgment of the court of appeals and remand this case for further proceedings not inconsistent with this opinion.”
The majority opinion was joined by Justices Maureen O’Connor, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer and Justice Evelyn Lundberg Stratton. Justice O’Donnell wrote that, in his view, Rice’s inclusion of the Jones allegations in his report to the mayor fell within an exception to the theory of “actual malice” set forth in Section 602 of the Restatement of Torts (1977). Under that exception, Justice O’Donnell wrote, a person with a conditional privilege does not abuse that privilege by publishing a defamatory rumor or suspicion concerning another, “even if he knows or believes the rumor or suspicion to be false if (a) he states the defamatory matter as rumor or suspicion and not as fact; and (b) the relation of the parties, the importance of the interests affected and the harm likely to be done make the publication reasonable.”
Applying those criteria to Rice’s mayoral report, Justice O’Donnell noted that the report identified the Jones allegations as rumor or suspicion rather than fact, and further labeled them as “suspect” and “unproven.” “Moreover, the directive from the mayor related to serious allegations about the police, obligating Rice to investigate every source of information that reasonably came to his attention. Jones’ allegation against Jackson, in particular, directly concerned one of the underlying focuses of the investigation – namely, police involvement in prostitution – and it connected with similar allegations made by two prostitutes,” he wrote. “Rice also knew that Jones had made the same allegation to other government officials, including a member of the media. Any report failing to investigate this source of information would itself lack credibility. Thus, incorporating Jones’ statement into the report and detailing questions about his veracity and credibility was not unreasonable in this instance.”
Contacts
Charles E. Ticknor III, 614.221.8448, for Police Chief James Jackson.
Bradd N. Siegel, 614.227.2238, for Thomas W. Rice.
Glenn B. Redick, 614.645.7385, for the City of Columbus.