Opinion
No. 2 CA-SA 2019-0029
08-02-2019
LYNNE CADIGAN, Petitioner, v. HON. CHARLES HARRINGTON, JUDGE OF THE SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF PIMA, Respondent, and CRAIG AND JO-ANNE CARTER, Real Parties in Interest.
COUNSEL Broening, Oberg, Woods & Wilson P.C., Phoenix By Donald Wilson Jr. and Jathan P. McLaughlin Counsel for Petitioner Munger, Chadwick & Denker P.L.C., Tucson By John F. Munger, Thomas A. Denker, David Ruiz, Andrew H. Barbour, and Zachary L. Cohen Counsel for Real Parties in Interest
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f); Ariz. R. P. Spec. Act. 7(g), (i).
Special Action Proceeding
Pima County Cause No. C20155325
JURISDICTION ACCEPTED; RELIEF GRANTED IN PART; REMANDED
COUNSEL
Broening, Oberg, Woods & Wilson P.C., Phoenix
By Donald Wilson Jr. and Jathan P. McLaughlin
Counsel for Petitioner
Munger, Chadwick & Denker P.L.C., Tucson
By John F. Munger, Thomas A. Denker, David Ruiz,
Andrew H. Barbour, and Zachary L. Cohen
Counsel for Real Parties in Interest
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich concurred and Judge Espinosa dissented.
ECKERSTROM, Judge:
¶1 In this special action, petitioner Lynne Cadigan urges this court to reverse the respondent judge's denial of her motion for summary judgment, in which she argued she was entitled to judgment on the defamation claims brought against her by real parties in interest Craig and Jo-Anne Carter. Because we conclude as a matter of law that Carter was a public figure, we grant relief in part, remanding for further proceedings.
¶2 From 2012 through 2015, Craig Carter, a University of Arizona track and field coach, engaged in a series of communications and sexual activities with Baillie Gibson, a student-athlete. In May 2015, after Gibson told him this would not continue, Carter assaulted her and was subsequently convicted of stalking, aggravated harassment, and two counts of aggravated assault. Cadigan represented Gibson as a victim advocate in the criminal proceeding and in a civil action against the university and the Carters. In the civil litigation, the Carters brought a counterclaim against Cadigan for defamation, citing Cadigan's statements about "the nature of [Gibson's] relationship" with Carter and descriptions of it as "a sexually abusive relationship" that "was not consensual." In one media statement Cadigan said, "This was never a consensual relationship. Never." Other statements cited by the Carters included that Carter had "threatened to take away [Gibson's] scholarship, threaten[ed] to shame her," and that Gibson's "dreams of becoming an Olympic athlete were completely ruined by
[Carter's] abusive power." The Carters contended these statements "were intended to imply falsely that Craig Carter raped [Gibson] and/or that [she] otherwise had not consented to their sexual liaison."
¶3 Cadigan filed a motion for summary judgment on the defamation claim, and the respondent judge denied it, determining there was a material dispute of fact as to whether the relationship had been consensual, so that he could not say as a matter of law whether Cadigan's statements were substantially true. He also concluded "it cannot be ascertained by this Court whether Mr. Carter qualified as a public figure at the time of Ms. Cadigan's statements."
¶4 Cadigan thereafter filed this petition for special action. This court generally disfavors granting special-action review of the denial of a motion for summary judgment. See Moore v. Browning, 203 Ariz. 102, ¶ 1 (App. 2002). But, "[w]e make an exception in this case in furtherance of the public's significant first amendment interest in protecting . . . [against] the chill of meritless libel actions." Scottsdale Pub., Inc. v. Superior Court, 159 Ariz. 72, 74 (App. 1988).
¶5 If a plaintiff in a defamation action is a public figure or official he or she is subject to the rule of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), "that the plaintiff in such an action must prove that the defamatory publication 'was made with "actual malice"—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.'" St. Amant v. Thompson, 390 U.S. 727, 728 (1968) (quoting New York Times, 376 U.S. at 279-80). Whether a plaintiff is a "public official" is, as with the existence of other privileges, a question of law for the court. Rosenblatt v. Baer, 383 U.S. 75, 88 (1966); Restatement (Second) of Torts § 619 cmt. a; see also Khawar v. Globe Int'l., Inc., 965 P.2d 696, 701 (Cal. 1998) ("At trial, whether a plaintiff in a defamation action is a public figure is a question of law for the trial court."). "If the facts are in dispute, the jury is called upon to consider the evidence and pass upon" the dispute of fact before the legal determination of privilege is made. Restatement (Second) of Torts § 619 cmt. a. In this case, any disputes of fact relate not to Carter's position or status as a public figure, but to the nature of his interactions with Gibson.
¶6 The evidence about Carter's position and the program on the record before us is found primarily in a deposition of Fred Harvey, director of cross country and track and field, who stated that the program had been the subject of numerous articles over his years as director and that attendance at track meets numbered between five hundred and seven hundred people. He also noted that a few of the meets are televised.
During her deposition, another student-athlete also described the Arizona program as "one of the top athletic throwing programs in the country."
¶7 Our supreme court has explained that one may be a public figure "because of their position, their 'purposeful activity' in 'thrusting' themselves into matters of public controversy or their close involvement with the resolution of matters of public concern." Dombey v. Phx. Newspapers, Inc., 150 Ariz. 476, 483 (1986) (quoting Antwerp Diamond Exch. of Am., Inc. v. Better Bus. Bureau of Maricopa Cty., Inc., 130 Ariz. 523, 527 (1981)). Likewise, "the '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." Rosenblatt, 383 U.S. at 85. This court has applied that standard to determine that a high-school chemistry teacher was a public official. Sewell v. Brookbank, 119 Ariz. 422, 425 (App. 1978). In accord with that precedent, we must conclude as a matter of law that Carter, who held a position of authority in a notable state athletic program, was a public official.
¶8 That being so, the Carters must establish that Cadigan's statements were made with "actual malice." St. Amant, 390 U.S. at 728. In determining actual malice, "reckless conduct is not measured by whether a reasonably prudent [person] 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 [the] publication." Id. at 731. We remand the matter to the trial court to determine in the first instance whether the Carters have satisfied that standard.
¶9 Having accepted special-action jurisdiction, we therefore grant relief in part, and remand.
ESPINOSA, Judge, dissenting:
¶10 I write separately from my colleagues because I would decline to exercise our highly discretionary jurisdiction over this special action. We generally disapprove of special action proceedings "asking the appellate system to review trial court denial of motions for summary judgment," as is the case here. Orme Sch. v. Reeves, 166 Ariz. 301, 302 (1990). Moreover, given the factual intricacies of this unusual case and that Sewell's conclusory "public official" holding was supported only by citation to an Illinois case long since rejected in its own jurisdiction, see McCutcheon v. Moran, 425 N.E.2d 1130, 1132-33 (Ill. App. Ct. 1981), the trial court here did not clearly
err as a matter of law. And even if it did so err as found by my colleagues, the facts, at least on this record, might well support the higher standard as to the truth of the published statement. Finally, Cadigan's extraordinary and unexplained almost nine-month delay in filing her petition vitiates her claim that "there is no equally plain, speedy and adequate remedy" by appeal, Ariz. R. P. Spec. Act. 1(a), which would be a more appropriate avenue for addressing this issue after a trial on the merits.