Petition — Williams v. Pasma

Office-Supreme Court, U.S,

g9-1640 FILED

MAR 29 1963

No. ALEXANDER L. STEVAS,

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

LARRY WILLIAMS,

Petitioner,

vs.

JAMES PASMA,

Respondent.

ON WRIT OF CERTIORARI FROM

THE SUPREME COURT OF THE STATE OF MONTANA

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

Gerald J. Neely, Esq.

Counsel for Petitioner

P. O. Box 21137

Billings, Montana 59104

(406) 256-5179

1. QUESTION PRESENTED

This case presents the questions of:

1. Whether petitioner, William, was, at

the time of the claimed libel, an "all purpose"

public figure within the meaning of the First

Amendment to the U.S. Constitution?

2. Whether the First Amendment's require-

ment of "actual malice" has application where

the libel defendant is not a member of the

organized media and the claimed libel had no

logical connection to a "public controversy"

concerning petitioner Williams?

3. Whether there is sufficient evidence

of "actual malice" to present a triable jury

issue?

10

2. TABLE OF CONTENTS

Questions Presented

Table of Contents

- Table of Authorities

- Opinions Below

Jurisdiction

Constitutional Provision

Involved

Statement of the Case

- Reasons for Granting This

Writ

Conclusion

Appendix

Opinion, Montana Supreme

Court

Opinion, 13th Judicial

District, District Court

3. TABLE OF AUTHORITIES

Cases Pages

Church of Scientology of Calif vs.

Siegelman, 475 F Supp 950 (SD NY

+) a! 20

Garrison vs. Louisiana, 379 US 64,

2d 125, 85 S Ct 209 18, 19

Gertz vs. Robert Welch, Inc., 418

US 323, 94 S Ct 2997, 41 L Ed 2d

789 15, 16

Hutchinson v » 443 US 111,

99 S Ct 3675, 61 L Ed 24 411 19, 20

r_Co vs. Damron,

401 US 295, 28 L Ed 24 57, 97

S Ct 628 18

Time, Inc. vs. Firestone, 424 US 448,

96 S Ct 958, 47 L Ed 2d 154 19

vs. Fairchild Pub. Inc, 627

F2d 1287 (DC Cir)(1980) 16

vs. Pasma. (Mont) 656

P2d 212 15-17,22

vs. °

Inc. 443 US 157, 99 S Ct 2701,

61 L Ed 2a 450 17

4, OPINIONS BELOW

The opinion of the Supreme Court of the

State of Montana is reported at 656 P.2d 212,

printed in the Appendix hereto, infra., page

A-1. The lower state district court opinion

follows.

5. JURISDICTION

The opinion of the Supreme Court of the

State of Montana sought to be reviewed was

entered on December 29, 1982. The jurisdiction

of this court is invoked under the Judicial

Code, 28 United States Code, Section 1257(3).

6. CONSTITUTIONAL PROVISION

INVOLVED

ee e

The case involves the following Amendment

to the United States Constitution:

Amendment 1

"Congress shall make no law respecting

an establishment of religion, or prohi-

biting the free exercise thereof; or

abridging the freedom of speech, or of

the press; or the right of the people

peaceably to assemble and to petition

the government for a redress of grie-

vances."

-4-

7. STATEMENT OF THE CASE

A. Facts material to federal questions pre-

sented. Petitioner Williams is the defa-

mation plaintiff who sued respondent

Pasma.

1. The Defamation.

In 1979, the Great Falls Tribune, a

Montana paper distributed throughout Montana,

carried a story about comments by the State

Republican Executive Secretary concerning a

state elective office, its Democratic incum-

bent, and a report that another person was

securing the nomination to the Democratic

primary to that office. The news story made

no reference to Williams nor to any activity

to which he was connected.

Two days later, Pasma wrote and was res-

ponsible for the publication and distribution

of a press release, which was printed by the

Tribune on October 27, 1979, which publication

was the basis of the libel suit, and is set out

in the Appendix at Page A-

In an aside, the Pasma press release

-5-

falsely stated that Williams - - who had no

connection directly or indirectly to the con-

troversy involved in the prior story or the

Pasma release - - had "been under Federal

indictment for political and financial

shenanigans..." . Williams has never been @

under indictment, federally or otherwise, for

any matter.

2. The defamation plaintiff Williams.

Prior to the claimed libel, Williams published

an investment advisory service and traded in

regulated commodities and stocks and was a

licensed commodity advisor and registered in-

vestment advisor. He was the author of three @

books on stocks and commodities, there being

no evidence that any one in Montana had ever

seen his books. In 1975 and 1976 he was the

topic of an article published in Forbes

Magazine and The Wall Street Journal.

In 1978 he was the Republican nominee for

the U.S. Senate for Montana, losing the general

election in the fall of 1978.

After his unsuccessful candidacy for the

obi

U.S. Senate and up to the time of the libel,

Larry Williams:

-- served in no official or un-

official capacity for the Republican Party.

In the summer of 1979, he attended a Republican

convention, but not as a delegate, and gave

a speech for a candidate for State Chairman

of the Republican Party. There is no evidence

the speech was in the media.

-- gave no other speeches in Montana

for or against candidates for political office,

and gave a speech in Los Angeles to an Economic

Conference. There is no evidence the speech

was reported in the media.

-- was one of the leaders in Montana

promoting the Republican Presidential candidacy

of former Texas governor, but at the time of

the libel, Williams had just been selected to

be on the State Committee and had not under-

taken any duties or activities in regard to

Connally. Other than the announcement of his

appointment to the Committee, there is no

evidence of public activities nor that any

-7-

segment of the public was aware of the appoint-

ment.

-- was a member of the National Tax-

payers Union, a non-partisan group of Republi-

cans and Democrats that are not politically

active but which disseminate information and r

attempt to influence policy. The N.T.U. is con-

cerned with the cost and growth of government.

The primary issue of concern was a legislative

resolution for a constitutional amendment to

balance the budget, on which Williams worked at

the 1979 Legislature. During the Legislature,

Williams made a public statement representing

the N.T.U. in testimony before a Legislative @

Committee. On September 4, 1979, he made a

public statement on behalf of the N.T.U. While

coordinating that drive, the drive had few

Montana members, there were no meetings, and no

newsletters, and a small number of press

releases - up to three - during the Legislative

session were issued by Williams on the topic

of a "balanced budget." There is no evidence

that the media carried any of these releases

ies

nor that any controversy arose as to the issue.

3. The defamation defendant Pasma. At

the time of publication, Pasma was not a pub-

lisher or broadcaster or employed as such in

any publishing or broadcasting media. There

is no claim that he was a member of the organ-

ized media or was connected with any newspaper,

radio or television outlet, nor that he was

in any way a professional news disseminator.

His sole source of income was as a pro-

fessional artist and he was a Democratic

National Committeeman.

4, The circumstances surrounding the

Defamation.

a) At and Before.

The defamatory publication makes no refer-

ence to the source of Pasma's false statement

about Larry Williams. The only reference the

false publication makes about Larry Williams'

potential public status is his connection to

the Connally campaign and his prior U.S.

Senate candidacy.

Prior to his creation of the release,

-9-

Pasma did not check with any individual or

consult any document, book, or record concern-

ing the truth or falsity of the statement.

No source of information is referred to by

Pasma in the articles appearing in the press

soon thereafter. @

After suit was filed and Pasma's deposi-

tion taken does he claim that he was using his

recollection of an article that appeared in

the Billings Gazette, a Billings, Montana

Newspaper, an article which he claims he

didn't have before him when he wrote the press

release.

Pasma did not check with the writer of ©

the Gazette article or anyone else as to its

accuracy. In any event, it does not say that

Larry Williams was under indictment, Federally

or otherwise, for any crime.

There is no suggestion or evidence that

Williams, after his unsuccessful senate race

and up to the defamation was a candidate for

anything.

Pasma had read an article in Forbes

Magazine (from 1975) and various press articles

@10-

about Larry Williams and the impression Pasma

received from each of them was that Larry

Williams "was an unsuitable candidate for

public office." Pasma's defamation of Williams

was to hinder any subsequent try for public

office that Larry Williams might try.

b) After.

On Monday, October 29, 1979, Williams

called Pasma by phone, two days after the libel-

ous statement appeared in the Great Falls

Tribune. Williams told Pasma that he,

Williams, had not been under indictment at any

time for anything, including political and

financial shenanigans. Williams asked Pasma

if he, Pasma, would “simply make a retraction

of the statement." Williams wanted Pasma to

say that he, Williams, had not been under

Federal indictment.

Pasma told Williams over the phone in the

same conversation that he, Pasma, would not |

make a retraction unless Williams could show to

Pasma that he, Williams, had not been under

Federal indictment.

elie

Then Williams reiterated that he had never

been under indictment and offered to correct

any information Pasma might have had. No such

information was forthcoming from Pasma.

Pasma, in the telephone conversation, then

told Williams "to go to hell."

Williams thereafter, in a telephone inter-

view with the Great Falls Tribune, printed on

Tuesday, October 30, 1979, publicly demanded a

formal retraction.

In a news interview, Pasma declined to

issue a formal retraction but admitted in a

telephone interview that his use of the words

"Federal indictment' in a press release

‘apparently was a poor one.'

Pasma, in his telephone conversation with

Williams, said to Williams that he, Pasma, had

no intention of withdrawing his statement.

And Pasma had stated in the Tribune inter-

view printed October 30, 1979 that he was

willing to believe Williams, but only until any

third party told Him differently.

Williams’ attempts to publicly set the

record straight could not keep up with Pasma's

aie

republication of the libel. As Pasma was

approached by people who had seen the press

publication of the libel and the article of

Williams' seeking of a retraction and setting

the record straight on October 30, 1979:

"They simply asked me was the statement I made

about him true, and I said to the best of my

knowledge, yes." There were about 20 different

people to whom he published the libel again.

Even after suit was filed by Williams to

clear his name, Pasma continued to republish

outside of any court pleadings. In an inter-

view with news reporter Tim Linton of KTVQ in

Billings, Pasma indicated that the statement

was true and that he stood by it. Pasma also

republished with a reporter of radio station

KOJM of Havre, Montana, which broadcast a story

on the Pasma charges.

Even as part of the news reports of the

filing of the libel suit, Pasma was still

issuing news releases on the topic and said

that if his position on the matter didn't

satisfy Williams "then he can go straight to

hell."

-13-

B. Raising of the Federal question. The Fed-

eral question was raised by Pasma in a motion

to dismiss before the District Court of the

Thirteenth Judicial District, State of Montana,

in the following manner:

"1. The plaintiff is a public figure @

and therefore may not maintain an action

for libel unless he can show clearly and

convincingly that the said statements

were made with actual malice; and

"2. The said plaintiff has wholly

failed to allege that the communication

was made with actual malice, all as

required by the laws and constitutions

of the State of Montana and the United

States of America." Motion to Dismiss

of Pasma, Jan. 17, 1980.

The District Court's memorandum order, set

out in the Appendix, clearly rested its deci- ©

Sion on the public figure/actual malice con-

siderations of the First Amendment.

By way of briefs to the Montana Supreme

Court and oral argument, both parties raised

and argued the First Amendment of the U. S.

Constitution vis-a-vis each of the issues raised

in this petition. The Montana Supreme Court

in its opinion, Appendix, infra. page A-l,

specifically rested its decision on the issues

here raised on First Amendment considerations

-1h-

only.

8. REASONS FOR GRANTING THIS WRIT

As to each of the three issues involved,

there exist special and important reasons,

which are not academic or abstract, for the

granting of this Writ. The settlement of the

principles involved are important to the public

and the Federal questions are real and sub-

stantial.

A. Whether petitioner was an "all-

purpose" public figure. The Montana Supreme

Court held that Williams was a public person-

ality for all aspects of his life, under Gertz

v. Robert Welch, Inc. (1974), 418 U.S. 323,

94 S.Ct. 2997, 41 L.Ed.2d 789 in that he had

general fame or notoriety in Montana, and in

Montana had exhibited persuasive involvement

in the affairs of society. Williams v. Pasma,

656 P.2d 212, 215-216.

In so holding, the Montana Supreme Court

decided an important question of Federal law

in a way which has not been, but should be

settled by this court, to-wit; 1) whether the

-15-

"in the community" language of Gertz, supra.

refers to a state of national standard?;

2) whether the facts before the court are

sufficient to find any such general fame or

persuasive involvement regardless of the

"community" involved? ©

It is submitted the Montana Supreme Court

made a grave factual error in concluding that

prior to the claimed libel Williams "served

as Chairman for the Montana Republican Party."

Williams v. Pasma, op.cit. at p. 216. No such

contention was made by the opposing party and

it is simply not correct. Prior to the claimed

libel, Williams held no party office. @

Regardless, counsel for petitioner is un-

aware of any court ruling holding one an all-

purpose public figure on such limited facts.

The public-involvement facts of Williams

Clearly fall outside the requirements of

Waldbaum v. Fairchild Publications, Inc,

625 F.2d 1287 (1980 D.C. Cir.) requiring one

to be a "celebrity" whose name is a "household

word" whose ideas and actions the public in

fact follows with great interest." At page

-16-

1292.

An added question is raised as to Williams

former U.S. Senate candidacy and whether, from

the passage of time, his public figure status

in connection with that campaign had attenuated,

a question explicitly reserved by this court

in Wolston v. Reader's Digest Ass'n, Inc.,

443 U.S. 157, 166, N. 7, 99 S.Ct. 2701, 2707,

N. 7, 61 L.Ed.2d 450 (1979). To counsel for

petitioner's knowledge, neither this court nor

any other court has extended the protection

of the First Amendment to cases solely in-

volving former candidates for public office not

candidates or public officials at the time of

the claimed libel, where, as here, where the

claimed libel was unrelated to the conduct of

the previous campaign.

Additionally, the defamatory release

only refers to Williams' public status as a

previous U.S. Senate candidate and his appoint-

ment as one of two people to head a "John

Connally for President" Committee in Montana.

Williams v. Pasma, op. cit., at P. 213. It

-17-

is submitted that it is an open question before

this court whether public figure characteristics

not referenced in the libelous release can be

considered. CF. Ocala Star-Banner Co. v.

Damron, 401 U.S. 295, 28 L.Ed.2d 57, 91 S.Ct.

628, at Note 4.

B. Whether the "actual malice"

standard has application in a non-media defen-

dant case where the claimed libel had no logical

connection to a "public controversy" concerning

Williams?

It is submitted that the Montana Supreme

Court decided an important question of Federal

law in a way which has not been, but should be,

settled by this court, to-wit: Do the First

Amendment requirements of actual malice apply

to situations: a) involving a non-media

defendant; b) and a purely-private libel, e.g.

a libel unrelated to a public controversy or

public affairs.

This court has expressly reserved the

question of "purely private libels, totally un-

related to public affairs." Garrison v.

-18-

Louisiana, 379 U.S. 64, 13 L.Ed.2d 125, 131 at

Note 8, 85 S.Ct. 209. With the replacement of

"general or public interest" with "public

controversy", Time, Inc. v. Firestone, 424

U.S. 448, 96 S.Ct. 958, 965, 47 L.Ed.2d 154,

it is submitted the question is undecided and

should be by this court.

Additionally, this court has reserved the

question of whether the First Amendment restri-

ctions apply to non-media defendants.

Hutchinson v. Proxmire, 443 U.S. 111, 99 S.Ct.

2675, 61 L.Ed.2d 411 at N. 16, page 430.

Here, the claimed libel had no logical

connection to any public status attribute of

Williams or any public controversy in the air

at the time.

C. Whether there was sufficient

evidence of "actual malice" to present a

triable jury issue?

It is submitted that the Montana Supreme

Court decided an important question of Federal

law which has not been decided, but should be,

by this court and decided a question in conflict

-19-

with the applicable decisions of this court

when it held, as a matter of law, that there

was insufficient evidence of "actual malice"

such that a jury could not reasonably have

found for Williams.

This court has suggested that it dis- @

approves of an inclination to grant summary

judgment when the defendant's state of mind is

called into question. Hutchinson v. Proxmire,

op.cit., 61 L.Ed.2d 411, at P. 120, Note 9.

This position has since been followed by the

courts. See: Church of Scientology of Calif.

v. Siegelman, 475 F.Supp. 950 (SD Ny 1979) at

P. 955. @

Petitioner relies upon the following

facts or inferences of facts, which, when

combined with each other, are sufficient to

prohibit a finding of a lack of actual malice

as a matter of law, especially with the

evidence being viewed favorably to Williams for

purposes of such a determination:

1. Failure to investigate under circum-

stances of a lack of "hot news", including

failure to contact Williams prior to publica-

tion;

2. Evidence of ill-will towards Williams

by Pasma;

3. Lack of necessity of Williams’ name

even being mentioned, plus lack of any logical

connection between Williams and the controversy

at hand;

4, Reliance, if at all, on a published

report with no knowledge as to the reliability

of the source, the published report not conclud-

ing what the libel defendant did;

5. Failure to retract;

6. Republication, multiple, after the

libel plaintiff advised him that the statement

was false, and the defamation defendant stated

he would believe that until someone told him

differently;

7. Substantial danger to reputation

apparent from nature of claimed libel;

Such a combination of items has not, to

counsel's knowledge, been treated by this court;

Additionally, the only evidence cited by

a is Yom

the Montana Supreme Court in support of the

proposition that there was no "actual malice”

is the libel defendant's unsworn statement

appearing in a newspaper that: "At the time

I made the statement that Mr. Williams had

been Federally indicted .. . I sincerely ©

believed it, .. . taling to Mr. Williams by

phone he assured me that this was incorrect,

and as I said in a previous news release, I

believe him." Williams v. Pasma, op.cit., at

FP. 2i6.

The Montana Supreme Court failed to point

out that this statement was made after the

libel suit was filed and is contradicted by ©

all facts of record in the case, even the news

article in which it appeared. The news article

goes on to say: "'If Mr. Williams says he

wasn't indicted, then I have no choice but to

believe him unless someone informs me other-

wise,’ he [Pasma] said in October. In a later

press release, Pasma said if this statement

didn't satisfy Williams, 'then he can go to

hell.'", 3

220

Pasma's out-of-court republication of the

libel to individuals, radio and television

came after the statements by Pasma.

9. CONCLUSION

For the foregoing reasons, this Petition

@ for a Writ of Certiorari should be granted.

Respectfully submitted,

7/4

GERALD J. NEBLY

Counsel for Petitioner

P. O. Box 21137

Billings, MT 59104

(406) 256-5179

=23-

STATE REPORTER

Box 749

Helena, Monana

Volume 39

No. 82-50

LARRY WILLIAMS,

Plaintiff and Appellant,

Vv. Submitted: Nov. 15, 1982

Decided: Dec. 29, 1982

JAMES PASMA,

Defendant and Respondent.

LIBEL AND SLANDER, Action claiming libel and »:

asking for Damages, Whether it was error to grant

summary judgment which held Williams is a Public

Figure as a matter of law, Whether there was

any genuine issue as to any material fact regard-

ing whether Pasma acted with Malice, Whether the

rules protecting Freedom of Speech and Press

in libel actions apply to a Nonmedia defendant,

Whether the defenses of "belief in the truth"

and "fair comment" were properly pleaded.

Appealed from the Thirteenth Judicial District

Court, Yellowstone County, Hon. William J. Speare,

Judge.

For Appellant: Gerald J. Neely, Billings.

A-1

For Respondent: Herron, Meloy and Llewellyn,

Helena

Mr. Neely argued the case orally for Appellant;

Mr. Peter M. Meloy for Respondent.

Opinion by Justice Harrison; Justices Daly, Shea

and Weber concurred. Chief Justice Haswell @

dissented.

Affirmed.

Mr. Justice Harrison delivered the Opinion of the

Court.

Plaintiff/appellant, Larry Williams, filed

a complaint in the Thirteenth Judicial District,

Yellowstone County, against defendant/respondent,

James Pasma, claiming libel and asking for

damages. On January 8, 1982, the District court,

granted summary judgment to Pasma. Williams

appeals.

The alleged libel was prompted by an occur-

rence of events which began in October, 1979.

At that time there was "talk" that Superintendent

of Public Instruction, Georgia Ruth Rice, would

be opposed by a former employee, Judi Fenton.

On October 24, 1979, Kenneth Dunham, Secretary

A-2

to the State Republican Committee, made a

critical comment about both Rice and Fenton which

was carried by the Great Falls Tribune. In the

same edition of the Tribune there was another

story announcing that unsuccessful U.S. Senate

candidate Williams and former Governor Tim Babcock

had been selected and agreed to head a John

Connally for President committee.

When Pasma, a member of the State Democratic

Committee, read the two news reports, he found

it ironic the republicans were criticizing the

two potential democratic candidates while at

the same time they announced the appointment of

two individuals (Williams and Babcock) who had

had "trouble with the law" to run Connally's

campaign committee. Pasma then composed a press

release which was printed in the Great Falls

Tribune on October 27, 1979. Pasma stated,

"The entire thrust of my article was for Mr.

Dunham to busy himself cleaning up his own house

rather than attacking unannounced democratic

candidates and delving or messing around in any

way in the democratic primary." The press

A=-3

release stated:

"A Democratic Party official Friday accused

state Republican spokesman Ken Dunham of making

statements about Democrats that were ‘short on

content and long on poor taste and bad manners.'

"Democratic national committeeman Jim Pasma,

Havre, took issue with comments Dunham made this

week about Public Instruction Supt. Georgia Ruth

Rice and her possible Democratic opponent, Judi

Fenton. Rice also is a Democrat.

"Dunham had questioned Rice's competency

and said he was disturbed that Democrats would

consider nominating ‘another bureaucrat' like

Fenton for the job.

"Pasma called Dunham's comments ‘typical of

the treditional negative chatter that comes from

the Republican state office.' He said Dunham's

press releases, which included a ‘vicious per-

sonal attack' on Rice and ‘an equally unbecoming

media salvo' against Fenton 'may very well set

the tone for the type of campaign rhetoric we

can expect from the GOP in 1980.'

"Pasma said it was ironic that on the same @

day that Dunham attacked the Democrats, a

story ran indicating that former Republican

Gov. Tim Babcock and Larry Williams, unsuccessful

1978 GOP Senate candidate, were among the lea-

ders of a state committee promoting the presiden-

tial candidate John Connally.

"When we consider that all three have at one

time or another been under federal indictment

for political and financial shenanigans, it is

small wonder to me at least that Ken Dunham

busies himself calling attention to what he con-

siders the shortcomings of possible Democratic

opponents, Pasma said.'

"Connally, a former Democratic governor

A-4

of Texas, was acquitted of charges that he was

bribed by milk producers when he was secretary

of the treasury. Babcock pleaded guilty and

was fined for making an illegal campaign contri- |

bution to former President Richard Nixon. Williams ©

was stripped of his licenses as an investor

and commodity adviser, but a court ruled in his

favor and his licenses have been returned.

"Pasma urged Dunham to spend his time

making sure the Republicans come up with their

best qualified candidate for superintendent to

insure a healthy debate of the issues in the

general election."

Pasma's misconception about Williams evolved

from an article which appeared in Forbes Magazine

and was reprinted in the Billings Gazette.

The article contained the following statement:

"Court records show that williams was three

times charged with violations of federal regula-

tions covering commodities and security invest-

ment counselors."

Pasma claims he did not know the difference

between "charged with a federal offense" and

"being under federal indictment."

In a story which appeared in the Great Falls

Tribune on October 30, 1979, Williams demanded

a retraction from Pasma. Williams stated Pasma's

charges that Williams had been under federal

indictment were false and constituted "dirty

politics" and he would file a libel suit if a

A=5

formal retraction was not made. Williams said,

"Somebody has to teach political people in Montana

to play the game by the facts and by the truth,

and if that happens to be me, so be it."

In a telephone interview after Williams

demanded a retraction, Pasma stated: "If Mr. ©

Williams says he wasn't indicted, then I have

no choice but to believe him unless someone in-

formed me otherwise." This statement was pub-

lished in the Great Falls Tribune on October 30,

1979. Pasma further admitted that "his use of

the words 'federal indictment’ in a press release

‘apparently was a poor one.'" In an interview

published in the Great Falls Tribune on December @

11, 1979, Pasma stated, "At the time I made the

statement that Mr. Williams had been federally

indicted, as had former Governor Babcock and

former Governor Connally, I sincerely believed

it, .. . talking to Mr. Williams by phone he

assured me that this was incorrect and as I said

in a previous news release, I believe him."

After Pasma refused to make a formal retrac-

tion, Williams filed a complaint in Yellowstone

A-6

County against Pasma alleging that he had been

libeled and suffered damages by virtue of the

article published in the Great Falls Tribune.

Pasma moved to dismiss the action claiming

Williams was a "public figure" and therefore in

order for Williams to recover he must allege and

prove actual malice. Before the District Court

acted on the motinn to dismiss, Williams amended

his complaint charging Pasma with actual malice.

On January 8, 1982, following cross-motions for

summary judgment, the District Court granted

Pasma's motion and ordered judgment be entered

in favor of Pasma. Williams appeals.

The substance of the issues raised on appeal

is as follows:

1. Whether the District Court erred by

granting summary judgment which held Williams is

a public figure as a matter of law.

2. Whether there is any genuine issue as to

any material fact affecting Williams' allegations

that Pasma acted with malice, and if not, is

there any factual basis upon which a jury could

conclude that the statements were made with malice.

A-7

3. Whether the state and federal rules

protecting freedom of speech and press in libel

actions apply to a nonmedia defendant.

4, Whether the defenses of "belief in the

truth" and "fair comment" were properly pleaded

and if so, whether these defenses and the privi- @

leges contained in section 27-1-804, MCA, apply

in this action.

Williams contends summary judgment was in-

appropriate claiming the issue of whether or not

he was a public figure is for the jury to deter-

mine. Williams cites Article II, Section 7, 1972

Montana Constitution:

"In all suits and prosecutions for libel or

Slander the truth thereof may be given in ©

evidence, and the jury, under the direction of

the court, shall determine the law and the facts."

In support of his position, Williams relies

upon the following language from Madison v.

Yunker (1978), 180 Mont. 54, 589 P.2d 126:

"Likewise it may be contended in the re-

trial that Madison is a 'public figure.' Whatever

his status, it is a question for the jury to

determine, because of the constitutional provi-

sion that the jury under the instructions of

the court is the judge of both law and fact.

Article II, Section 7, 1972 Montana Constitution.

With appropriate instructions, the jury can deter-

mine these matters arid their status in any trial,

unless otherwise stipulated." 589 P.2d at 133.

A-8

However, this la»guage is not controlling

and must be qualified. In Griffin v. Opinion

Publishing Co. (1943), 114 Mont. 502, 138 P.2d

580, this Court correctly stated:

"While our Constitution like that of Missouri,

Colorado, South Dakota and Wyoming provides that

in libel suits 'the jury, under the direction

of the court, shall determine the law and the

facts,' yet the decisions clearly show that the

function of the court and jury is not greatly

different in the trial of libel from what it is

in other cases.

"In other words, it is for the court and

not the jury to pass upon demurrers to the com-

plaint; upon the admissibility of the evidence;

upon motions for nonsuit; upon motions for a

directed verdict; upon motions for a new trial

and upon motions to set aside verdicts or vacate

judgments." 114 Mont. at 512.

Thus, there is no absolute prohibition

against granting summary judgment in libel

cases. As the United States Supreme Court com-

mented in Roseblatt v. Baer (1966), 383 U.S. 75,

88, 86 S.Ct. 669, 15 L.Ed.2d 597: "we remark

only that, as in the case with questions of

privilege generally, it is for the trial judge

in the first instance to determine whether the

proofs show respondent to be a 'public official.'"

Next, we must decide whether the District

A-9

Court was correct in finding Williams was a

public figure as a matter of law. If Williams

was a public figure at the time of the alleged

libel, then he cannot recover damages unless he

can show the statement was made with actual @

malice. This rule was stated by the United

States Supreme Court in New York Times v.

Sullivan (1964), 376 U.S. 254, 279-280, 84 S.Ct.

710, 11 L.Ed.2d 686:

"The constitutional guarantees require, we

think, a federal rule that prohibits a public

official from recovering damages for a defama-

tory falsehood relating to his official conduct

unless he proves that the 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." ©

For a period of time the United States

Supreme Court differentiated between public

officials and public figures. See Curtis

Publishing Co. v. Butts (1967), 388 U.S. 130,

87 S.Ct. 1975, 18 L.Ed.2d 1094. Finally in

Gertz v. Robert Welch, Inc. (1974), 418 U.S.

323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789, the

United States Supreme Court removed the distinc-

tion and classified public figures as falling

A-10

into one of two groups:

"In some instances an individual may achieve

such pervasive fame or notoriety that he be-

comes a public figure for all purposes and in

all contexts. More commonly, an individual vol-

untarily injects himself or is drawn into a

particular public controversy and thereby be-

comes a public figure for a limited range of

issues. In either case such persons assume

special prominence in the resolution of public

questions."

In this instance, if Williams falls into

either of the above-mentioned groups, it would

most likely be the former. Obviously, there

is a limited number who can be included in the

group of public figures for all purposes. In

Gertz the United States Supreme Court stated:

"Absent clear evidence of general fame or

notoriety in the community, and pervasive in-

volvement in the affairs of society, an indivi-

dual should not be deemed a public personality

for all aspects of his life." 418 U.S. at 352.

We must determine here whether there is

clear evidence that Williams had "general fame

or notoriety in the community" and exhibited

"pervasive involvement in the affairs of

society."

Prior to the time of the alleged libel

Williams had: published an investment advisory

service and traded in stocks and commodities;

A-11

authored three books on stocks and commodities;

been the subject of an article in Forbes Magazine

in 1975 and an article in the Wall Street

Journal in 1976, and gave a speech to an economic

conference in Los Angeles; unsuccessfully ran

for the position of United States Senator for @

the State of Montana in 1978; attended a repub-

lican party convention in 1979 and gave a speech;

served as chairman for the Montana republican

party; and been an active member of the National

Taxpayer's Union. Some courts have hinted that

national notoriety is necessary to attain general

public figure status. See, Swatsler, The

Evolution of the Public Figure Doctrine in Defa-@

mation Actions, 41 Ohio St. L.J. 1009, 1030 (1980).

However, we cannot find any authority from the

United States Supreme Court nor State Supreme

Court cases that expressly sets such a requirement.

In fact, the language "in the community" appears

to require only local notoriety. We find the

above-mentioned activities do establish clear

evidence that Williams had general fame or

notoriety in the community (Montana) and ex-

A-12

hibited pervasive involvement in the affairs of

society and thus was a public figure as a matter

of law.

In view of our finding that Williams was

a public figure as a matter of law, we must

determine whether the District Court erred in

holding there is no factual basis upon which a

jury could conclude "asma's statements were made

with malice. As stated above, the rule that a

public official cannot recover damages upon a

claim for defamation without a showing of

actual malice was stated in New York Times v.

Sullivan, supra. There, the United States Su-

preme Court held malice must be proved by a

showing that the statement was published "with

knowledge that it was false or with reckless

disregard of whether it was false or not."

In New York Times the alleged libel stemmed

from a full page advertisement published in

the New York Times which spoke of alleged human

rights infractions by the police department in

Montgomery, Alabama. About whether there was a

showing that the publication was made with malice,

A-13

the United States Supreme Court stated:

"The statement does not indicate malice at

the time of the publication; even if the adver-

tisement was not ‘substantially correct' -

although respondent's own proofs tend to show

that it was - that opinion was at least a reason-

able one, and there was no evidence to impeach

the witness' good faith in holding it." 376

U.S. at 286.

We find here, as in new York Times, that

the statement was made in good faith and although

it was not a correct statement, there is simply

no evidence the statement was made with actual

malice. The difference between the legal words

"indicted" or "charged" is relatively minor in

the minds of the average Montana citizen and

Pasma stated he did not know there was a differ-

ence. Pasma's statements to the press which were

published after the alleged libel surely abdi-

cate any allegation the statement was made with

actual malice: "At the time I made the statement

that Mr. Williams had been federally indicted

- - I sincerely believed it, .. . talking to

Mr. Williams by phone he assured me that this

was incorrect and as I said in a previous news

release, I believe him."

Williams next argues the First Amendment

A-14

privilege established by New York Times does

not apply because Pasma is a nonmedia defendant.

The New York Times privilege evolved from the

United States Supreme Court's recognition of

the need for far-reaching First Amendment pro-

tection in certain cases. The United States

Supreme Court stated:

Such a privilege for criticism of official

conduct is appropriately analogous to the pro-

tection accorded a public official when he is

sued for libel by a private citizen .. . The

reason for the official privilege is said to be

the threat of damage suits would otherwise

‘inhibit the fearless, vigorous, and effective

administration of government' and ‘dampen the

ardor of all but the most resolute, or the most

irresponsible, in the unflinching discharge of

their duties.' [citation omitted] Analogous

considerations support the privilege for the

citizen-critic of government. It is as much

his duty to criticize as it is the official's duty

to administer." 376 U.S. at 282.

This privilege was expanded to include

matters involving all public figures. The United

States Supreme Court did not limit its extension

to only media defendants in Gertz, supra. We

agree with the holding of the Oregon Supreme Court

in Wheeler v. Green (1979), Ore.

593 P.2d 777:

"There is, however, nothing in Gertz which

A-15

Suggests that the cases applying the New York

Times rule to non-media defendants were in-

correct or would not be followed in future actions

brought by public official or public figures.

The Court's concern in those cases to provide

adequate protection for freedom of public debate

on issues of public importance has not been

repudiated. We conclude that all defendants,

not only those associated with the media, con-

tinue to be protected by the New York Times rule

in cases involving comment upon public

officials and public figures." 593 P.2d at 784.

This holding is consistent with this Court's

ruling in Gallagher v. Johnson (1980),

Mont. » 611 P.2d 613, 37 St. Rep. 940. In

Gallagher we held the New York Times rule applied

to a nonmedia defendant who purchased advertis-

ing space in a local newspaper to vent his cri-

ticisms of, and frustrations with, the govern-

ment for the City of Anaconda, Montana.

Williams' last assertion is that the defenses

of "belief in the truth" and "fair comment"

were not properly pleaded and that the statutory

privileges contained in section 27-1-804, MCA,

are not available in this action. The defenses

of "belief in the truth" and "fair comment"

were common law privileges which led to the

United States Supreme Court's ruling in New York

Times v. Sullivan, supra. A close reading of

A-16

New York Times reveals that the common law

privilege of fair comment was the privilege

which the United States Supreme Court was

addressing when it stated: "Thus we must con-

sider this case against the background of a

profound national commitment to the principal

that debate on public issues should be uninhi-

bited, robust, and wide open, ... " 376

U.S. at 270. The common law privilege of

belief in the truth was similarly incorporated

into the New York Times rule as going to the

proof of actual malice. As these privileges

were incorporated into the rule set forth in

New York Times, there is no longer a requirement

that they be pled as specific defenses or lost.

Throughout the course of this action, Pasma

maintained Williams was a public figure and

there was no evidence that the statement was

made with actual malice. This is all the

defense Pasma was required to plead.

We find no need to comment upon Williams'

contention that the privileges contained in

section 27-1-804, MCA, are not applicable

A-17

here. We have already applied the New York Times

rule and its extensions to the facts of this

case. In so doing, we find Williams was a

public figure at the time of Pasma's statement

and there is no evidence that the statement

was made with actual malice. Judgment of the @

District Court is affirmed.

Mr. Chief Justice Haswell, dissenting:

I would vacate the summary judgment and

remand to the District Court for further pro-

ceedings.

The lynchpin of the majority opinion is

that plaintiff Larry Williams is a public ficur®@®

for all purposes as a matter of law. I dis-

agree. In my view, this is a jury question pre-

cluding summary judgment.

In a libel action the jury, under the

direction of the court, determines the law and

the facts. Art. II, Sec. 7, 1972 Mont. Const.

We have previously held that a person's status

as a public figure is a question for the jury

to determine. Madison v. Yunker (1978), 180

A-18

Mont. 54, 66, 589 P.2d 126, 133. The majority

now limit Madison to cases where there is a

genuine issue of material fact for the jury to

determine. I agree.

My quarrel is with the majority conclusion

that there is no jury question in this case. In

my view, there is a genuine issue of material

fact as to whether plaintiff Larry Williams is

a public figure for all purposes which fore-

closes summary judgment.

The substance of the uncontested evidence

of record in this case discloses the following

facts relating to Williams' status as a public

figure at the time of the alleged libel (October

27, 1979):

(1) Williams was an unsuccessful candi-

date for United States Senator in 1978 and in

connection therewith made numerous speeches,

issued press releases, appeared on TV, and

made numerous public appearances in connection

with his campaign;

(2) Williams authored three books on

stocks and commodities prior to 1978;

A-19

(3) Williams published an investment

advisory service and traded in stock and com-

modities;

(4) Williams and others were selected to

be members of the State Committee for Republi-

can presidential candidate John Connally; @

(5) Williams was the subject of an article

in Forbes magazine in 1975 and the Wall Street

Journal in 1976;

(6) Williams gave a speech to an Economic

Conference in Los Angeles;

(7) Williams attended a Republican conven-

tion and gave a speech for a candidate for

State Republican Chairman; @

(8) Williams was a member of the National

Taxpapers Union and gave testimony to a legis-

lative committee and worked at the legislative

level, made a public statement promoting

balanced budgets, and issued three press releases

during the legislative session.

Do these uncontested facts make Williams

an all-purpose public figure as a matter of

law? Not at all. To establish such there must

A-20

be "clear evidence of general fame or notor-

iety in the community, and persuasive involve-

ment in the affairs of society." Gertz v.

Robert Welch, Inc. (1974), 418 U.S. 323, 352,

94 S.Ct. 2997, 3013, 41 L.Ed.2d 789, 812. It

has been held by a federal appeals court that

"a person can be a general public figure only if

he is a 'celebrity' - - his name is a ‘household

word' = = whose ideas and actions the public in

fact follows with great interest." Waldbaum v.

Fairchild Publications, Inc. (D.C. Cir. 1980),

627 F.2d 1287, 1292, cert. denied, 449 U.S.

898, 101 S.Ct. 266, 62 L.Ed.2d 128. Examples

of persons the courts have held to be all-purpose

public figures are Johnny Carson [Carson v.

Allied News Co. (7th Cir. 1976), 529 F.2d 206]

and William F. Buckley, Jr. [Buckley v. Littell

(2nd Cir. 1976), 539 F.2d 882, cert. denied, 429

U.S. 1062, 97 S.Ct. 787, 50 L.Ed.2da 777].

Measured by these standards, isn't there at

least a jury question as to whether Larry

Williams qualifies as an all-purpose public

figure? Is Williams a celebrity whose name is a

A-21

household word and whose ideas and actions

the public follows with great interest? There

is no evidence that thé general public is even

aware of his many publications and activities.

Nor is there evidence of the impact of his

activities on the public. ©

It is equally important to note other facts

disclosed by the record:

(1) Williams was not a public official;

(2) Williams did not inject himself into

the Pasma-Dunham controversy that gave rise to

the alleged libel;

(3) Prior to the alleged libel, Williams

had not served as an officer of the Republican @

Party, was not involved in promoting placement

of Initiative 86 on the ballot, and was not in-

volved in any activity in connection with the

John Connally campaign.

A party opposing summary judgment is

entitled to the benefit of all inferences that

may reasonably be drawn from the offered proof.

Mally v. Asanovich(1967), 145 Mont. 99, 105,

A-22

423 P.2d 294, 297. A case should never be

withdrawn from the jury unless it appears,

as a matter of law, that a recovery cannot be

had upon any view of the facts which the

evidence reasonably tends to establish. Miller

Insurance Agency v. Home Fire Etc. Ins. Co.

(1935), 100 Mont. 551, 561, 51 P.2d 628, 630.

Such is not the case here. The summary judgment

should be vacated and the case should proceed

to jury trial.

A-23

IN THE DISTRICT COURT OF THE THIRTEENTH

JUDICIAL DISTRICT OF THE STATE OF MONTANA,

IN AND FOR THE COUNTY OF YELLOWSTONE

LARRY WILLIAMS, ) Judge William J. Speare |

@

Plaintiff, )

)

vs. ) No. DV79-1996

)

JAMES PASMA, ) ORDER

)

Defendant. )

This cause is presently before the court

on plaintiff's Amended Complaint, which sets

forth three counts of alleged libel and defama-

tion of plaintiff's character by defendant.

The three counts all pertain to the same pub- @

lished statement but set forth different

theories of liability. County I, in essence,

claims libel per se; County II alleges the

defendant made the statement negligently and

is a negligence theory; Count III sets forth

that the statement is made maliciously. To

the Amended Complaint defendant has now filed

an Answer containing four defenses. The first

defense claims that the Complaint does not state

A-24

a cause of action; the second defense is a

general denial of the entire Complaint, except

that the defendant admits that he serves in the

capacity as Democratic National Committeeman

from the State of Montana and is a resident

of Havre; the third defense affirmatively

alleges that the plaintiff is a public figure,

and any statements about plaintiff were either

true or made witout malice; and the fourth

defense sets forth affirmatively that the

statements by defendant were true and were

privileged under §27-1-804, MCA.

The parties have taken depositions, have

had requests for admissions, have filed affida-

vits; and certain interrogatories have been

answered. There presently pends before the

court plaintiff's Motion to Strike the Affir-

mative Defenses from Defendant's Answer and

Plaintiff's Motion for Partial Summary Judgment.

There also pends before the court defendant's

renewed Motion for Sanctions and Defendant's

Motion for Summary Judgment.

The court has heard argument of counsel

A-25

and has considered the memoranda and briefs

filed herein and has considered all the files,

records and proceedings herein; and good cause

appearing therefor,

IT IS ORDERED that plaintiff's Motion to

Strike defendant's Answer in certain respects

is hereby DENIED; and

IT IS FURTHER ORDERED that plaintiff's

Motion for Partial Summary Judgment be, and

hereby is, DENIED;

IT IS FURTHER ORDERED that defendant's

Motion for Sanctions against plaintiff be, and

hereby is, DENIED;

IT IS THE FURTHER ORDER that it has been

established herein material facts as to which

there is no issue as follows:

1. On October 26, 1979, the defendant

published and caused to be published and cir-

culated widely by the Great Falls Tribune news-

paper on October 27, 1979, a statement which

included mention of the plaintiff;

2. That said statement appeared as

follows in the October 27, 1979, issues of the

A-26

Great Falls (Montana) Tribune:

"A Democratic Party official Friday

accused state Republican spokesman Ken

Dunham of making statements about

Democrats that were 'short on content

and long on poor taste and bad manners.'

Democratic national committeeman

Jim Pasma, Havre, took issue with comments

Dunham made this week about Public

Instruction Supt. Georgia Ruth Rice

and her possible Democratic opponent,

Judi Fenton. Rice also is a Democrat.

Dunham had questioned Rice's compe-

tency and said he was disturbed that

Democrats would consider nominating

"another bureaucrat" like Fenton for the

job. Pasma called Dunham's comments

"typical of the traditional negative

chatter that comes from the Republican

state office.' He said Dunham's press

releases, which included a ‘vicious

personal attack' on Rice and ‘an equally

unbecoming media salvo' against Fenton

"may very well set the tone for the

type of campaign rhetoric we can expect

from the GOP in 1980.'

Pasma said it was ironic that on

the same day that Dunham attacked the

Democrats, a story ran indicating that

former Republican Gov. Tim Babcock and

Larry Williams, unsuccessful 1978 GOP

Senate candidate, were among the leaders of

a state committee promoting the presi-

dential candidate John Connally.

‘When we consider that all three

have at one time or another been under

federal indictment for political and

financial shenanigans, it is small wonder

to me at least that Ken Dunham busies

himself calling attention to what he

considers the shortcomings of possible

Democratic opponents,' Pasma said."

3. That the defendant is, and at all

times mentioned herein was, a Democratic

A-27

national committeeman from the State of

Montana and a citizen and resident of the City

of Havre;

4, The defendant at the time that said

statement was made was neither a publisher or

broadcaster or employed as such in any publi- Yd

shing or broadcasting media;

5. That the plaintiff at no time had

been "under federal indictment for political

and financial shenanigans" or, for that matter,

under federal indictment at all;

6. On January 30, 1978, the above-

named plaintiff, LARRY WILLIAMS, publicly

announced his candidacy as a member of the @

Republican party for the position of United

States Senator for the State of Montana;

7. That said plaintiff's said candidacy

was maintained continuously from January 30,

1978, until the general election held in

November, 1978. That during that period,

plaintiff made speeches; appeared on television;

placed or authorized placement of advertise-

ments on campaign posters, in newspapers and

on television, all of which were for the

A-28

purpose of publicly advocating his own candi-

dacy; for the purpose of urging defeat of his

opponents for such candidacy; for the purpose

of criticizing the public actions and

policies of his opponents, particularly Max

Baucus; for the purpose of criticizing the

fiscal, economic and monetary policies of his

opponents and of the Democratic party and

urging and advocating a reversal or abandon-

ment of such policies and urging different

policies regarding such subjects as taxation

and public spending. Such activity occurred

during the period of his aforesaid candidacy

to, and including, the date of November 10,

1978;

8. That between the dates of November 10,

1978, and October 27, 1979, said plaintiff,

Larry Williams, was a member of the National

Taxpayers Union. He was publicly known, during

that period, as Montana Representative of the

National Taxpayers Union and, as such, made

public statements relating to the influencing

of governmental policy relating to, and

A-29

criticizing, governmental budgets, expendi-

tures and economic policies thereof. During

that period, he was the coordinator of drives

and programs of the National Taxpayers Union

within the State of Montana;

9. Prior to October 26, 1979, plaintiff @

was a member of a political committee in the

State of Montana, the purpose of which

committee was to raise funds, organize in

various counties and to talk to persons urging

the political candidacy of one John Connally

for Republican nominee as President of the

United States. Plaintiff's activity in this

regard was publicly known and publicly ©

announced as being state chairman of the

"Connally for President Committee" in the

State of Montana;

16. In the summer of 1979, plaintiff

attended a public Republican convention and

there gave a speech favoring the candidacy of

one Ben Nordell, who was seeking Republican

party office. Mr. Nordell subsequently

appointed plaintiff finance chairman for the

A=-30

Montana Republican party;

ll. On or before October 27, 1979,

plaintiff as a public figure and Republican

party member and candidate and active member

of the Montana Taxpayers Union who voluntar-

ily expressed, publicly, views and criticisms

of governmental spending policies and contro-

versies contending the same and also as to

public controversies relating to political

candidacies both within, and outside of, the

Republican party. On or before October 27,

1979, defendant knew plaintiff as such a public

figure and candidate and an avowed, practicing

member of the Republican party;

12. In preparation and forwarding of the

press release and statement, subject of the

within litigation, and insofar as same relates

to plaintiff, defendant was relying on publi-

shed newspaper accounts which indicated and

conveyed to him that what he stated in the said

press release was true;

One of the newspaper reports upon which

defendant based his said belief appeared in

A-31

the Billings Gazette on June 3, 1978, and

stated:

"Court records show that Williams was

three times charged with violations

of federal regulations covering commo-

dities and security-investment counsel-

ors." @

Defendant had seen other publicity to the same

effect and had no reason to believe that the

accounts were not true nor that there was

any difference between the terms "charged with

violation of federal regulations covering

commodities and security-investment counselors"

and "federal indictment for political and

financial shenanigans". Defendant's purposes

in arranging for release of said statement

was to inform the public as to what he believed

to be shortcomings of certain Republican party

members as candidates for public office and

as party officials, including plaintiff;

13. Beginning on January 30, 1978, and

continuing through October 26, 1979, and

beyond, plaintiff was a public figure. He

was a candidate for public office who,

after such candidacy terminated, continued as

a public figure; as a member and officer of

A-32

a political party; as a representative of

the National Taxpayers Union; as an active

member and leader of a political organization

promoting the Republican nomination of a

candidate for President of the United States;

and as a promoter of an initiative to be placed

on a public ballot. Plaintiff, during said

period, publicly, prominently, actively and as

a leader, injected himself into public dis-

cussion of public and controversial questions;

14. Plaintiff was a public figure at the

time of the release of the statement which is

the subject of this litigation;

15. Defendant's making and publishing of

the statement as aforesaid was not done with

malice or reckless disregard of the truth

thereof;

16. There are no other, or any, issues

as to any material facts herein, and defendant

is entitled to summary judgment as a matter

of law.

IT IS THEREFORE ORDERED that defendant's

Motion for Summary Judgment be, and the same

A-33

hereby is, GRANTED, and that judgment for

defendant be entered forthwith as herein pro- *

vided.

DATED this / day of January, 1982.

/s/ William J. Speare

DISTRICT JUDGE

cc: Counsel of record

Gerald J. Neely

Peter M. Meloy

A-34