Petition for Writ of Certiorari — Oliver v. Lewis

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M4 241 auc} 0 1994

No.

OFFICE UE THE clerk

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1994

ROBERT J. OLIVER and

WESTCOR AVIATION, INC.,

an Arizona corporation,

Petitioners,

Vv.

BRADFORD W. LEWIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

ARIZONA COURT OF APPEALS

PETITION FOR A WRIT OF CERTIORARI

Daryl M. Williams

Counsel of Record

MURPHY & POSNER

300 Biltmore Commerce Center

3200 East Camelback Road

Phoenix, Arizona 85018

(602) 224-5900

August 9, 1994

Sai ae See

i

QUESTION PRESENTED

Whether the Arizona Court of Appeals correctly

decided that "actual malice," as defined by New York Times

Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny, ina

defamation action brought by a public official can be

shown solely by evidence of spite or ill will alone.

il

PARTIES TO THE PROCEEDING

Petitioner Robert J. Oliver is the President and Chief

Executive Officer of Petitioner Westcor Aviation, Inc., an

Arizona corporation that has no parent corporation.

Respondent Bradford W. Lewis is a public official

employed by the Federal Aviation Administration.

iil

TABLE OF CONTENTS

QUESTION PRESENTED ..................... i

PARTIES TO THE PROCEEDING ............. il

TABLE OF AUTHORITIES ................... iv

eee 1

EE, Ce ve neh ans ccssscancseecevess 2

CONSTITUTIONAL PROVISIONS INVOLVED ... 2

A ee ee a eee ee 3

REASONS FOR GRANTING THE PETITION ..... 8

I. THE ARIZONA COURT OF APPEALS’

DECISION CONFLICTS WITH NEW YORK

TIMES AND MANY OTHER DECISIONS OF

eo Ee er a er a ee 9

II. THE ARIZONA COURT OF APPEALS DECISION

ALSO CONFLICTS WITH DECISIONS OF

MOST, IF NOT ALL, STATE APPELLATE

COURT DECISIONS THROUGHOUT THE

VARIOUS STATES AND EVERY FEDERAL

es 12

III. RESOLUTION OF THIS CONFLICT IS A

MATTER OF GREAT NATIONAL IMPORTANCE,

AND INVOLVES A FUNDAMENTAL RIGHT 16

dna :4- 6-4 5 004.0 64 0's 48 920 50 86-8. 0 88 18

iv

TABLE OF AUTHORITIES

Cases: Page(s):

Beckley Newspapers Corp. v. Hanks, 389 U.S. 81

SRE Paw oN ob aha eRe ED Cask eee ees 10

Bose Corp. v. Consumer’s Union of the United States, Inc.,

GD Ces Ge CED oc cc ccvcavvcans 8, 10, 11, 14

Burke v. Deiner, 97 N.J. 465, 479 A.2d 393 (1984) .....

13, 14

Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) .. 10

Garson v. Louisiana, 379 U.S. 64 (1964) ...... 10, 11

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ... 11

Greenbelt Cooperative Publishing Ass’n. v. Bresler, 398 U.S.

WENO Gah Aces hee Seeks aah uke 10, 11, 14

Harte-Hanks Communications, Inc. v. Connaughton, 491

Ue Gl, 10P SAL. BOR CISSF) on vc cece. 11

Henry v. Collins, 380 U.S. 356 (1965) ........... 10

Herbert v. Lando, 441 U.S. 153 (1979) ........... 11

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) 11

Jacobs v. Frank, 60 Ohio St.3d 111, 573 N.E.2d 609

CRS a ae ee aa ee ee ee 14, 15

Letter Carners v. Austin, 418 U.S. 264, 281 (1974) .. 11

Lewis v. Oliver, 873 P.2d at670................ 5-8

Masson v. New York Magazine, Inc., 111 S.Ct. 2419

SRE card akc seater scarcer eek 11

McDonald v. Smith, 472 U.S. 479 (1985) ......... 11

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) .... 10

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . i,

6-13, 15, 16

Ocala Star-Banner Co. v. Damron, 401 U.S. 295

STE a as a eed ee hale a oe ae ea eee 10

Palmer v. BRG of Georgia, Inc., 111 S.Ct. 401 (1990)

Rosenblatt v. Baer, 383 U.S. 75, 85 (1966) . 7, 10, 11, 18

Vv

Rosenblum v. MetroMedia, Inc., 403 U.S. 29 (1971) . 10

Smith v. McDonald, 895 F.2d 147, 150 (4th Cir. 1990), cert.

denied, 498 U.S. 814 (1990) ................. 17

St. Amant v. Thompson, 390 U.S. 727 (1968) ...... 10

Time, Inc. v. Pape, 401 U.S. 279 (1971) .......... 10

Statutes:

Mt Me DIET hips ek ee ee 2

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

ROBERT J. OLIVER and

WESTCOR AVIATION, INC..

an Arizona corporation,

Petitioners,

Vv.

BRADFORD W. LEWIS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

ARIZONA COURT OF APPEALS

Robert J. Oliver and Westcor Aviation, Inc. hereby

petition for a writ of certiorari to review the judgment in

this case of the Arizona Court of Appeals.

OPINIONS BELOW

The opinion of the Arizona Court of Appeals (App. la

- 32a) is reported at 873 P.2d 668 (Ariz. App. 1993). The

order of the Superior Court of Arizona. Maricopa County,

that granted summary judgment in favor of petitioners is

2

not published, but it is included in the appendix at 33a -

37a. The Arizona Supreme Court’s order denying

petitioners’ petition for review is not published; it is

included in the appendix at 38a-39a.

JURISDICTION

The Arizona Court of Appeals rendered its judgment

on October 14, 1993. A petition for review was denied by

the Arizona Supreme Court on May 18, 1994. This Court

has jurisdiction under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

This case arises under the right to petition clause of the

First Amendment to the Constitution of the United States:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or the press; or the right of the people

peaceably to assemble, ana to petition the

Government for a redress of grievances.

The Fourteenth Amendment to the Constitution of The

United States provides, in part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

el acaba

3

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT

1. THE FAA INVESTIGATION

Petitioners are an air carrier, Westcor Aviation, Inc..,

and its president, Robert J. Oliver. Respondent is an

inspector with the FAA. In July, 1986, the respondant

headed an FAA inspection of Westcor Aviation’s

operations.’ As a result of the inspection and respondent’s

recommendations, the FAA sought to revoke the air

carrier certificate for Westcor Aviation, and the individual

pilot certificates of Westcor’s pilots.

Respondent’s investigation ultimately led to trial

proceedings in early 1988 before the National

Transportation Safety Board. The charges against Oliver

were dismissed by the trial judge, but the charges against

two other Westcor pilots and Westcor Aviation were

As an air carrier, Westcor Aviation had had many such

inspections both before and after the July, 1986, inspection involved

here. However, the July, 1986 inspection is the only one which was

headed by the respondent, and is the only one that has ever resulted in

any type of enforcement action against Westcor or its pilots.

4

sustained, and their certificates were ordered revoked. On

appeal, however, the revocation actions against Westcor’s

pilots were overturned. Before the Westcor Aviation

appeal was exhausted, the FAA and Westcor entered into

a settlement agreement that mooted the remaining appeal

because the revocation order against Westcor was, by

agreement, vacated and no other FAA action was taken

against Westcor.

After the trial level proceedings before the NTSB,

petitioner made the complaints that are the subject of this

defamation action. Oliver called the Department of

Transportation hotline and complained to the Office of

the Inspector General of the United States about the way

respondent conducted his July, 1986, inspection; Oliver

also complained about the disproportionate harshness of

the penalties sought by the FAA as a result of

respondent’s report.

As a result of this hotline complaint, a special agent

was assigned to investigate. That agent, Robert

Guthmiller, made an extensive investigation into Oliver’s

charges, culminating in a report of almost 1,500 pages that

included affidavits, transcripts of proceedings before the

NTSB and a great deal of other documentation. This

5

report does not draw a conclusion about the truth or

falsity of Oliver’s complaint, Lewis v. Oliver, 873 P.2d at

670, and, as the record below shows, the inquiry by the

Inspector General’s office was still ongoing when the trial

court entered summary judgment in this matter. The

respondent and his immediate superior had been given a

copy of the report and had, as shown by the record, jointly

prepared an "exoneration", but that joint workproduct was

in the nature of a rebuttal, not a conclusion of the

investigation.

Oliver’s complaints to the Inspector General were that

Lewis engaged in "an abuse of authority by FAA inspector

Bradford Lewis, which manifested [itself] in alleged

perjury by [Lewis] during a hearing before the National

Transportation Safety Board." These complaints were the

reason for the defamation action. See, Lewis v. Oliver, 873

P.2d 668, 670-71 (Ariz. App. 1993).

2. THE TRIAL COURT PROCEEDINGS

In the trial court, petitioners filed a motion for —

summary judgment, asserting that petitioner’s complaints

were protected speech under the First Amendment’s right

to petition the government for redress of grievances.

6

Petitioners also argued that the allegedly defamatory

Statements were absolutely privileged because the FAA,

through its official investigation, acted in a quasi-judicial

capacity. Lewis v. Oliver, 873 P.2d at 672. In the

alternative, petitioners maintained that Bradford Lewis, as

an inspector for the FAA, was a public official who had to

and could not meet the "actual malice" standard of New

York Times and its progeny to sustain a defamation action.

Id., at 674. The trial court ruled that the petitioner’s

Statements were absolutely privileged because they arose

during a quasi-judicial, official investigation conducted by

the Department of Transportation. Id., at 672.

Consequently, the trial court did not address the issue of

whether respondent had established the requisite actual

malice.

3. THE ARIZONA COURT OF

APPEALS DECISION

The Arizona Court of Appeals reversed. The court

first held that the allegedly defamatory statements were

only conditionally rather than absolutely privileged. /d., at

673. Thereafter, the court addressed the issue of whether

Lewis was a "public official" in his role as an FAA

7

inspector. Quoting this Court’s holding in Rosenblatt v.

Baer, 383 U.S. 75, 85 (1966), the court of appeals noted:

Where a position in government has such apparent

importance that the public has an independent

interest in the qualifications of the person who

holds it, beyond the general public interest in the

qualifications and performance of all government

employees, both elements we identified in New

York Times are present and the New York Times

malice standards apply.

Lewis, 873 P.2d at 674 (quoting Rosenblatt v. Baer, 383

U.S. 75, 85 (1986). Based upon this finding, the court of

appeals held that Lewis was a public official under the

Rosenbiatt test. Id., at 675.

Because the court determined that Lewis, as matter of

law, was a public official, the court held that he had to

establish actual malice in order to recover for defamation.

Id. The court, nonetheless, concluded that evidence of

petitioner’s purported motives, spite or ill-will was

sufficient to create a jury question with respect to whether

petitioners acted with “actual malice.”

* The lower court implicitly assured that the

complaints to the Inspector General were false or, at least,

a jury question when, in fact, the petitioners have always

maintained they are true.

8

As pointed out by Judge Noyes’ dissent, the "evidence"

of actual malice upon which the majority relied was

allegations of ill will alone. Judge Noyes’ dissent correctly

tte

points out that "‘actual malice’ has a special meaning and

a heightened burden of proof" in a defamation action

brought by public official or public figure.

The burden of proving "actual malice" requires the

plaintiff to demonstrate with clear and convincing

evidence that the defendant realized that his

Statement was false or that he _ subjectively

entertained serious doubt as to the truth of his

Statement.

Id., at 677 (Noyes, J., dissenting)(quoting Bose Corp. v.

Consumer’s Union of the United States, Inc., 466 U.S. 485,

511 n. 30 (1984).

REASONS FOR GRANTING THE PETITION

As the dissent points out, the majority opinion in this

case misconstrues the long-standing, well-defined legal

distinction between common law malice, on the one hand,

and the New York Times’ term of art, actual malice, on the

other. Faced squarely with a defamation case brought -by

a public official against a non-media defendant in the

context of petitioning the government for redress of a

9

grievance, the Arizona Court of Appeals has effectively

negated some 30 years of this Court’s precedent and

precedent from virtually every other jurisidiction in the

United States. The court below has ruled that a showing

of ill will or "malice" in the ordinary sense of the term is

equivalent to the "actual malice" required by New York

Times, a term that has nothing to do with bad motive or

ill will. Important, fundamental, First Amendment rights

have thus been abrogated, and if not reversed, this opinion

can and likely will be cited and relied upon by public-

official litigants in Arizona and perhaps elsewhere to

circumvent the public’s First Amendment protections.

I. THE ARIZONA COURT OF APPEALS’

DECISION CONFLICTS WITH NEW YORK TIMES

AND MANY OTHER DECISIONS OF THIS COURT

The Arizona Court of Appeals’ decision in this case is

a Significant deviation from First Amendment

jurisprudence. This Court first delineated the relationship

between the First Amendment and defamation law in 1964

with the landmark decision of New York Times, Co. v.

Sullivan, 376 U.S. 254 (1964).

10

New York Times established a federal rule, premised on

"constitutional guarantees,” prohibiting recovery by a

public official for defamatory 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." New York Times, 376 U.S. at 279-80. Moreover,

Judges, as expositors of the Constitution, must

independently decide whether the evidence in the

record is sufficient to cross the constitutional

threshold that bars the entry of any judment that is

not supported by clear and convincing proof of

"actual malice."

Bose Corp. v. Consumer’s Union of the United States, Inc.,

466 U.S. 485 (1984).

This Court’s decisions subsequent to New York Times

have expanded and clarified the privilege created by New

York Times with the obvious intention of fostering public

debate.’ The New York Times actual malice standards are

See, e.g., Garson v. Louisiana, 379 U.S. 64 (1964); Henry v.

Collins, 380 U.S. 356 (1965) (per curiam); Rosenblatt v. Baer, 383 U.S.

75 (1966); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) (per

curiam); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); St. Amant

v. Thompson, 390 U.S. 727 (1968); Greenbelt Cooperative Publishing

Ass'n. v. Bresler, 398 U.S. 6 (1970); Monitor Patriot Co. v. Roy, 401 U.S.

265 (1971); Time, Inc. v. Pape, 401 U.S. 279 (1971); Ocala Star-Banner

Co. v. Damron, 401 U.S. 295 (1971); Rosenblum v. MetroMedia, Inc.,

1]

applicable to the First Amendment’s right to petition

clause. McDonald v. Smith, 472 U.S. 479 (1985).

This Court’s holdings since New York Times reaffirm

that actual malice, in the constitutional sense, differs

dramatically from the pre-New York Times concept. The

traditional, common law definition of malice equated it

with bad or evil motive, spite, ill will, intention to injure,

or hatred. However, publication with these motives alone

does not satisfy the New York Times constitutional

standard, and actual malice can never be inferred from the

mere presence of such factors. Letter Carriers v. Austin,

418 U.S. 264, 281 (1974); Greenbelt Cooperative Publishing

Ass'n. v. Bresler, 398 U.S. 6, 10 (1970); Rosenblatt v. Baer,

383 U.S. at 84; Garrison v. Louisiana, 373 U.S. at 73.

Against this backdrop, the Arizona Court of Appeals

opinion is off the mark. The lower court held that

evidence of spite or ill will alone is sufficient to allow a

public official’s defamation claim to go to a jury for it, the

403 U.S. 29 (1971); Genz v. Robert Welch, Inc., 418 U.S. 323 (1974);

Herbert v. Lando, 441 U.S. 153 (1979); Bose Corp. v. Consumer’s Union

of the United States, Inc., 466 U.S. 485 (1984); Hustler Magazine, Inc. v.

Falwell, 485 U.S. 46 (1988); Harte-Hanks Communications, Inc. vy.

Connaughton, 491 U.S. 657, 109 S.Ct. 2678 (1989); Masson v. New York

Magazine, Inc., 111 S.Ct. 2419 (1991).

12

jury, to decide if "actual malice" exists. This ruling is

entirely inconsistent with this Court’s prior rulings, and

could be summarily reversed on this basis alone without

affecting this Court’s docket.

II. THE ARIZONA COURT OF APPEALS

DECISION ALSO CONFLICTS WITH

DECISIONS OF MOST, IF NOT ALL,

STATE APPELLATE COURT DECISIONS

THROUGHOUT THE VARIOUS STATES

AND EVERY FEDERAL CIRCUIT COURT

Not only does the court of appeals decision circumvent

the long-standing, First Amendment principles espouse 4

by this Court, it is also in conflict with virtually all other

states’ resolution of this issue. Indeed, in 47 other states*

courts have found themselves constrained by New York

Times, ruling that "actual malice" is not the same as

common law malice, and these cases hold that in the

context of defamation actions a showing of "knowledge

* No reported cases were found in New Hampshire or South

Dakota.

seineiaiaaeiaeiiii taal

13

that [the defamatory statement] was false or with reckless

disregard of whether it was false or not" is required.°

Burke v. Deiner, 97 N.J. 465, 479 A.2d 393 (1984), is

illustrative of the state court decisions. In Burke, the

executive director of the New Brunswick Parking

Authority lost his job as the result of an investigation and

audit of the Parking Authority. The audit report resulted

in the municipal authority adopting a resolution that,

among other things, charged the plaintiff with "negligent

operation of the Parking Authority, which borders on

misappropriation or misuse of the property of the

Authority." /d., 97 NJ. at 468-69, 479 A.2d at 394-95.

Plaintiff thereafter brought a defamation claim against the

Authority; a jury awarded plaintiff damages. The

appellate division affirmed the award, id., at 469, 479 A.2d

at 395, but the New Jersey Supreme Court reversed. The

New Jersey Supreme Court held that the evidence failed

to establish the presence of New York Times "actual

malice."

In applying the New York Times standard, the cases

have uniformly emphasized that the jury is not to

> Cases from these 47 jurisdictions are cited in the appendix at

40a - 42a.

14

look for evidence of spite or ill will to judge the

actor's speech. [citation omitted]. In Greenbelt

Coop. Publishing Ass'n. v. Bresler, 398 U.S. 6, 90

S.Ct. 1537, the Court held that an award of

compensatory and punitive damages for a

description of the claimants negotiating position as

"blackmail" could not be sustained by allowing the

jury to base its verdict on "spite, hostility or

deliberate intention to harm."

Id., at 477, 479 A.2d at 399-400. The court went on to say

that "judges, as expositors of the constitution, must

independently decide whether the evidence in the record

is sufficient to cross the constitutional threshold that bars

the entry of any judgment that is not supported by clear

and convincing proof of ‘actual malice”. /d., at 481, 479

A.2d at 402 (quoting Bose Corp. v. Consumer’s Union of

U.S., Inc., 466 U.S. 485 (1984)). Unlike Arizona, the New

Jersey court held that the issue of actual malice should not

be presented to the jury. /d.

Another illustration of the state court decisions is

Jacobs v. Frank, 60 Ohio St. 3d 111, 573 N.E.2d 609

(1991). in that case, a director at the College of Podiatric

Medicine was sued for defamation because of a letter he

wrote to the State Board of Medicine regarding a former

resident’s fitness to practice. The board was investigating

15

the plaintiff's character and fitness to be licensed, and the

director sent his letter at the board’s request. /d., 60 Ohio

St. 3d at 112, 573 N.E.2d at 611. The director’s letter said

that he did not believe the candidate was ethical or

honest, that the candidate did not get along well with

others and that the candidate’s character was poor,

although his professional ability was adequate. Jd. In

holding that the plaintiff failed to show clear and

convincing evidence that the director acted with actual

malice, the Ohio Supreme Court said:

The New York Times public official definition of

“actual malice" requires that the publication be

made with knowledge that it was false or with

reckless disregard for its truth or falsity. Public

official actual malice requires more than evidence

of ill will, spite, or ulterior motive; the libeled

plaintiff must prove with convincing clarity that the

defendant had a high degree of awareness of the

probable falsity of the published statements.

Id., at 115, 573 N.E.2d at 613. The court then

differentiated between New York Times malice and

common law malice, holding that the plaintiff had failed

to meet his burden of showing a genuine issue of material

fact on the issue of actual malice. /d., at 119, 573 N.E.2d

at 616.

16

Cases such as these remain faithful to the First

Amendment concerns delineated by this Court in New

York Times and highlight the inherently flawed reasoning

of the case sub judice. By essentially adopting the ordinary

definition of malice and applying it to defamation actions

brought by public officials, the Arizona courts have

effectively negated 30 years of jurisprudence and

completely dismantled the constitutional protections

afforded to Arizona citizens seeking governmental redress

of grievances. The lower court’s decision also conflicts

with every federal circuit.°

III. RESOLUTION OF THIS CONFLICT IS A

MATTER OF GREAT NATIONAL IMPORTANCE,

AND INVOLVES A FUNDAMENTAL RIGHT

This case does not present a typical defamation action.

Rather, the Arizona Court of Appeals here was faced with

allegedly defamatory remarks concerning a public official

made in the context of an official investigation of that

public official. Moreover, these purportedly defamatory

remarks were not published "to the world"; instead, they

° Cases from the federal circuit courts are cited in the appendix at

42a - 43a.

17

were made to the Inspector General of the United States

and investigators on his staff. Clearly, this case presents

a compelling one for the Court to examine, if not reversed

summarily.

The context of the purportedly defamatory remarks is

critical to the understanding of just how far afield of First

Amendment principles the Arizona Court of Appeals has

gone. Petitioner made an official complaint through the

hotline of the Department of Transportation. The

Inspector General of the United States conducted a full-

blown investigation into petitioner’s purportedly

defamatory allegations, resulting in an official report

consisting of some .1,500 pages. The purportedly

defamatory statements made by petitioner were made to

officials from the office of the Inspector General of the

United States, whose obligation was to "investigate facts or

ascertain the existence of facts, and draw conclusions from

them, as a basis for . . . official action." Smith v.

McDonald, 895 F.2d 147, 150 (4th Cir. 1990), cert. denied,

498 U.S. 814 (1990).

Clearly, this case concerns a fundamental right

guaranteed by the United States Constitution. Indeed,

"criticism of government is at the very center of the

18

constitutionally protected area of free discussion.

Criticism of those respons. le for government operations

must be free, lest criticism of government itself be

penalized." Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

Petitioner merely sought to exercise this right, and the

Arizona Court of Appeals’ decision undoubtedly will

dissuade others from exercising this right.

CONCLUSION

In this case, the Arizona Court of Appeals has turned

aside from 30 years of this Court’s holdings concerning

constitutionally protected speech. Accordingly, this

decision can and should be summarily reversed. See,

Palmer v. BRG of Georgia, Inc., 111 S.Ct. 401 (1990).

Alternatively, the petition for a writ of certiorari should be

granted.

Respectfully submitted,

Daryl M. Williams

Counsel of Record

MURPHY & POSNER

300 Biltmore Commerce Center

3200 East Camelback Road

Phoenix, Arizona 85018

August 9, 1994

APPENDICES

la

APPENDIX A

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

No. 1 CA-CV 91-0336

BRADFORD W. LEWIS

Plaintiff-A ppellant

V.

ROBERT J. OLIVER and

WESTCOR AVIATION, INC.

Defendants-A ppellees

Appeal from the Superior Court of Maricopa County

Cause No. CV 90-01506

REVERSED AND REMANDED

LAWRENCE ANDERSON, Judge

2a

M.E. Rake Jr., Thomas J. Shorall, Jr., Sharon E.

Ravenscroft, RAKE, McGOVERN SHORALL &

COHEN, P.C. for Plaintiff-Appellant.

Daryl M. Williams, MURPHY & POSNER for

Defendants-Appellees.

SARAH D. GRANT, Presiding Judge:

In this appeal we hold that a complaint made to

superiors of a safety inspector of the Federal Aviation

Administration ("FAA") is entitled to a qualified, but not

an absolute privilege. We also hold that an FAA safety

inspector is a public official who must establish a

defendant’s actual malice in making defamatory

Statements concerning the performance of the inspector’s

job. Because the plaintiff presented evidence sufficient to

create a jury question on whether the defendant acted

with actual malice, we reverse the grant of summary

judgment for the defendant and remand to the trial court

for further proceedings.

FACTS AND PROCEDURAL HISTORY

The appellant, Bradford Lewis ("Lewis"), appeals from

summary judgment in favor of the appellees, Westcor

Aviation, Inc. ("Westcor"), and its president and chief

executive officer, Robert J. Oliver ("Oliver"). Because this

losaiaeanniannaiemaeamaainaumameaiiaiaiaaaiiae

3a

is an appeal from summary judgment, we view the facts in

the light most favorable to the appellant. Gordinier v.

Aetna Casualty & Sur. Co., 154 Ariz. 266, 267, 742 P.2d

277, 278 (1987).

Lewis is an aviation safety inspector with the Federal

Aviation Administration. In his inspection of air

transportation providers, if he finds violations of FAA

safety regulations during his inspections, he recommends

action to his superiors. He has no discretion to impose

sanctions himself against the air transportation carriers he

inspects for safety violations. He merely reports his

findings to superiors, who are responsible for determining

any course of action.

In July of 1986, Lewis was assigned by his supervisors

to lead a team of inspectors conducting an in-depth

inspection of Westcor. Lewis reported numerous

violations of safety regulations and recommended that

Westcor be sanctioned. His superiors agreed. As a result

of the inspection, the FAA sought to revoke both

Westcor’s air carrier certificate and Oliver’s pilot

certificate. An administrative hearing before the National

Transportation Safety Board was held at which Lewis

testified against Oliver and Westcor. The administrative

4a

law judge found that Oliver and Westcor were responsible

for falsifying records and ordered revocation of Westcor’s

air carrier certificate. The FAA later settled the affair

with Westcor and Oliver and agreed to drop the

revocation charges.

On July 18, 1988 Oliver called a "Hotline" established

by the Inspector General’s Office of the Department of

Transportation. He complained about Lewis and the

propriety of the inspection and enforcement action. The

Inspector General’s office assigned Special Agent Robert

Guthmiller ("Guthmiller") to investigate Oliver’s

complaint.

Guthmiller prepared a report of his investigation, which

he submitted to Lorence Bessette ("Bessette"), Lewis’s

superior. Bessette reviewed the report and prepared an

analysis in which he concluded that Lewis had committed

no misconduct and should be exonerated of all of Oliver’s

charges. Bessette concluded essentially that Oliver’s

accusations twisted Lewis’s testimony. On September 14,

1989, Oliver met with Bessette to discuss the latter’s

analysis. Present at the meeting, in addition to Oliver and

Bessette, were David Welsh of Westcor, and Oscar Culp

and Leonard Levandowski of the FAA. Oliver accused

i ita ait

Sa

Lewis of perjury and abuse of authority at this meeting.

Bessette took notes and produced a record of the meeting

in which he wrote:

He [Oliver] made it very clear that he was out to

get Lewis and stated, "I will continue to use the

system to the fullest and will not back off until I

get Lewis."

I asked him why he was picking on the lowest man

in the organization structure as Lewis did not have

the power that he was assigning to him. I

explained to him that an inspector can only report

what he sees and that the responsibility for taking

enforcement action was coordinated through his

unit supervisor, office manager, Division staff, and

ultimately Western Pacific Regional Counsel

(AWP-7) before any decision to take legal action is

made. He answered that with an analogy that

Lewis was like a traffic cop hiding in the bushes

and catches him speeding. I asked him that if he

was speeding and he was caught why would he go

after the cop if he was guilty. He responded,

"because he was laying for me and that was what

Lewis was doing, laying for me." Many times

during this meeting he would regress to his Marine

experience and colloquially express his feelings to

describe his intentions. In this case he stated,

"Lewis was on his six, and now, it’s his turn - I’m

on his." He stated that he planned to sue Lewis if

he could "draw him out from under the federal

cloak of protection."

6a

Oliver also caused others to file complaints against

Lewis. Lewis asserts that he was exonerated by the

internal investigation but Oliver’s accusations damaged his

reputation and harmed his chances for promotion at the

FAA.

Lewis filed his complaint on January 17, 1990, alleging

defamation intentional infliction of emotional distress,

intentional interference with business relationship and

conspiracy. Oliver filed a motion for summary judgment,

arguing: the claims were barred by the statute of

limitations; his statements were absolutely privileged; and

if the statements were only conditionally privileged the

privilege was not abused. The trial court granted the

motion holding: (a) the statements were absolutely

privileged; and (b) even if they were only conditionally

privileged, Lewis had failed to demonstrate sufficient

evidence of actual malice to justify a trial. The court

denied Lewis’s motion for new trial and entered final

judgment on April 8, 1991 and Lewis filed a timely notice

of appeal. We have jurisdiction pursuant to Ariz. Rev.

Stat. Ann. ("A.R.S.") sections 12-2101(B) and (F) (1).

7a

ISSUES

1. Are Oliver’s statements protected by

absolute or conditional privilege?

y Is Lewis a public onficial?

3. Has Lewis presented enough evidence of

actual malice to create a jury question?

4. Did the trial court err in\denying Lewis’s

motion under Rule 56(f), Arizona Rules of

Civil Procedure, for more time to respond

to the motion for summary judgment?

» Did Lewis have the legal and factual basis

to present the claims of intentional infliction

of emotional distress, interference with

business relationships and conspiracy to the

jury?

6. Is Lewis’s complaint for defamation barred

by the Statute of Limitations?

DISCUSSION

I. ABSOLUTE OR CONDITIONAL PRIVILEGE

We first consider the privilege issue. Oliver argues his

Statements were absolutely privileged, while Lewis argues

that only a conditional privilege applies.

There are two classes of privileges, "absolute" and

"qualified." The absolute privileges created by law

are based upon the recognition that certain

8a

persons, because of their special position or status,

should be as free as possible from fear that their

actions in that position might have an adverse

effect upon their own _ personal interest.

Restatement (Second) of Torts, Chapter 25, Topic

2, Title BE "Absolute Privilege Irrespective of

Consent," pp. 242-43. Qualified privileges are

limited to particular occasions requiring the

exchange of information reasonably thought to be

true. /d. |

Green Acres Trust v. London, 141 Ariz. 609, 612-13, 688

P.2d 617, 620-21 (1984). Whether a privilege arose is a

question of law for the court. /d., at 613, 688 P.2d at 621.

A question of law is reviewed de novo by this court.

Employer’s Mute Cas. Co. v. McKeon, 170 Ariz. 75, 821

P.2d 766 (App. 1991).

The difference between the absolute and qualified

privileges is significant. As to absolute privilege, "[t]he

defense is absolute in that the speaker’s motive, purpose

or reasonableness in uttering a false statement do not

affect the defense." Green Acres Trust, 141 Ariz. at 613,

688 P.2d at 621. The conditional privilege, on the other

hand, does not provide an absolute defense:

It differs from the defense of absolute privilege in

that "the interest which the defendant is seeking to

vindicate is regarded as having an intermediate

degree of importance, so that the immunity

9a

conferred is not absolute, but is conditioned upon

publication in a reasonable manner and for a

proper purpose." [William L. Prosser, Law of Torts,

§ 115, at 786 (4th ed. 1971)]. Absent a Z proper

purpose or reasonable manner of publication, the

defense fails. The privilege "give[s] protection from

liability only when exercised for the purpose for

which [it] is given and with reasonable care that no

more harm shall be done to the interests of others

than is necessary to accomplish the end for which

the privilege is given." Restatement (Second) of

Torts, Chap. 25, Topic 3, Title A; "Occasions

Making a Publication Conditionally Privileged," p. —

258.

Id., at 616, 688 P.2d at 624. The test to determine whether

a conditional privilege applies is to decide whether the

circumstances in which the communication was made

created an obligation to speak. /d., at 616, 688 P.2d at 624:

Miller v. Servicemaster by Rees, 123 Ariz. Adv. Rep. 34, 35,

851 P.2d 143 145 (App. 1992).

Oliver asserts that his statements fall under the judicial

privilege. He analogizes his hotline complaint to a

compiaint being filed or an informant giving information

to a government investigative body that launches an

official investigation. In support, he cites: Bailey v.

Superior Ct., 130 Ariz. 366, 636 P.2d 144 (App. 1981)

(complaint made to quasi-judicial body [judicial

10a

commission established to inquire into conduct of judges]

absolutely privileged); Drummond v. Stahl, 127 Ariz. 122,

618 P.2d 616 (App. 1980), cert. denied, 450 U.S. 967

(complaint made to quasi-judicial body [State Bar of

Arizona] about lawyer’s unethical conduct was absolutely

privileged); Smith v. McDonald, 895 F.2d 147, 149 (4th Cir.

1990), cert. denied, 498 U.S. 814 (1990)

("[C]jommunications made in the course of an

administrative proceeding are absolutely privileged if the

administrative officer or agency is exercising a judicial or

quasi-judicial function."); Angel v. Ward, 258 S.E.2d 788

(N.C. 1979) (certified public accountant’s call to IRS to

complain about an agent’s competence, and affidavit

provided at IRS request absolutely privileged as

"quasi-judicial").

The trial court agreed the statements were absolutely

privileged, finding support in Bailey v. Superior Ct., 130

Ariz. 366, 636 P.2d 144. In Bailey, an attorney’s complaint

filed with Commission on Judicial Qualifications contained

defamatory material about the plaintiff and she sued.

When the superior court denied the attorney’s motion for

summary judgment, Division Two of this court granted

special action relief. The court noted the absolute

lla

privilege that protects statements made in the course of

judicial and legislative proceedings. It held that the

judicial privilege applied to a complaint to the judicial

commission, "if the defamatory statements have some

relation to the judicial proceedings, even though they may

not constitute evidence relevant and material from a

strictly legal evidentiary viewpoint." 130 Ariz. at 368, 636

P.2d at 146 (emphasis in original).

We find Bailey and the other foregoing cases

distinguishable or inapposite. They are based on the

absolute privilege that inheres in judicial or "quasi-judicial"

proceedings.’ This court has previously held that- the

absolute privilege does not apply in administrative

proceedings. Melton v. Slonsky, 19 Ariz. App. 65, 504 P.2d

1288 (1973). In Melton, the defendant appeared at a

‘ Smith v. McDonald and Angel v. Ward are grounded

in the law of North Carolina, which grants an absolute

privilege in administrative proceedings:

"[(C]lommunications made in the course of an

administrative proceeding are absolutely privileged if the

administrative officer or agency is exercising a judicial or

quasi-judicial function." Smith v. McDonald, 895 F.2d at

149, citing Mazzucco v. North Carolina Bd. of Medical

Examiners, 31 N.C. App. 47, 228 S.E.2d 529, 532 (N.C.

App. 1976).

12a

meeting of the State Liquor Board and made unsworn

statements that the plaintiff had used bribery to obtain a

liquor license. We held the statements conditionally

privileged but shunned the “quasi-judicial” analysis:

In our opinion, both policies can best be served not

by granting or denying an absolute privilege based

upon the mere determination of whether a

particular administrative board possesses

"quasi-judicial" powers, but by extending a qualified

or defeasible privilege to statements made before

such boards. Such a qualified privilege was

recognized at common law as the "public interest"

privilege and "involves communications made to

those who may be expected to take official action

of some kind for the protection of some interest of

the public."

19 Ariz. App. at 68, 504 P.2d at 1291 (quoting Prosser,

supra, § 115 at 791); see also Miller v. Servicemaster by

Rees, 123 Ariz. Adv. Rep. at 35, 851 P.2d at 145

(conditional privilege for employees to report perceived

acts of sexual harassment). In Ross v. Duke, 116 Ariz. 298,

301, 569 P.2d 240, 243 (App. 1976), we stated that "[aJn

absolute privilege against a defamation charge arises in

the context of judicial proceedings) legislative proceedings

and administrative or executive functions of the

government." While this statement seems to conflict with

Melton v. Slonsky, it is clearly dictum.

13a

The court in Melton v. Slonsky appears to have applied

the following privilege stated in the Restatement:

Communication to One Who May Act in the Public

Interest

An occasion makes a publication conditionally

privileged if the circumstances induce a correct or

reasonable belief that

(a) there is information that affects a

sufficiently important public interest and

(b) the public interest requires the

communication of the defamatory matter to

a public officer or a private citizen who is

authorized or privileged to take action if the

defamatory matter is true.

Restatement (Second) of Torts § 598 (1977). This

privilege applies to protect the public’s interest "in the

honorable discharge of their duties by public officers. . . ."

Id., at § 598 comment d. The Restatement comments

show this privilege applies to the situation now before us:

e. Communications to public officials. The rule

stated in this Section is applicable to defamatory

communications to public officials concerning

matters that affect the discharge of their duties.

The duties of a public officer include supervision of

inferior officers, and this supervision in many cases

carries with it the power to remove or discipline

the inferiors for neglect of duty or malfeasance in

l4a

office, or to report the misconduct to heads of

departments or other persons having the power of

removal or discipline. In performing this duty of

supervision, it is desirable that public officers have

extensive information concerning the conduct of

their subordinates, in order that they may

intelligently exercise their discretion. Therefore, a

defamatory publication made by a citizen to a

public officer concerning the work of a subordinate

under his control or supervision is conditionally

privileged. ...

Id., at § 598 comment e. Section 598 is consistent with

this court’s holdings in Melton v. Slonsky and Miller v.

Servicemaster by Rees. Together they demonstrate that the

appellee’s statements were conditionally privileged. A

similar case is Bradley v. Computer Sciences Corp., where

the Fourth Circuit granted a conditional privilege to a

defense contractor’s complaint against a civil servant

because "presenting complaints to responsible government

officials about the conduct of their subordinates with

whom the complainer has had official dealings is

analogously central to the protections of the right to

petition" granted under the First Amendment to the

United States Constitution. 643 F.2d 1029, 1033 (4th Cir.

1981) (quoting Stern v. United States Gypsum. Inc., 547

1Sa

F.2d 1329, 1342-43 (7th Cir.), cert. denied, 434 U.S. 975

(1977)).

We hold that Oliver’s statements were not absolutely

but conditionally privileged. If Oliver abused the

conditional privilege, Lewis may still recover. A plaintiff

may establish abuse of a conditional privilege by showing

either (1) actual malice, ie, with knowledge of its

falseness or with reckless disregard of whether it was true

or not; or (2) excessive publication, ie., publication to an

unprivileged recipient not reasonably necessary to protect

the interest upon which the privilege is grounded. Green

Acres Trust, 141 Ariz. at 616, 688 P.2d at 624; Melton v.

Slonsky, 19 Ariz. App. at 68, 504 P.2d at 1291.

Before examining whether Oliver abused the

conditional privilege we turn to the constitutional issues.

We do this because if Lewis is a public official, he must

demonstrate actual malice; excessive publication would not

suffice.

II. CONSTITUTIONAL ISSUES

We begin our discussion with the seminal case of New

York Times co. v. Sullivan, 376 U.S. 254, 279-80 (1964), in

which the Supreme Court heid that a public official suing

for defamation must show that the defendant made the

l6a

defamatory statement with "actual malice," which is

defined as knowing it to be false or with reckless disregard

for its truth or falsity. One of the principles underlying

the case was the following: "Criticism of government is at

the very center of the constitutionally protected area of

free discussion. Criticism of those responsible for

government operations must be free, lest criticism of

government itself be penalized." Rosenblatt v. Baer, 383

U.S. 75, 85 (1966).

Oliver claims that New York Times applies because

Lewis is a public official and failed to prove actual malice

with the requisite clarity. Our review of this latter issue is

regulated by Currier v. Western Newspapers. Inc., 144 Ariz.

Adv. Rep. 3 (July 20, 1993). Currier requires the appellate

court in reviewing a summary judgment to determine

whether there are genuine issues of material fact which, if

resolved in favor of the plaintiff (Lewis), would permit a

jury to determine by clear and convincing evidence that

defendant (Oliver) knew the falsity of his statements or

entertained serious doubts as to their truth. /d., 144 Ariz.

Adv. Rep. at 5; see Dombey v. Phoenix Newspapers. Inc.,

150 Ariz. 476, 486-87, 724 P.2d 562, 572-73 (1986) (citing

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 257 (1986)).

17a

This standard of review is somewhat different than as

stated by the dissent. This court does not review the

evidence on actual malice to determine if it is clear and

convincing. We review the evidence to determine whether

it would permit a jury to find by clear and convincing

evidence that the defendant knew the falsity of his

statements or had serious doubts as to their truth. We

must do this in the context of an appeal from summary

judgment. See Orme School v. Reeves, 166 Ariz. 301, 802

P.2d 1000 (1990).

A. Public Official

The parties dispute whether Lewis is a public official.

In New York Times the Supreme Court did not express

"how far down into the lower ranks of government

employees the ‘public official’ designation would extend.

" 376 U.S. at 283, n.23. In Rosenblatt, the Court

provided more guidance. The Court first stated: "It is

clear, therefore, that 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." 383 U.S. at 85 (footnote

omitted). Seizing on this statement Lewis argues that, as

18a

an inspector on the bottom rung of the FAA ladder, he

cannot be held to be a public official.2 This argument

takes the quotation out of context and ignores what the

Supreme Court stated next:

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, both elements we identified

in New York Times are present and the New York

Times malice standards apply.

383 U.S. at 86 (footnotes omitted).’

> Appellant cites French v. Civil Aeronautics Bd., 378

F.2d 468 (10th Cir. 1967), for the proposition that "an

FAA inspector lacks the authority to vary his inspection,

let alone to choose who is inspected or the sanction to be

imposed. An FAA inspector, like Lewis, simply cannot be

considered a public official for the purposes of the law of

defamation." Appellant’s Reply Br. at 13-14.

* This is tempered by the caveat that "[{t]he 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." /d. at 86, n.13. Thus, a night

watchman accused of stealing state secrets is not

transformed into a public official by the publicity

surrounding the accusation. /d.

6

19a

We hold Lewis is a public official under the Rosenblatt

test. An FAA inspector’s job has a direct effect on air

transportation, something in which the general public has

an intense and justified interest. Whether an inspector’s

performance is affected by improper motives that might

lead him to perjure himself in a hearing on an air carrier’s

license, or be influenced by irrelevant matters, is

something of general import. Oliver’s accusations did not

thrust Lewis into the limelight but merely illustrate one

aspect of the public’s interest in the honesty and integrity

of the people who inspect the air industry.

An FAA inspector can also be analogized, albeit

imperfectly, to police officers, who have been held to be

public officials by the Arizona courts. See, e.g., Tumer v.

Devlin, 133 Ariz. Adv. Rep. 53, 848 P.2d 286 (Mar. 2,

1993); Godbehere v. Phoenix Newspapers, Inc., 162 Ariz.

335, 783 P.2d 781 (1989); Rosales v. City of Eloy, 122 Ariz.

134, 593 P.2d 688 (App. 1979); cf Angel v. Ward, 258

S.E.2d at 79t (IRS agent was a public official).

Furthermore, if a public school teacher, see Sewell v.

Brookbank, 119 Ariz. 422, 581 P.2d 267 (App. 1978), and

a student senator, see Klahr v. Winterble, 4 Ariz. App. 158,

418 P.2d 404 (1966), are public officials, then @ fortion an

20a

FAA inspector is also. See generally E.H. Schopler,

Annotation, Libel and Slander: Who is a Public Official or

Otherwise within the Federal Constitutional Rule Requiring

Public Officials to Show Actual Malice, 19 A.L.R.3d 1361

(1968).

In short, we hold that Lewis is a public official and

consequently must establish actual malice in order to

recover. We turn now to that subject.

- B. Actual Malice

New York Times defines actual malice as knowledge

that the statement is false or reckless disregard for its

truth or falsity. 376 U.S. at 279-80. The plaintiff must

adduce "sufficient evidence to permit the conclusion that

the defendant in fact entertained serious doubts as to the

truth of his publication." Dombey, 150 Ariz. at 487, 724

P.2d at 573 (quoting St. Amant v. Thompson, 390 U.S. 727,

731 (1968)); see Masson v. New Yorker Magazine. Inc., 960

F.2d 896, 900 (9th Cir. 1992); Selby v. Savard, 134 Ariz.

222, 225, 655 P.2d 342, 345 (1982). Lewis makes several

different arguments to support establishing evidence of

actual malice. We discuss them in order.

First, Lewis notes there is evidence that Oliver told

Bessette in the September 14, 1989 meeting that he was

2la

“out to get" Lewis in connection with his statements. We

believe this evidence is sufficient to create a jury question

as to whether Oliver’s accusations were knowingly false.

Currier v. Western Newspapers, Inc., 144 Ariz. Adv. Rep. at

Ȥ

Second, Lewis claims that Oliver continued to accuse

him of perjury and abuse of office even after Oliver

learned of an internal FAA investigation "exonerating"

Lewis of Oliver’s charges. Lewis relies on Selby v. Savard,

in which the court found that the defendant’s publication

of allegations of criminal activity by plaintiff, despite the

defendant’s knowledge of an investigation exonerating

plaintiff, was proof that the defendant acted with actual

malice. The supreme court held this evidence sufficient to

establish actual malice:

In this case, Savard continued publishing the

accusations against Selby even though he had been

advised by his own counsel and DPS Officer Carl

Needham that the allegations lacked merit and

even though he had settled a prior lawsuit over the

same allegations with the same party. In addition,

Savard admitted that as to at least one allegation

he had no evidence whatever.

We find that this evidence overwhelmingly shows

that Savard had actual knowledge of the probable

falsity of the allegations and published them with,

22a

at the very least, reckless disregard of whether-they

were true or false.

134 Ariz. at 225-26, 655 P.2d at 345-46. The evidence in

Selby v. Savard was “overwhelming| ]." The evidence here

is sufficient to create a jury question. The Bessette report

concludes that many of Oliver’s statements were false.

Lewis’s third argument is that Oliver had exhibited a

pattern of defaming and intimidating individuals who

criticized Westcor. This evidence of past vindictiveness

further supports our determination that a jury could find

that Oliver "entertained serious doubts as to the truth of

his publication."

Fourth, Lewis asserts that Oliver accused him of abuse

of office and perjury knowing that Westcor had a history

of serious safety problems. In the trial court, Lewis

argued:

The picture that emerges is of a corporate officer

who, when caught in safety violations of which he

is aware, decides to crush the government inspector

who uncovered the safety violations as an act of

malicious revenge. A question of fact exists as to

whether Oliver made his accusations with malice,

and Lewis is entitled to his day in court before a

jury to pursue justice and the exoneration of

Lewis’s reputation.

23a

Once again, we have determined that the evidence is

sufficient to create a jury question. Curner v. Western

Newspapers, Inc., 144 Ariz. Adv. Rep. at 5.

Finally, Lewis argues that Oliver was guilty of

"excessive publication," i.e., he communicated the allegedly

defamatory material to persons outside the scope of the

investigation. If true, this would suffice to remove the

conditional privilege if Lewis were not a public official.

But we have determined that Lewis is such an official and

must demonstrate actual malice. Excessive publication:

does not amount to evidence that the speaker had serious

doubts about the truth of his statements.

Based on our review of the record, we conclude there

is sufficient evidence from which a jury could conclude

that Oliver’s statements were made with actual malice.

Therefore, we remand the case to the trial court. The

remaining substantive counts (intentional infliction of

emotional distress, interference with business relationship)

grow out of the same conduct. See Drummond v. Stahl,

127 Ariz. at 125, 618 P.2d at 619. Consequently, they must

be considered upon remand. See also Restatement

(Second) of Torts; Chap. 25. Finally, Lewis’s count for

conspiracy is derivative, depending for its existence upon

24a

the substantive torts and therefore must be considered on

remand. See Tovrea Land & Cattle co. v. Linsenmeyer, 100

Ariz. 107, 131, 412 P.2d 47, 63 (1966).

III. THE TRIAL COURT’S DENIAL OF

APPELLANT’S RULE 56(f) MOTION

Lewis argues that the trial court erred in denying a

motion under Rule 56(f), Arizona Rules of Civil

Procedure, for more time to respond to the motion for

summary judgment. Rule 56(f) allows a party to request

additional time to respond to a motion for summary

judgment in order to undertake necessary additional

discovery. Wells Fargo Credit Corp. v. Smith, 166 Ariz. 489,

493, 803 P.2d 900, 904 (App. 1990). We will not disturb

the trial court’s Rule 56(f) ruling absent an abuse of

discretion. Bobo v. John W. Lattimore, Contractor, 12 Ariz.

App. 137, 141, 468 P.2d 404, 408 (1970).

To succeed under Rule 56(f), the moving party must

present an affidavit informing the court of: (1) the

particular evidence beyond the party’s control; (2) the

location of the evidence; (3) what the party believes the

evidence wiil reveal; (4) the methods to be used to obtain

it; and (5) an estimate of the amount of time the

additional discovery will require. /d. The record in this

25a

matter contains neither Lewis’s Rule 56(f) motion nor a

supporting affidavit and it is impossible for this court to

conclude that the trial court abused its discretion in

denying any such request. We will consider only those

matters in the record before us and presume that, as to

matters not in our record, the record before the trial court

supported its ruling. National Advertising co. v. Anzona

Dep't of Transp., 126 Ariz. 542, 544, 617 P.2d 50, 52 (App.

1980).

IV. STATUTE OF LIMITATIONS

Having determined that there was evidence sufficient

to create a jury question, we now address Oliver’s

arguments that the statute of limitations bars this action.

In his answering brief, Oliver argues that alleged

defamations which were made more than one year before

the complaint was filed are barred by the one-year Statute

of Limitations. A.R.S. § 12-541. Oliver states that any

action for defamation based on a publication before

January 17, 1989, is time-barred since the complaint was

filed on January 17, 1990. Glaze v. Marcus, 151 Ariz. 538,

729 P.2d 342 (App. 1986); Duhammel v. Star, 133 Ariz.

558, 653 P.2d 15 (App. 1982).

26a

We first note that Oliver did not file a cross-appeal as

to the statute of limitations issue. Therefore we must

determine whether the question is properly preserved as

a cross-issue. This court has held that in the absence of

a cross-appeal, an appellee may raise a cross-issue in its

answering brief only when it meets these criteria:

(1) The cross-issue must be an argument

in support of the judgment, not merely in

support of the ultimate disposition on

grounds that would attack the judgment;

(2) The cross-issue must have been

presented and considered by the trial court

in rendering the judgment, whether or not

the trial court ultimately rejected or simply

ignored the issue in a disposition; and

(3) | The cross-issue must not result in an

enlargement of appellee’s rights or a

lessening of appellant’s rights on appeal.

Issues that do not meet this test, assuming they are

otherwise appealable, must be the subject of a

timely notice of cross-appeal.

Larkin v. State, 126 Ariz. Adv. Rep. 20, 24 (App. May 13,

1992) (emphasis added in original) (quoting Bowman v.

Board of Regents, 162 Ariz. 551, 559, 785 P.2d 71, 79 (App.

1989)). Rule 13(b) of the Arizona Rules of Civil

Appellate Procedure has been amended effective

27a

December 1, 1992, to clarify the cross-appeal procedure.

However, the rule was amended after this appeal was filed

and therefore is not applicable to this case. Appellee

Oliver did not file a notice of cross-appeal. This issue was

first raised in his answering brief. The issue does not

meet the Bowman criteria set forth above for a cross-issue.

Therefore this court will not consider the issue.

The summary judgment in favor of _ the

appellee/defendant is reversed and this case is remanded

to the trial court for further proceedings not inconsistent

with this opinion.

NOYES, Judge, dissenting:

I respectfully dissent from the majority’s conclusion that

"plaintiff presented evidence sufficient to create a jury

question on whether the defendant acted with actual

malice." Supra p. 2.

In a defamation action by a public-figure plaintiff,

"actuai malice" has a special meaning and a heightened

standard of proof.

The burden of proving “actual malice” requires the

plaintiff to demonstrate with clear and convincing

evidence that the defendant realized that his

statement was false or that he subjectively

28a

entertained serious doubt as to the truth of his

statement.

Bose Corp. v. Consumers Union of United States, Inc., 466

U.S. 485, 511 n.30 (1984).

The "clear and convincing evidence" standard applies at

the summary judgment stage of the proceedings. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

If the evidence presented at the summary judgment stage

"is of insufficient caliber or quantity to allow a rational

finder of fact to find actual malice by clear and convincing

evidence," then the defendant should be granted summary

judgment because the evidence is insufficient as a matter

of law and there is no reason for a trial. /d. at 254.

Our duty as an appellate court is to "examine the entire

record and make an independent decision as to whether

there is clear and convincing evidence to support a finding

of [actual] malice." Starkins v. bateman, 150 Ariz. 537,

539, 724 P.2d 1206, 1208 (App. 1986); see also Bose, 466

U.S. at 514. Having independently examined the entire

record, I conclude that the evidence presented is

insufficient for a reasonable jury to find that "actual malice

had been shown with convincing clarity.". Anderson, 477

U.S. at 257.

29a

II.

Lewis made four arguments regarding evidence of

"actual malice," and the majority agreed with all of them.

Three of these arguments were based on Oliver’s bad

motive or ill will: 1) Oliver was "out to get" Lewis, 2)

Oliver exhibited a pattern of defaming and intimidating

individuals who criticized his company, and 3) Oliver’s

actions were malicious revenge because Lewis uncovered

safety problems at Oliver’s company. The majority

concludes that this evidence of bad motive or ill will, by

itself, is “sufficient to create a jury question as to whether

Oliver’s accusations were knowingly false." Supra p. 15-16.

The majority cites Currier v. Western Newspapers, Inc.,

144 Ariz. Adv. Rep. 3, 5 (July 20, 1993) in support of its

conclusion that evidence of bad motive is evidence of

"actual malice." See supra p. 15. Cumer is ambiguous

support for the proposition for which it is cited. Curner

cited Harte-Hanks Communications, Inc. v. Connaughton,

491 U.S. 657 667-68 (1989), for the general proposition

that "evidence concerning motive is relevant to actual

malice. See Currier, 144 Ariz. Adv. Rep. at 5. To say

* The actual Harte-Hanks language to which Curmer

refers is this: "Although courts must be careful not to

30a

that evidence can be relevant to actual malice is not to say

that it can be clear and convincing proof of actual malice.

For our purposes, the proposition for which Curmer cites

Harte-Hanks is not nearly as instructive as other language

directly from Harte-Hanks:

It also is worth emphasizing that the actual malice

standard is not satisfied merely through a showing

of ill will or "malice" in the ordinary sense of the

term.’

..7 The trial judge correctly instructed the jury that

"[a]ctual malice may not be inferred alone from

evidence of personal spite, ill will or intention to

injure on the part of the writer."

The phrase “actual malice" is unfortunately

confusing in that it has nothing to do with bad

motive or ill will.

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

I respectfully suggest that it would be clear error for a

trial court to instruct a jury that it could do what the

majority has done in this opinion, infer "actual malice"

solely from evidence of bad ‘motive or ill will.

place too much reliance on such factors [as motive and

professional standards of care], a plaintiff is entitled to

prove the defendant’s state of mind through circumstantial

evidence, and it cannot be said that evidence concerning

motive or care never bears any relation to the actual

malice inquiry.” 491 U.S. at 668 (citations omitted).

3la

"Instructions which permit a jury to impose liability on the

basis of the defendant’s hatred, spite, ill will, or desire to

injure are ’clearly impermissible.’ ’[I]ll will toward the

plaintiff, or bad motives, are not elements of the New York

Times standard.” Ross v. Duke, 116 Ariz. 298, 301, 569

P.2d 240, 243 (App. 1977) (quoting Old Dominion Branch

No. 496 Nat'l Ass'n of Letter Carers v. Austin, 418 U.S.

264, 281 (1974)) (citations omitted).

The other "actual malice" argument by Lewis is that

Oliver persisted in making false accusations after Lewis

had been "exonerated" by the FAA. Here again, the

evidence is far less than clear and convincing. The

purported "exoneration" is a report authored by Lewis’s

immediate supervisor, Bessette, after Bessette reviewed

the 1500-page report compiled by the Inspector General

in response to Oliver’s accusations about Lewis. The

Inspector General’s lengthy report makes no conclusions

about the truth or falsity of Oliver’s accusations. In my

opinion, neither the Bessette report nor the Inspector

General’s report, nor the two reports together, provide

sufficient evidence from which we as a reviewing court

could sustain a jury verdict for Lewis on the defamation

claim.

32a

Although Bessette’s report is favorable to Lewis, it is

one man’s opinion, and that man is Lewis’s supervisor.

The Bessette report is not an impartial adjudication of the

issues and it is not close to the clear and convincing proof

of falsity as existed in Selby v. Savard, 134 Ariz. 222, 655

P.2d 342 (1982), the case relied on by the majority. That

Oliver continued to press his case after learning of

Bessette’s report says little about whether Oliver knew his

accusations were false or whether he had reckless

disregard for truth or falsity.

II.

All of Lewis’s claims depend on proof of the

defamation claim. An essential element of the defamation

claim is clear and convincing evidence of "actual malice."

In my opinion, the evidence on "actual malice" is

insufficient to create a jury question. I would affirm the

trial court grant of summary judgment to Oliver.

33a

APPENDIX B

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

No. CV-94-0103-PR

Court of Appeals No. 1 CA-CV 91-0336

Maricopa County No. CV 90-01506

BRADFORD W. LEWIS

Plaintiff

¥.

ROBERT J. OLIVER and

WESTCOR AVIAITON, INC.

Defendants

January 31, 1991

M.E. Rake Jr., Thomas J. Shorall, Jr., John X. Evans,

RAKE, McGOVERN SHORALL & COHEN, P.C. for

Plaintiff.

Daryl M. Williams, Laura J. McMillan, MURPHY &

POSNER for Defendants.

LAWRENCE O. ANDERSON, Presiding Judge

34a

ORDER GRANTING DEFENDANTS MOTION FOR

SUMMARY JUDGMENT/ORDER DENYING AS

MOOT DEFENDANTS’ MOTION TO COMPEL

PSYCHOLOGICAL EXAMINATION.

This defamation action seeks to impose liability for

Defendant Oliver’s Statements made to the Inspector

General of the United States, certain elected congressional

officials and certain employees of Plaintiff's employer, the

Federal Aviation Administration (FAA) that Plaintiff

allegedly abused his office as an FAA Inspector in the

performance of his official duties and that Plaintiff

committed perjury. Defendants seek Sumimary Judgment

on various grounds, e.g., Statute of Limitations defense,

constitutional privilege to petition for redress of grievances

and free speech, public official standard requiring actual

malice, no evidence of outrageous conduct and conspiracy

to defame is not recognized in Arizona.

It is the view of this Court that Defendants’ Motion for

Summary Judgement is well taken on, at least, two

different grounds.

First, Arizona recognizes that if the Plaintiff is

considered a “public official," Plaintiff may recover for

defamation only if Plaintiff proves by clear and convincing

evidence that Defendant published false statements with

35a

"actual malice," i.e., with knowledge that the statement was

false or with reckless disregard of whether it was false or

not. Selby v. Savard, 134 Ariz. 222, 655 P.2d 342(1982).

There is no question to this Court that Plaintiff, a

government inspector for the FAA, was a "public official"

within the meaning of New York Times Co. v. Sullivan, 376

U.S. 554, 84 S.Ct. 710, 11 L.Ed.2d. 686(1964). See Selby

v. Savard, supra.; Rosales vs. City of Eloy, 122 Ariz. 134,

593 P.2d 688(1979). Therefore, it is incumbent upon the

Plaintiff to prove by clear and convincing evidence that

Defendant’s alleged defamatory statements were made

with actual malice. Plaintiff's Counterstatement of Facts

and attachment thereto have been reviewed by this Court.

While Defendant may have been perceived as “out to get"

Lewis and quoted "I will continue to use the system to the

fullest and will not back off until I get Lewis," these

statements do not alone create a question of fact that

Defendant knew his statements about Plaintiff were either

false or published with reckless disregard of whether they

were false or not. Plaintiff has failed in his burden of

establishing by clear and convincing evidence that

Defendant acted with actual malice.

36a

Secondly, this Court believes that Defendant’s

statements to the FAA regarding Lewis were absolutely

privileged under the petition and free speech clauses of

the First Amendment. Whether the statements in

question are privileged is a question of law to be

determined by this Court. See Steward v. Nationwide

Check Corporation, 279 N.C. 278, 182 S.W.2d 410(1971).

Furthermore, Arizona clearly recognizes an absolute

privilege against a defamation action if the statements are

made in the context of judicial proceedings, legislative

proceedings and administrative or executive functions of

the government. See Ross v. Duke, 116 Ariz. 298, 569 P.2d

240(1977). This Court finds persuasive the analogous facts

and legal reasoning set forth in Smith v. McDonald, 895

F.2d 147(4th Cir. 1990), Angel v. Ward, 43 N.C.App. 288,

258 S.E.2d 788(1979) and Holmes v. Eddy, 341 F.2d

477(4th Cir. 1965) to the facts before this Court.

This Court believes that the circumstances of this case

meet the definition of quasi-judicial and, therefore, call for

the application of the absolute privilege. Accordingly,

IT IS ORDERED granting Defendants’ Motion for

Summary Judgment.

37a

IT IS FURTHER ORDERED denying as moot

Defendants’ Motion to Compel Psychological Examination.

38a

APPENDIX C

SUPREME COURT

STATE OF ARIZONA

No. CV-94-0103-PR

Court of Appeals No. 1 CA-CV 91-0336

Maricopa County No. CV 90-01506

BRADFORD W. LEWIS

Plaintiff-A ppellant

we

ROBERT J. OLIVER and

WESTCOR AVIAITON, INC.

Defendants-A ppellees

May 18, 1994

M.E. Rake Jr., Thomas J. Shorall, Jr., Sharon E.

Ravenscroft, RAKE, MCGOVERN SHORALL &

COHEN, P.C. for Plaintiff-Appellant.

Daryl M. Williams, MURPHY & POSNER for

Defendants-Appellees.

Before: STANLEY G. FELDMAN, Chief Justice

JAMES MOELLER, Vice Chief Justice

ROBERT J. CORCORAN, Justice

FREDERICK J. MARTONE, Justice

THOMAS A. ZLAKET, Justice

39a

GREETINGS:

The following action was taken by the Supreme Court of

the State of Arizona on May 17, 1994, in regard to the

above-referenced cause:

ORDERED: Petition for Review by

Defendants/Appellees Robert J. Oliver and Westcor

Aviation, Inc. = DENIED.

Justice Martone voted to grant the Petition for Review on

issue B.

Record returned to Court of Appeals, Division One,

Phoenix, this 18th day of May, 1994.

40a

APPENDIX D

State Court Decisions In

Conflict With Arizona’s Decision

Camp v. Yeager, 601 So.2d 924 (Ala. 1992), cert. denied,

113 S.Ct. 967 (1993); Green v. Northern Publishing Co.,

Inc., 655 P.2d 736 (Alaska 1982), cert. denied, 463 U.S.

1208 (1983); Little Rock Newspapers, Inc. v. Dodnill, 281

Ark. 25, 660 S.W.2d 933 (1983); McCoy v. The Hearst

Corp., 227 Cal. App.3d 1657, 278 Cal. Rpr. 96 (1991);

People v. Ryan, 806 P.2d 935 (Colo.), cert. denied, 112 S.Ct.

177 (1991); Brown v. K.N.D. Corp., 205 Conn. 8, 529 A.2d

1292 (1987); Riley v. Moyed, 1986 WL 8169 (Del. Super

1986), affd., 529 A.2d 248 (1987); Braden v. News World

Communications, Inc., 1991 WL 16497 (D.C. Super. 1991);

Cronley v. Pensacola News-Journal, Inc., 561 §.2d 402 (Fla.

App. 1990); Ellerbee v. Mills, 262 Ga. 516, 422 S.E.2d 539

(1992); Mehau v. Gannett Pac. Corp., 66 Haw. 133, 658

P.2d 312 (1983); Kumaran v. Brotman, 247 Ill. App. 3d

216, 617 N.E.2d 191 (1993); Bandido’s, Inc. v. Journal

Gazette Co., Inc., 575 N.E.2d 324 (Ind. App. 1991);

Blessum v. Howard County Bd. of Supervisors, 295 N.W.2d

836 (Iowa 1980); Redmond v. Sun Publishing Co., Inc., 239

4la

Kan. 30, 716 P.2d 168 (1986); Ball v. E.W. Scripps Co., 801

S.W.2d 684 (Ky. 1990), cert. denied, 499 U.S. 976 (1991);

Sasone v. Elder, 626 $.2d 345 (La. 1993); Tucci v. Guy

Gannett Publishing Co., 464 A.2d 161 (Me. 1983); Capital-

Gazette Newspapers, Inc. v. Stack, 293 Md. 528, 445 A.2d

1038, cert. denied, 459 U.S. 989 (1982); Tosti v. Ayik, 394

Mass. 482, 476 N.E.2d 928 (1985), appeal after remand, 400.

Mass. 224, 508 N.E.2d 1368, cert. denied, 484 U.S. 964

(1987); Gaynes v. Allen, 128 Mich. App. 42, 339 N.W.2d

678 (1983); Patten v. Minneapolis Star Tribune, 1992 WL

509710 (Minn. Dist. Ct. 1992); Fergusson v. Watkins, 448-

S.2d 271 (Miss. 1984); Nazernt v. Missoun Valley College,

860 S.W.2d 303 (Missouri 1993); Gallagher v. Johnson, 188

Mont. 117, 611 P.2d 613 (1980); Deaver v. Hinel, 223 Neb.

529, 391 N.W.2d 129 (1986); Nevada Indep. Broadcasting

Corp. v. Allen, 99 Nev. 404, 664 P.2d 337 (1983); Costello

v. Ocean County Observer, 1993 WL 560138 (N.J. Super.

1993); Saenz v. Mors, 106 N.M. 530, 746 P.2d 159 (N.M.

App. 1987); Kaplansky v. Rockaway Press, Inc., 610

N.Y.S.2d 581 (App. Div. 1994); Varner v. Bryan, 113 N.C.

App. 697, 440 S.E.2d 295 (1994); Snoortland v. Crawford,

306 N.W.2d 614 (N.D. 1981); Condit v. Claremont County

Review, 1994 WL 363638 (Ohio App. 1994); Tanner v.

42a

Western Publishing Co., 682 P.2d 239, (Okla. App. 1984);

Koch v. Laborico, 66 Or. App. 78, 674 P.2d 602 (1983);

Papa v. Manna, 1993 WL 643376 (Pa. Commw. 1993);

Lyons v. Rhode Island Pub. Employees Counsel 94, 559

A.2d 130 (R.I.) cert. denied, 493 U.S. 892 (1989); McClain

v. Amold, 275 S.C. 282, 270 S.E.2d 124 (1980); Ferguson v,

Union City Daily Messenger, Inc., 845 S.W.2d 162 (Tenn.

1992); Johnson v. Southwestern Newspapers Corp., 855

S.W.2d 182 (Tex. App. 1993); West v. Thomson

Newspapers, 872 P.2d 999 (Utah 1994); Colombo v. Times-

Argus Ass’n., Inc., 380 A.2d 80 (Vt. 1977); Newspaper

Publishing Corp. v. Burke, 216 Va. 800, 224 S.E.2d 132

(1976); Hoppe v. Hearst Corp., 53 Wash. App. 668, 770

P.2d 203 (1989); Harris v. Adkins, 189 W. Va. 465, 432

S.E.2d 549 (1993); Wiegel v. The Capital Times Co., 145

Wis. 2d 71, 426 N.W.2d 43 (1988) (Wis. App. 1988);

McMurry v. Howard Publications, Inc., 612 P.2d 14 (Wyo.

1980).

Federal Circuit Court Decisions

In Conflict With Arizona’s Decision

Brasslett v. Cota, 761 F.2d 827 (lst Cir. 1985);

Contemporary Mission, Inc. v. New York Times Co., 842

F.2d 612 (2nd Cir.), cert. denied, 488 U.S. 856 (1988);

43a

Dunn v. Gannett New York Newspapers, Inc., 833 F.2d 446

(3rd Cir. 1987); Church of Scientology Int'l v. Daniels, 992

F.2d 1329 (4th Cir. 1993); McKinley v. Baden, 777 F.2d

1017 (Sth Cir. 1985); Brassler v. Fortune Magazine, 971

F.2d 1226 (6th Cir. 1992); Jean v. Dugan, 20 F.3d 255 (7th

Cir. 1994); Price v. Viking Penguin, Inc., 881 F.2d 1426 (8th

Cir. 1989), cert. denied, 493 U.S. 1036 ( 1990); Newton v.

_National Broadcasting Co., Inc., 930 F.2d 662 (9th Cir.

1990), cert. denied, 112 S.Ct. 192, 116 L.Ed. 2d 152 (1992);

Garcia v. Board of Education of Socorro Consol. School

Dist., 777 F.2d 1403 (10th Cir. 1985), cert. denied, 479 U.S.

814 (1986); Morgan v. Tice, 862 F.2d 1495 (11th Cir.), cert.

denied, 493 U.S. 813 (1989); Clhyburn v. News World

Communications, Inc., 903 F.2d 29 (D.C. Cir. 1990).