# Petition for Writ of Certiorari — Oliver v. Lewis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 929

## Text

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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

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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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0222%3A1. Public record. Not legal advice.