Appeals Response
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ARIZONA COURT OF APPEALS DIVISION ONE
RICK ROSS' RESPONSE BRIEF
Daniel C. Barr (#010149) Ann Hobart (#019129) Brown & Bain, P.A. 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 (602) 351-8000
Attorneys for Defendant-Appellee Rick Ross
Issues Presented 1. Did the trial court properly hold that plaintiffs were limited purpose public figures in the context the controversies surrounding them when Ross made the statements plaintiffs have challenged? 2. Did the trial court properly hold that plaintiffs did not adduce clear and convincing evidence that Ross made the challenged statements with actual malice? Argument Although their opening brief is well in excess of this Court's presumptive briefing limits, plaintiffs have again failed to comprehend, much less to meet, their burden as limited purpose public figures of coming forward with clear and convincing evidence that Ross made his statements about them knowing they were false or with "conscious disregard" of their falsity. Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 487, 724 P.2d 562, 573 (1986). Accordingly, the trial court's dismissal should be affirmed and Ross should be awarded his reasonable attorneys' fees incurred in this appeal.
To ensure that debate on issues of public concern is "uninhibited, robust and wide open," as the First Amendment requires, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), the burden of establishing a defamation defendant's actual malice applies equally to public officials and public figures who, though private citizens, "'seek to lead' in the determination of policy." Dombey, 150 Ariz. at 480, 724 P.2d at 566 (quoting Curtis Publishing Co. v. Butts, 388 U.S. 130, 148 (1967)). A private citizen becomes a public figure when he "thrust[s] himself or his views into public controversy to influence others." Id. at 483, 724 P.2d at 569 (quoting Hutchison v. Proxmire, 443 U.S. 111, 135 (1979)). At the time Ross made his comments about the COIC, plaintiffs were embroiled in a public controversy with constitutional implications. That is, whether a school with "close ties" to a religious sect could obtain state charter funds consistent with Arizona law. Shelby School v. Arizona State Bd. of Educ., 192 Ariz. 156, 169, 962 P.2d 230, 243 (Ct. App. 1998). By applying for state charter funds, plaintiffs "thrust" themselves into this. controversy to influence its outcome. As a consequence, plaintiffs should have expected the public scrutiny and comment their self-promoting activities invited. Dombey, 150 Ariz. at 484, 724 P.2d at 570.
Plaintiffs deny that the Shelby School charter application was a public controversy sufficient to support a finding that plaintiffs were public figures. [App. Br. at 19-23] They base this denial on two arguments recycled from their response to Ross' motion for summary judgment ("Response"). First, the application for charter status was just a request for public funds, which, according to plaintiffs' interpretation of Hutchison v. Proxmire, 443 U.S. 111 (1979), "does not transform a private individual into a 'public figure.'" [App. Br. at 19] Second, plaintiffs claim it is improper to link the Shelby School's charter application with the controversy over whether the COIC was a cult that was litigated in the highly publicized Miller lawsuit. Plaintiffs base this argument on language from this Court's opinion in Shelby School, 192 Ariz. at 163, 962 P.2d at 237, stating that the Board of Education should not have considered "religion and public hostility" when deciding to deny the Shelby School's application for charter funding. Plaintiffs' reliance on Hutchison, which concerned the defamation claim of an obscure research scientist who sued Senator William Proxmire for awarding the federal agency that sponsored his research a "Golden Fleece" award, is clearly misplaced. Hutchison held that the plaintiff was not a public figure based on two considerations: (1) whether Hutchison received public funding for his research on animal behavior was not a matter of public concern and (2) Hutchison had no public profile apart from the media coverage surrounding the award of the Golden Fleece and several interviews publishing his reaction to it. Id. at 134-35. Thus, properly viewed, Hutchison held that, where the allocation of funds is not a matter of public concern, simply applying for such funds does not make a private figure a public figure. Id. at 135-36. The rule of Hutchison has no application here, because COIC's application for state funds to operate a school open to all Arizona children was clearly a matter of public concern, coming as it did amidst the legal controversy over whether the COIC was a cult that plaintiffs had been instrumental in publicizing. [See CR-145 at 9-12] Moreover, both the charter application and the Miller lawsuit preceded the August 30, 1995 KNXV-TV broadcast on which Ross made his first public statements about the Church. It therefore cannot be said, as it was of the award of the Golden Fleece in Hutchison, that the KNXV-TV report created the controversy that made plaintiffs public figures. Hutchison, 443 U.S. at 135. Indeed, Judge Flournoy had ruled that plaintiffs were public figures for the purposes of the Miller lawsuit more than two months before the KNXV-TV report aired. [See CR-145 at 9] Plaintiffs' argument that their "religious beliefs and practices were, or should have been, legally irrelevant to the charter determination" similarly fails to establish that the Shelby School application was not a matter of public controversy sufficient to make them public figures. [App. Br. at 22 (emphasis in original)] As a preliminary matter, this argument mischaracterizes the trial court's ruling, which said nothing about the religious beliefs and practices of COIC members. The trial court wrote instead of the Board of Education's duty to ascertain that the Shelby School was operated in a non-sectarian manner. [CR-193 at 23] This duty made information concerning the COIC's "close ties" with the Shelby School a matter of public concern, Shelby School, 192 Ariz. at 169, 962 P.2d at 243, which plaintiffs should have anticipated would train "public scrutiny [on] their collective community." [CR-193 at 23] Plaintiffs argue, as they did below, that they never actively thrust themselves into the controversy over the Shelby School charter because (1) the COIC and the Shelby School were legally separate entities; and (2) neither of the named plaintiffs was responsible for the actual charter application. Plaintiffs also claim, as they did below, that they never sought positive publicity for the COIC but rather merely tried to defend themselves against libelous accusations through recourse to the media and the courts. None of these arguments affect the trial court's conclusion that plaintiffs were public figures for the purpose of this lawsuit. As noted, this Court previously has held that information concerning the COIC's "close ties" with the Shelby School was sufficient grounds for the State School Board to investigate whether the Shelby School was operated on a non-sectarian basis, as the charter statute requires. Shelby School, 192 Ariz. at 169, 962 P.2d at 243. These "close ties" made the Shelby School charter application for charter status a matter of public concern, as this Court also has recognized, id. at 163, 962 P.2d at 237 (describing the charter application as "an area of significant public interest with public funds at stake"), and belie plaintiffs' contention that they did not "thrust" themselves into the controversy over this application so as to influence its outcome. [App. Br. at 26] COIC's affiliation with Shelby School is too thoroughly documented for plaintiffs to deny that their co-operation with the lawsuit and media coverage concerning the denial of the charter application, and indeed the application itself, were actions that they undertook to sway opinion in favor of the charter. [CR-145 at 4, 11-12, 14-17] Nor can plaintiffs deny that, in the context of the Shelby School charter application, the Miller lawsuit and their frequent media appearances in connection with it properly contributed to the trial court's finding that plaintiffs were public figures for the purposes of the present lawsuit. As they did in their response, plaintiffs rely on Time, Inc. v. Firestone, 424 U.S. 448, 454 n.3 (1976), for the proposition that resorting to judicial action does not make a private figure a public figure, even where the plaintiff held press conferences to make statements about the case. [App Br. at 28] But, unlike the present case, Firestone, which concerned allegedly defamatory remarks made about an heiress embroiled in bitter, highly publicized divorce proceedings, did not involve a public controversy, "even though the marital difficulties of extremely wealthy individuals may be of interest to some portion of the reading public." Id. at 454. Nor did either of the other cases that plaintiffs have cited on appeal. [App. Br. at 28-29 (citing Levine v. CMP Publications, 738 F.2d 660, 672 (5th Cir. 1984) (civil trade secret action in which defamation plaintiff was defendant was not a public controversy); LeDoux v. Northwest Publ'g, Inc., 521 N.W.2d 59, 66 (Minn. App. 1994) (employment arbitrations and civil suits undertaken by a defamation plaintiff to regain position as a street maintenance supervisor did not create a public controversy)).] Moreover, the cases that plaintiffs cite on appeal to establish that mere recourse to the media is not enough to make a private figure a public figure are easily distinguishable. [App. Br. at 29-30] As in Hutchison, the plaintiffs in these cases sought recourse in the press to clear their names only after the defamation complained of had occurred. See Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1561 (4th Cir. 1994) (reply in media followed insinuations that plaintiffs engaged in child abuse); Khawar v. Globe Int'l, Inc., 54 Cal. Rptr. 2d 92, 101 (Ct. App. 1996) (interview followed misidentification of plaintiff and accusation he conspired to assassinate Robert F. Kennedy), aff'd, 965 P.2d 696 (1998), cert. denied, 119 S. Ct. 1760 (1999). Here, by contrast, plaintiffs initiated or cooperated with considerable media attention well before the KNXV-TV broadcast and thus before Ross made any of the comments of which plaintiffs complain. [CR-145 at 9-13, CR-149 at 12-13] The broadcast, therefore, did not drag plaintiffs out of obscurity and drag them into the limelight against their will. On the contrary, plaintiffs' cooperation with the KNXV-TV report was one of a number of purposeful attempts to use the media to influence the outcome of the charter application. [CR-145 at 4] Plaintiffs were public figures before Ross made his comments about them. As public figures, plaintiffs have the burden of proving that Ross made his comments about the COIC with actual malice. Dombey, 150 Ariz. at 485, 724 P.2d at 571. To survive summary judgment, plaintiffs were required to demonstrate by clear and convincing evidence that Ross knew his comments were false, or that he made them with "conscious disregard" of their falsity. Id. at 487, 724 P.2d at 573 (citing St. Amant v. Thompson, 390 U.S. 727, 731-32 (1968) ("There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.") (emphasis supplied)). Actual malice is subjective. It is "'is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.'" Scottsdale Publ'g, Inc. v. Superior Court, 159 Ariz. 72, 86, 764 P.2d 1131, 1145 (Ct. App. 1988) (citations omitted). Although subjective, however, actual malice cannot be established through evidence of "bad motives" or "personal ill-will." Heuisler v. Phoenix Newspapers, Inc., 168 Ariz. 278, 282, 812 P.2d 1096, 1100 (Ct. App. 1991) (rejecting the plaintiff's "attempt[] to rest his claim of actual malice primarily upon evidence that [the defendant] was 'out to get him'"). As they did below, plaintiffs' have wholly misconceived what is required to establish actual malice. They claim once again that Ross' affidavit was insufficient to establish that he believed what he said when he made his comments about the COIC. [App. Br. at 45] Ross, however, did not have the burden of proving his belief. Plaintiffs had the burden of proving Ross' subjective doubts. Ross' affidavit would only have been inadequate to support his motion if, as in Currier v. Western Newspapers, Inc., 175 Ariz. 290, 855 P.2d 1351 (1993), plaintiffs had come forward with circumstantial evidence here that Ross had reason to doubt what he said, and Ross had attempted to controvert this evidence through his affidavit. But there is no such evidence, as plaintiff Trina Kamp has conceded: Mr. Barnowski: Do you believe that Rick [Ross] believed that his statements about the church were probably false?. . . . Trina Kamp: I assume that Mr. Ross believes what he said. [CR-149 at 13-15] Lacking any evidence, plaintiffs speculate that Ross entertained doubts about his statements regarding them. [App. Br. at 45-46] Such speculation is inadequate to defeat summary judgment. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (holding plaintiff could not defeat defendant's properly supported summary judgment motion by asserting a jury might disbelieve defendant's denial of actual malice). Without any colorable evidence of actual malice, plaintiffs maintain that the trial court applied the wrong standard and propose to replace the true subjective measure of actual malice with an objective one, claiming the court should have considered "the evidence suggesting the extent to which Ross knew or should have known that he was speaking without basis." [App. Br. at 46] It is only by this confected "standard" that plaintiffs can describe Ross' decision not to interview COIC members in Tonto Village or his review of a small number of documents provided by KNXV-TV as "evidence" of anything. [Id. at 45] The pages of outtakes from KNXV-TV's interview with Ross that plaintiffs have re-assembled for this appeal demonstrate nothing but Ross' firm belief that the COIC is a destructive cult. [Id. at 46-51; CR-162 at 25-28] Plaintiffs' contention that Steven Rensch's telephone call to Ross following the KNXV-TV broadcast put Ross on "notice" that his statements about the COIC were false is also without merit. [App. Br. at 51; CR-162 at 4] Plaintiffs cannot point to a moment in that conversation when Ross revealed the slightest doubt about his conclusions concerning the COIC. On the contrary, Rensch's harassment appears only to have confirmed Ross' opinion that the COIC leadership was manipulative and psychologically abusive. [CR-151, Ex. 8 passim] A.R.S. § 12-349(A)(1) requires the Court to assess reasonable attorneys' fees and expenses against any party that "[b]rings or defends a claim without substantial justification." A claim is "'without substantial justification'" if it is "groundless." A.R.S. § 12-349(F). Here, plaintiffs have pursued this appeal without indicating a single fact or legal argument that the trial court failed to consider and properly dismiss and thereby have forced Ross to incur unnecessary legal expense. This is not a case where the evidence is a close call - plaintiffs have provided no evidence of actual malice. A.R.S. § 12-349(A)(1) thus requires an award of attorneys' fees and expenses. Relief Requested Defendant-appellee Rick Ross respectfully requests that this Court affirm the trial court's judgment and award him his reasonable attorneys' fees and costs incurred in this appeal. Dated: July 8, 2000. Brown & Bain, P.A. By Daniel C. Barr Ann Hobart 2901 North Central Avenue Post Office Box 400 Phoenix, Arizona 85001-0400 Attorneys for Defendant-Appellee Rick Ross Certificate of Compliance
Pursuant to ARCAP 14(b), the undersigned certifies that this brief is double spaced, uses 14 point proportionally spaced typeface and contains 4,590 words.
By Ann Hobart Attorney for Defendant-Appellee Rick Ross Certificate of Service I hereby certify that two copies of the foregoing Response Brief were deposited in the United States mail, first class postage pre-paid and addressed to the following: Chuck Walker Michael J. Harper Walker & Harper 17100 E. Shea Boulevard, Suite 250 Fountain Hills, Arizona 85268 Attorneys for Plaintiffs/Appellants
I hereby certify that one copy of the foregoing Response Brief was deposited in the United States mail, first class postage pre-paid and addressed to the following: David J. Bodney Sandra Sanders Steptoe & Johnson, L.L.P. Two Renaissance Square 40 North Central Avenue, 24th Floor Phoenix, Arizona 85004 Attorneys for Defendants/Appellees Scripps Howard Broadcasting and Tony Kovaleski
Glen Smith Baker & Hostetler, LLP 600 Wilshire Boulevard Los Angeles, California 90017-3212 Attorneys for Defendants/Appellees Scripps Howard Broadcasting and Tony Kovaleski
By Ann Hobart Attorney for Defendant-Appellee Rick Ross |
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