Opinion
No. 77-432
Decided March 29, 1979. Rehearing denied April 26, 1979. Certiorari granted August 20, 1979. Publication effected October 26, 1981, pursuant to C.A.R. 35(f).
Appeal from the District Court of Weld County, Honorable Hugh H. Arnold, Judge.
Roath Brega, P.C., Charles F. Brega, J. Stephen McGuire, for plaintiffs-appellees Kuhn and Morrell.
Robert E. Ray, for plaintiff-appellee Wright.
Southard Ashlock, William J. Southard, Lawrence Ashlock, Wahl Gabel, Harold B. Wahl, for defendants-appellants.
Division II.
This is a libel action arising out of an article published in January 1976 in the Greeley Tribune concerning the Greeley recreation department's ski program. The full text of the article is attached as an appendix to this opinion.
The parties conceded that all three plaintiffs were public officials of the City of Greeley at the time of the publication of the article and at the time of trial. Morrell was the city manager, Kuhn the director of the parks and recreation department, and Wright an employee of the recreation department and director of its ski program. The defendant Tribune-Republican Publishing Company was the owner and publisher of the Greeley Tribune; defendant John Seelmeyer was the reporter who wrote the article.
Defendants denied that any of the statements in the article were defamatory as to any of the plaintiffs. Also, they raised as affirmative defenses, among others, substantial truth and the First Amendment privilege attaching to published statements relating to a public official. Before trial the court denied defendants' motions for summary judgment. At trial it denied the motion for directed verdict at the close of plaintiffs' case and submitted the case to the jury. Verdicts were returned in favor of each plaintiff and against each defendant, both for actual and punitive damages. After trial, the court denied defendants' motions for judgment notwithstanding the verdict and for new trial. Defendants appeal, and we reverse.
We have reviewed the documents offered at the time of the hearing on the motions for summary judgment, and the evidence presented at the trial. From this it is apparent that the article was substantially accurate, and, aside from some estimated dollar figures which proved to be somewhat high but still sizeable, there were no factual errors of any consequence. See Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1973). There was no dispute that, as asserted in the article, the free passes from the two ski areas were accepted by Greeley recreation officials. And Greeley does have a written policy against accepting gratuities. The other matters referred to were factually correct. There was no showing of knowledge of falsity or serious doubts as to truth. At most, plaintiffs' case was that the reporter did not ask enough questions or go far enough in his investigation. That does not, however, constitute the "reckless disregard" which the First Amendment requires. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
We conclude that, under the standards established by New York Times, supra, and its progeny, the plaintiffs failed to prove by clear and convincing evidence (1) that the statements in the article were false, (2) that the statements were defamatory, especially as to city manager Morrell, or (3) that even if the statements were false and defamatory (which was not established), the statements about any plaintiff were not published with actual knowledge that they were false or with reckless disregard as to whether they were false or not. Plaintiffs having failed to meet their constitutional burden, summary judgment should have been entered in favor of defendants. Failing this, the court should have directed a verdict.
Having decided the case on the grounds set forth above, we find it unnecessary to address the other contentions for reversal.
Judgment reversed and cause remanded with directions to dismiss the action.
JUDGE ENOCH and JUDGE BERMAN concur.
APPENDIX
CITY'S RECREATION SKI PROGRAM DRAWS CRITICISM FROM PERCHLIK
By JOHN SEELMEYER
Tribune Staff Writer
About $7,600 worth of skiing business was directed to two Colorado resorts this winter after Greeley recreation officials accepted free passes valued at more than $700.
Even though the $7,600 figure is above the level ordinarily requiring competitive bidding, recreation officials didn't call for bids on the "Learn to Ski" program.
The Tribune learned the ski programs sponsored by the city were directed to Hidden Valley and Lake Eldora after salesmen for the two resorts left season passes with city recreation officials.
The Hidden Valley pass is worth $85 while the Lake Eldora pass is worth $150.
In addition, the two resorts arranged to give recreation officials a one-day tow ticket for every 20 persons who take the city's ski bus on weekend trips. On a typical weekend, that means officials receive two Lake Eldora passes valued at $7 each and five Hidden Valley passes worth $5.75 each.
Over the 10-week program, that amounts to one-day passes worth $485.
A rival ski operator, Richard Perchlik of the Sharktooth area west of Greeley, questioned the recreation department's procedures at Tuesday's city council meeting.
Perchlik charged his area wasn't included in a city brochure listing ski programs because Kevin Wright, recreation official who runs the ski program, mistakenly believed Sharktooth wasn't in operation.
Sharktooth was listed on an insert to the brochure after Perchlik pointed out the error in November.
Later, Perchlik charged, the recreation department ran newspaper and radio ads promoting programs at Lake Eldora and Hidden Valley, but again ignoring Sharktooth.
"I don't expect the city to run ads for my business or any other business," Perchlik said in an interview Thursday. The ads cost $154, according to Recreation Director Leon Kuhn.
Perchlik, former Greeley mayor, also said he believes the city's ski business should have been opened for competitive bidding.
City policy calls for contracts involving more than $2,000 to be advertised for bid.
Perchlik said bids on the "Learn to Ski" program probably could have resulted in lower prices for the 320 persons who are expected to participate this year.
Recreation officials said their selection of the two mountain resorts represented an attempt to provide the highest quality program.
"We just provide the highest quality activity at the best price we get it," said Wright who is in charge of the program.
He said selection of the areas was based on their proximity to Greeley and the quality of program offered.
Wright said the recreation department is approached by several ski areas every summer and salesmen usually leave season passes.
The arrangement for one-day passes allows supervisors traveling on the ski buses to ski free, Wright said.
At Tuesday's council meeting, City Manager Pete Morrell said selection of Lake Eldora and Hidden Valley was "a judgment call by Leon (Kuhn) on the program we should participate in."
Council members scolded Morrell and Kuhn for their handling of the ski program and told them to include Sharktooth in future advertising.
On the issue of receiving free passes, Morrell said later the city doesn't have a written policy on gifts.
He said several businesses — including movie theaters — offer passes and other gifts to city officials in most cities. Morrell said each official makes his own decision whether to keep the gift.
He added, however, "We're not taking any graft."