A Court Appointed Conservator Is a “Public Official” and Must Prove Actual Malice
A private conservator and professional fiduciary appointed by the court to serve as a co-trustee responsible for handling the financial affairs of an elderly woman is a "public official" for purposes of defamation law who has to meet the "actual malice" standard to survive an anti-SLAPP motion, the California Third Appellate District Court of Appeal held late last year.
In Young v. CBS Broadcasting, Inc., 212 Cal. App. 4th 551 (2012), the appellate court found that the professional conservator plaintiff, Carolyn Young, acted as a public official for purposes of defamation law when she acted temporarily as a conservator and later, as a co-trustee for an 86-year-old woman, Mary Jane Mann. As a public official, Ms. Young was required to show a probability that she could establish with "clear and convincing" evidence at trial that the CBS Defendants broadcast a news report discussing Ms. Mann's complaints about the conservatorship with "actual malice," knowledge of falsity of reckless disregard as to the truth of the statements in the report. Ms. Young's failure to make that showing justified dismissal of her lawsuit, the court stated.
The published decision joined by all three appellate justices should help media defendants facing lawsuits arising from news reports on government contractors and appointees when the government has outsourced important public functions to outside professionals. The Third District concluded that "government employment is not a dispositive factor where the plaintiff in all other aspects serves as a public official." The Court stated that the exercise of "significant sovereign power" in assuming control of a citizen's affairs "through the power of the state" was sufficient to establish "public official" status. The appellate court followed a series of cases around the country holding that individuals such as charter school superintendents and court-appointed psychologists who assume positions likely to attract or warrant scrutiny from the public are "public officials" subject to the stringent "actual malice" standard, regardless of whether they are official government employees.[1]
Conservator Ms. Young's Lawsuit Stems From KOVR-TV Channel 13 News Reports on Conservatorships
As part of her conservatorship and fiduciary business, Ms. Young's counsel made an ex parte application for a temporary conservatorship of Ms. Mann in November 2006 with the support of Sacramento County Adult Protective Services ("APS"). The Court granted the temporary conservatorship, which provided Ms. Young with control over certain of Ms. Mann's financial affairs. In February 2007, after loud complaints from Ms. Mann, the parties agreed at a mediation to a court-approved co-trusteeship arrangement with Ms. Young and Ms. Mann as co-trustees of Ms. Mann's affairs. Ms. Mann eventually contested the co-trusteeship and had it dissolved by court order in November 2008, with Ms. Young removed from Ms. Mann's accounts.
In February 2008, Sacramento CBS station KOVR-TV Channel 13 broadcast two news reports on conservatorships as part of its "Call Kurtis" investigative reporting series. The first broadcast focused on Ms. Mann's claims that she was competent and should not have been subject to the temporary conservatorship and court-approved co-trusteeship. The second broadcast focused on issues with conservatorships generally and did not mention Ms. Young by name.
Ms. Young complained that 26 statements in the two-and-a-half minute first broadcast defamed her. These included statements by Ms. Mann that Ms. Young said accused her of stealing, and statements that questioned the claims by Ms. Young and APS that the conservatorship was justified by memory impairment. The KOVR-TV Channel 13 report acknowledged that the APS report recommending a temporary conservatorship had relied on medical records, but quoted one of the doctors in the underlying records stating that while Mann does have some memory loss, she shows no signs of a "significant neurodegenerative disorder." KOVR-TV Channel 13 also reported that through the conservatorship and co-trusteeship, Ms. Young had taken control of Ms. Mann's bank accounts, investments, and her trusts, had her mail forwarded to Ms. Young's office and that Ms. Mann had lost her driver's license. And KOVR-TV Channel 13 reported Ms. Mann's claim that Ms. Young had taken $60,000 out of a trust without adequate accounting.
The Yolo County Superior Court found California's anti-SLAPP statute applied to Ms. Young's lawsuit, a conclusion Ms. Young did not challenge on appeal. The trial court granted the anti-SLAPP motion as to 9 of the 26 statements, finding them covered by the fair and true report privilege for official proceedings and records (California Civil Code Section 47(d)) or protected under the First Amendment as rhetorical hyperbole/opinion. The Court denied the anti-SLAPP motion as to 17 other statements, and concluded that Ms. Young was not a public official or limited purpose public figure subject to the actual malice standard. The CBS Defendants appealed.
The Third District Concludes That the Court-Appointed Conservator Is a Public Official Under Defamation Law
In assessing whether Ms. Young's work as a court-appointed conservator qualified her as a public official under defamation law, the appellate court looked to a 1991 California decision, Kahn v. Bower. In that case, the court determined that a publicly employed social worker was a public official subject to the actual malice standard. The court based this conclusion on the fact that the social worker "possessed considerable power over the lives affected by her work as a child welfare worker. This power made her to the families of the children she served 'the very epitome of government.'"[2]
The appellate court found that "Ms. Young's work and position were analogous to the social worker found to be a public official in Kahn." Just as the social worker's "assessments and decisions directly and often immediately determined whether the educational, social, medical and economic needs of developmentally disabled children in her care would adequately be met,"[3] Ms. Young's assessments and decisions directly determined Ms. Mann's financial life and even where Ms. Mann could maintain a permanent residence. As the Third District noted, "Young exercised sovereign power in assuming control of Mann's affairs. Pursuant to APS' request and court authority, she became the face of government assigned to take control of Mann's personal and financial affairs. This is an extraordinary power for the court to bestow upon a person." The public official status was justified, the Third District held, because "it is only through the power of the state that a person such as a conservator can co-opt another person's independent discretion and their liberty, and in addition, force the affected person to pay for it."[4]
The Court found additional support for Ms. Young's status as a public official in her status as a professional fiduciary licensed by the California Department of Consumer Affairs and subject to comprehensive regulatory and ethical standards. While not all licensed professionals are public officials, Young acted in a capacity beyond the normal licensee, the Court stated. "By her court appointment and under oath, Young became an agent of the state with power to interfere in the personal interests of a private citizen to whom she was not related and without that citizen's consent," the Court noted. Because she derived her authority as an appointed conservator from the "parens patrie power of the state to protect incompetent persons," Ms. Young was subject to the more exacting scrutiny reserved for public officials.[5]
The Conservator Could Not Satisfy the Strict "Actual Malice" Test
The appellate court stated that for Ms. Young to successfully oppose the anti-SLAPP motion, she would have "to establish a reasonable probability that she can produce clear and convincing evidence showing that the statements were made with actual malice." Ms. Young's failure to marshal that evidence mandated dismissal of her lawsuit against the CBS Defendants.
The Court noted that a broadcast subject's denials of accusations are insufficient to establish actual malice. "[T]he press need not accept 'denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.' [Citation.]"[6] The Court rejected Ms. Young's claims that CBS acted with actual malice in relying on interviews with Ms. Mann and her daughter, Carol Kelly, and in purportedly failing to interview other witnesses and to review other documentary sources. The Court stated that "reasons to doubt" Ms. Mann and her daughter "were not obvious." The Court acknowledged that the medical records underlying the APS report that led to the conservatorship "contained some evidence that Mann in fact did not suffer from any type of memory or cognitive impairment." The CBS producer, Dave Clegern, also interviewed Ms. Mann personally, and he could judge for himself whether she was suffering from memory impairment. Hence, Ms. Young could not show knowledge of falsity or reckless disregard of the truth of the statements questioning the memory impairment conclusions that led to the conservatorship.
The Court also found that Ms. Young could not demonstrate that CBS was reckless in relying on Ms. Young's daughter, Ms. Kelly. CBS producer, Mr. Clegern, had interviewed Ms. Mann about the allegations of undue influence leveled the APS Report, and Ms. Mann had called them lies. Ms. Mann also told Mr. Clegern a North Carolina court had called to tell her that Ms. Kelly was not guilty of anything. The APS report that had the allegations about undue influence also did not cite any supporting source for the allegations. On this record, the Third District concluded that the conflicting evidence about Ms. Kelly did not establish actual malice.
The Court also found Ms. Young's claims that the CBS Defendants had failed to interview other persons to be unpersuasive. The Third District noted that CBS producer, Mr. Clegern, attempted to interview Ms. Mann's other daughter, Monika Mann, who was estranged from Ms. Kelly, but Monika Mann refused to talk about the case. Mr. Clegern called APS officials regarding the APS report, but they would not comment. And he called officials in North Carolina about the undue influence allegations, but they did not respond. Most significantly, Mr. Clegern attempted to verify Ms. Mann's claims about the $60,000 being taken out of the trust with inadequate accounting by contacting Ms. Mann's former attorney, Laurence Dashiell, at the suggestion of Ms. Young. But Mr. Dashiell refused to speak with Mr. Clegern. Because many witnesses would not speak to Mr. Clegern "due to the confidential nature of their relationship with Mann," the evidence "shows Clegern was not reckless in investigating this matter and attempting to speak with other witnesses." Accordingly, the Third District found that Ms. Young failed to show a probability that she could prove at trial that the CBS Defendants published the broadcast with actual malice.
The Third District's Opinion Provides Important Protection for Media Reports on Individuals Cloaked With Government Authority
The Third District's opinion provides media organizations such as CBS with breathing space to report on controversies involving individuals who are performing government functions, regardless of whether they are technically and officially on the government payroll. The recognition that such individuals are public officials subject to the actual malice standard ensures that speech will not be chilled when a news organization wades into a thicket of conflicting charges about official conduct.
The Third District's conclusion that Ms. Young did not establish a probability of prevailing on her defamation lawsuit also reaffirms the stringent standards for actual malice liability and the importance of defendants in such lawsuits of creating a detailed record of the reporting done to support the statements published by the news organization.
Davis Wright Tremaine LLP partners Thomas R. Burke and Rochelle L. Wilcox and associate Jeff Glasser represented the CBS Defendants throughout these legal proceedings.
FOOTNOTES
1 The Court cited Ghafur v. Bernstein, 131 Cal. App. 4th 1230, 1239 (2005) (charter school superintendent is public official); HBO v. Harrison, 983 S.W.2d 31, 37-38 (Tex. Ct. App. 1998) (private court-appointed psychologist held to be public official; and Kahn v. Bower, 232 Cal. App. 3d 1599, 1611 (social worker public official).
2 Kahn, 232 Cal. App. 3d at 1612.
3 Id.
4 The Third District cited Probate Code §§ 2430, 2640, which authorize a conservator to pay for his or her services from the assets of the person being conserved.
5 The Court cited Conservatorship of Wendland, 26 Cal. 4th 519, 535 (2001) on the parens patrie power. The Third District also stated that "[t]he delegation of this government power to a private individual for compensation, and the power's interference with individual liberty, rightfully attracts public scrutiny."
6 The Court cited Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 692 n.37 (1989).