California Court of Appeal Holds That a Private Conservator is a Public Official; Finds No Actual Malice Shown in Claim Based on CBS Report About Conservatorships
A conservator appointed by the court to temporarily handle certain 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 3rd Appellate District Court of Appeal held on Dec. 28, 2012. (A link to the court’s 16-page opinion, which appends a transcript of the challenged broadcast, can be accessed here.)
Conservator Ms. Young’s lawsuit Stems from KOVR-TV Channel 13 news reports on conservatorships
In Young v. CBS Broadcasting, Inc., California Court of Appeal Case No. C064567, the 3rd District found that the professional conservator and fiduciary plaintiff, Carolyn Young, should be treated as a public official for purposes of defamation law when she acted at the request of a government agency (Adult Protective Services – “APS”) to secure a temporary conservatorship for an 86-year-old woman, Mary Jane Mann. A few months after entry of the conservatorship, following loud complaints from Ms. Mann and a court-ordered mediation, the parties agreed to a co-trusteeship arrangement subject to court supervision, with Ms. Young and Ms. Mann serving as co-trustees of Ms. Mann’s affairs. Ms. Mann continued to contest even the co-trusteeship and after nearly two years of litigation, had it dissolved by court order—shortly after the news reports at issue in the lawsuit.
The news reports—part of the station’s “Call Kurtis” investigative reporting series—were broadcast in two parts and also distributed online. The first broadcast focused on Ms. Mann’s claims that she was competent and should never had been conserved or subject to the court-approved co-trusteeship with plaintiff. 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 first broadcast defamed her, including statements by Ms. Mann that allegedly accused Ms. Young of stealing, and statements that questioned the claims by Ms. Young and APS that the conservatorship was justified by memory impairment.
The Yolo County Superior Court held that 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 nine 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 3rd District Court of Appeal 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 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 because 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.’”
The 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,” Ms. Young’s assessments and decisions directly determined Ms. Mann’s financial life and even where Ms. Mann could maintain a permanent residence. The appellate court observed: “Young exercised significant 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 appellate court 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.” In reaching this decision, the 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.
The conservator could not satisfy the strict “actual malice” test
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’ news report discussing Ms. Mann’s complaints about her involuntarily conservatorship was broadcast with “actual malice.”
The appellate 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.’” The court also 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 because “reasons to doubt” Ms. Mann and her daughter “were not obvious.”
In addition, reviewing the many witnesses the producer had contacted for the investigation, the court noted that many witnesses would not speak to Mr. Clegern “due to the confidential nature of their relationship with Mann.” The court determined that the evidence “shows Clegern was not reckless in investigating this matter and attempting to speak with other witnesses.” Accordingly, the court found that Ms. Young failed to show a probability that she could prove at trial that the CBS defendants published the report with actual malice.
The published decision by a unanimous court should be of considerable assistance to media defendants who face lawsuits arising from news reports on government contractors and appointees when the government has outsourced important public functions to outside professionals. It provides media organizations 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 opinion also reaffirms the stringent standards for actual malice liability and the need for defendants in such lawsuits to create a detailed record of their newsgathering efforts to support the actual malice defense.
Davis Wright Tremaine LLP partners Thomas R. Burke and Rochelle L. Wilcox and associate Jeff Glasser represented the CBS Defendants throughout these legal proceedings.