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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Taranto v. North Slope Borough (12/17/99) sp-5217

Taranto v. North Slope Borough (12/17/99) sp-5217

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


SHEILA TARANTO, d/b/a TUNDRA  )
TAXI,                         )    Supreme Court No. S-8172
                              )
             Appellant,       )    Superior Court No.
                              )    2BA-92-06 CI
     v.                       )
                              )
NORTH SLOPE BOROUGH,          )    O P I N I O N
                              )
             Appellee.        )    [No. 5217 - December 17, 1999]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Second Judicial District, Barrow,
                    Michael I. Jeffery, Judge.


          Appearances:  Michael A. Stepovich, Stepovich
Law Office, Fairbanks, for Appellant.  Scott J. Nordstrand, Owens
& Turner, P.C., Anchorage, for Appellee.  


          Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          A North Slope Borough employee wrote and publicly
displayed a petition accusing a Barrow taxicab operator of illegal
sales of alcohol and drugs.  The operator sued the borough for
defamation.  The borough successfully moved for complete summary
judgment, but we reversed on appeal.  Following remand, the borough
again successfully moved for complete summary judgment.  We affirm,
holding that the borough's allegedly "piecemeal"summary judgment
motions did not require that its last motion be denied, and that
actual malice is the appropriate standard for determining whether
government speech on matters of public interest is actionable.
II.  FACTS AND PROCEEDINGS
          Sheila Taranto owned a taxicab business in Barrow. [Fn.
1]  Around November 1991 Evelyn Donovan, Clerk of the North Slope
Borough, drafted a petition concerning Taranto.  The petition read:
          We, the undersigned, have knowledge of Sheila
Taranti [sic], owner of Tundra Taxi, to sell liquor, marijuana and
cocaine.  This will authorize Public Safety to interview us to
document her illegal sale of liquor, marijuana, and cocaine or
attest to the fact that I have been witness to her illegal
activities.

The petition contained space for persons to write their names,
addresses, and telephone numbers.
          Before drafting the petition, Donovan contacted James E.
Christensen, the borough's Director of Public Safety, to tell him
what she planned to do.  After Christensen "'g[a]ve the okay' for
the idea,"Donovan typed the petition on her office computer and
made at least one copy of it.  She then placed the petition in the
front reception area at the borough's Administration and Finance
Building, where it remained for about one month.  After twenty-two
people signed the petition, Donovan delivered it to Christensen.
          In January 1992 Taranto sued the borough for defamation. 
The borough moved for summary judgment in December 1992.  The
superior court granted the motion, concluding that the borough was
not directly liable for the petition and that the borough could not
be held liable under the doctrine of respondeat superior.  Taranto
appealed, and we reversed, holding that genuine issues of material
fact precluded summary judgment under both theories of liability.
[Fn. 2]
          Upon remand the borough retained new counsel and 
requested a continuance to March or April 1997.  It also requested
that the court extend the deadline for dispositive motions to
January 6, 1997.  Taranto filed a written non-opposition to the
continuance motion and did not file an opposition to the extension
motion.  The superior court granted both of the borough's requests. 
          In October 1996 the borough moved for summary judgment on
the issue of punitive damages.  Taranto filed a written non-
opposition to that motion, and the superior court granted summary
judgment dismissing Taranto's punitive damages claim.
          In January 1997 the borough moved to establish as law of
the case a requirement that Taranto prove "actual malice"to
prevail on her defamation claim.  The borough concurrently moved
for summary judgment, arguing that Taranto could not establish
actual malice.  The superior court granted both motions and
dismissed Taranto's defamation claim.  Taranto appeals.
III. DISCUSSION
     A.   Standard of Review
          Taranto first argues that allowing the borough to file
the January 1997 motion for summary judgment was error because it
violated a policy against piecemeal litigation.  We review this
procedural issue for abuse of discretion. [Fn. 3]  
          Taranto next asserts that one need not prove actual
malice in a defamation suit against a government defendant, and 
that the superior court consequently erred in granting summary
judgment to the borough.  We review a grant of summary judgment
using our independent judgment. [Fn. 4]  We must decide whether any
genuine issue of material fact exists and whether the moving party
was entitled to judgment as a matter of law. [Fn. 5] 
          To the extent this court deals with legal issues of first
impression, we will adopt the rule of law that is most persuasive
in light of precedent, reason, and policy. [Fn. 6] 
     B.   Did the Superior Court Abuse Its Discretion in Allowing
the Borough to File a Third Motion for Summary Judgment?

          Taranto argues that allowing the borough's third motion
for summary judgment to raise the "actual malice defense"
encourages piecemeal litigation. [Fn. 7]  She claims that the
borough's answer raised "actual malice"as a defense nearly four
years before, and that the borough's two earlier summary judgment
motions could have argued the defense.  The borough counters that
the timing of motion practice is within the trial court's
discretion. 
          Taranto did not oppose the borough's request for an
extension in which to file dispositive pre-trial motions, and the
borough filed its last summary judgment motion within the thus-
extended time period.  We consequently conclude that Taranto waived
any procedural objection to filing this summary judgment motion. 
The superior court did not abuse its discretion in reaching the
same conclusion.
          Moreover, the law is contrary to Taranto's argument. 
Alaska Civil Rule 56 addresses the timing of motions for summary
judgment.  It provides that parties defending against claims "may,
at any time, move for a summary judgment."[Fn. 8]  Rule 56 does
not limit the number of times a party may move for summary
judgment.
          This court has never limited the number of times a party
may move for summary judgment.  As the borough notes, the cases
Taranto cites to establish a doctrine of avoiding piecemeal
litigation concern the avoidance of multiple appeals or the
relitigation of issues, not successive summary judgment motions.
[Fn. 9]        Because Rule 56 and Alaska case law do not preclude
successive motions for summary judgment, and because Taranto waived
her right to object, we hold that the superior court did not abuse
its discretion in allowing the borough to file its final summary
judgment motion.
     C.   Must Taranto Prove Actual Malice in Her Defamation Claim
Against the Borough?

          The superior court granted summary judgment to the
borough on Taranto's defamation claim, reasoning that actual malice
is the standard for determining whether the borough abused, and
lost, its conditional right to speak.  The court found no genuine
issues of material fact under that standard. 
          Taranto argues on appeal that the First Amendment does
not protect defamatory governmental speech, and that it was
therefore error for the superior court to apply an actual malice
requirement and to grant summary judgment to the borough.  The
borough argues that the First Amendment protects governmental
speech, subject to an actual malice standard, and that moreover, it
had a conditional privilege to speak on matters of public interest. 
          Some courts have held that the First Amendment does not
protect government speech. [Fn. 10]  Indeed, Justice Stewart
observed that "[t]he First Amendment protects the press from
governmental interference; it confers no analogous protection on
the Government."[Fn. 11]
          We need not decide here whether the United States or
Alaska constitutions protect government speech, because this court
has held that the common law confers a conditional privilege on
speech addressing matters of public health and safety. [Fn. 12]  We
do not need to consider whether a constitutional privilege applies
if we conclude that a common law privilege applies.  Undoubtedly
the speech attributed to the borough here dealt with matters of
public health and safety.  Does a common law privilege apply?
          Our decisions point to two different analytical models
potentially applicable here.
          We considered an equivalent claim in Urethane
Specialities, Inc. v. City of Valdez. [Fn. 13]   There, the City of
Valdez published partly false warnings about the safety of urethane
foam installation, prompting an installer to sue. [Fn. 14]  We
recognized that "the common law provides for privileges in various
situations in which public policy requires that a speaker be
accorded immunity for the making of defamatory statements. . . .
'Each such privilege is conditional upon the existence of a state
of facts which make it in the public interest to protect the person
speaking or writing . . . .'"[Fn. 15]
          This court then adopted, for situations "like the one
under consideration,"[Fn. 16] the privilege described in the
Restatement (Second) of Torts sec. 598A: "An occasion makes a
publication conditionally privileged if an inferior administrative
officer of a state or any of its subdivisions makes a defamatory
communication required or permitted in the performance of his
official duties."[Fn. 17]  But this privilege can be lost.  We
held that Restatement (Second) of Torts sec. 600 determines whether
the conditional privilege accorded certain government speech is
lost through abuse. [Fn. 18]  The standard set out in sec. 600 is
the
equivalent of the actual malice standard.
          Applying the Urethane Specialties analysis to this case
would require us to affirm the borough's summary judgment.  There
are no genuine factual disputes about whether the petition
concerned matters of public interest, whether the borough acted
without actual malice, and whether the persons whose conduct is
attributed to the borough acted with authority or permission.
          Although applying that approach would require affirmance
here, in many cases it may raise questions about the speaker's
authority and permission. [Fn. 19]
          Our decisions discuss an alternative approach that
applies broadly to speech on matters of public concern.  We think
that this alternative analysis encompasses cases of allegedly
defamatory governmental speech.  It also avoids the issue, inherent
in Restatement sec. 598A, of the speaker's authority or permission. 
This alternative is discussed in two cases cited by the borough. 
The borough invokes Fairbanks Publishing Co. v. Francisco [Fn. 20]
to support its argument that government speech is protected, and
Pearson v. Fairbanks Publishing Co. [Fn. 21] to support its
argument that a plaintiff must prove actual malice in all
defamation suits involving speech on matters of public concern. 
          In Francisco, a discharged firefighter sued a Fairbanks
newspaper for printing a letter by the city manager that outlined
the alleged details surrounding his firing. [Fn. 22]  Although the
defendant was a newspaper, this court went out of its way to
recognize that "judicial officers, attorneys, witnesses, jurors,
legislators, government executive officers and others are accorded
the absolute privilege of publishing false and defamatory matter
within certain limitations . . . whenever it is necessary for the
protection of one's own interest, the interest of third persons, or
the interests of the public."[Fn. 23]  This dictum acknowledged
that the common law privilege could extend to government speakers,
while leaving unresolved what those "certain limitations"on the
privilege might be.  
          In Pearson, we emphasized that for matters of public
interest, the "actual malice"standard from New York Times v.
Sullivan should apply. [Fn. 24]  There, a syndicated newspaper
columnist charged that a Fairbanks newspaper editorial libeled him.
[Fn. 25]  The court declined to consider the constitutional
dimensions of the case, and instead held that if a plaintiff could
show "actual malice,"then "the privilege that otherwise would be
enjoyed in discussion and debate on public questions and issues"
would be lost. [Fn. 26]  While the court adopted the United States
Supreme Court's definition of "actual malice,"it carefully avoided
grounding its opinion in any constitutional rights to free speech,
focusing instead on the common law conditional privilege. [Fn. 27] 

          We read Francisco and Pearson to stand for the core
proposition that speech on matters of public safety is privileged,
but that this privilege is conditional and can be lost if the
plaintiff proves that the speaker uttered untruths with actual
malice. [Fn. 28]  Thus, these cases cloak speakers addressing
matters of public health and safety with the actual malice
conditional privilege.  This protection will necessarily extend to
a speaker's employer who is alleged to be vicariously liable for
its employee's defamatory speech.
IV.  CONCLUSION
          There is no genuine dispute that the communications
concerned matters of public health or safety.  Nor is there any
basis for finding that Donovan or any borough official acted out of
actual malice.  Absent genuine, material fact disputes about these
issues, the borough was entitled to judgment as a matter of law. 
The superior court did not err in granting summary judgment to the
borough. [Fn. 29]  We therefore AFFIRM the judgment below.


                            FOOTNOTES


Footnote 1:

     For the facts underlying this appeal, see our earlier opinion,
Taranto v. North Slope Borough, 909 P.2d 354 (Alaska 1996) (Taranto
I).


Footnote 2:

     See id. at 360.


Footnote 3:

     See S & B Mining Co. v. Northern Commercial Co., 813 P.2d 264,
269 (Alaska 1991).


Footnote 4:

     See Taranto I, 909 P.2d at 355.


Footnote 5:

     See id.  


Footnote 6:

     See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 7:

     Strictly speaking, actual malice is not a "defense." It has
been said that a public figure suing for defamation "has the burden
of alleging and proving that the defendant had knowledge or acted
in reckless disregard." Restatement (Second) of Torts sec. 580A
cmt.
e (1977).


Footnote 8:

     Alaska R. Civ. P. 56(b) (emphasis added); cf. Alaska R. Civ.
P. 56(a) (concerning summary judgment motions by claimants).


Footnote 9:

     See S & B Mining, 813 P.2d at 269 (holding that court did not
violate policy against piecemeal litigation where court granted
Civil Rule 54(b) judgment for several parties in multiple party
action because remaining parties could not relitigate issues
previously decided on summary judgment); Young v. State, 491 P.2d
122, 126-27 (Alaska 1971) (holding that trial court should rule on
negligence before ruling on contributory negligence, to avoid
prompting unnecessary appeals); McCoy v. Alaska Brick Co., 389 P.2d
1009, 1011 (Alaska 1964) (holding that trial judge should have
ruled on motion for new trial so it could be reviewed with other
decision on appeal); Snipes v. March, 378 P.2d 827, 829  (Alaska
1963) (holding that trial court should have ruled on motion for new
trial along with motion for directed verdict).


Footnote 10:

     See Warner Cable Communications, Inc. v. City of Niceville,
911 F.2d 634, 638 (11th Cir. 1990); NAACP v. Hunt, 891 F.2d 1555,
1565 (11th Cir. 1990); Student Gov't Ass'n v. Board of Trustees of
Univ. of Mass., 868 F.2d 473, 481 & n.10 (1st Cir. 1989); Estiverne
v. Louisiana State Bar Ass'n, 863 F.2d 371, 379 (5th Cir. 1989).


Footnote 11:

     See Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412
U.S. 94, 139 (1973) (Stewart, J., concurring).


Footnote 12:

     Urethane Specialties, Inc. v. City of Valdez, 620 P.2d 683
(Alaska 1980); Pearson v. Fairbanks Publ'g Co., 413 P.2d 711
(Alaska 1966); Fairbanks Publ'g Co. v. Francisco, 390 P.2d 784, 793
(Alaska 1964).


Footnote 13:

     620 P.2d 683 (Alaska 1980).


Footnote 14:

     See id. at 684-87.


Footnote 15:

     Id. at 689 (quoting Francisco, 390 P.2d at 793).


Footnote 16:

     Id. at 689.


Footnote 17:

     Id.; see also Restatement (Second) of Torts sec. 598A (1977).


Footnote 18:

     See Urethane Specialties, 620 P.2d at 689-90.  The Restatement
(Second) of Torts sec. 600 provides: "[O]ne who upon an occasion
giving rise to a conditional privilege publishes false and
defamatory matter concerning another abuses the privilege if he
(a) knows the matter to be false, or (b) acts in reckless
disregard as to its truth or falsity." See also Restatement sec.
598A, cmt. 1 (specifying other ways privilege can be lost).  


Footnote 19:

     See Restatement (Second) of Torts sec. 598A (requiring that
the
communication be "required or permitted in the performance"of
the government officer's official duties).


Footnote 20:

     390 P.2d 784 (Alaska 1964).


Footnote 21:

     413 P.2d 711 (Alaska 1966).


Footnote 22:

     See Francisco, 390 P.2d at 787.


Footnote 23:

     Id. at 793.


Footnote 24:

     See Pearson 413 P.2d at 714-15.  


Footnote 25:

     See id. at 712.


Footnote 26:

     Id. at 715.


Footnote 27:

     See id. at 714-15.


Footnote 28:

     See Mt. Juneau Enter. v. Juneau Empire, 891 P.2d 829, 837-38
(Alaska 1995) (applying actual malice standard to article on
matter of public interest).


Footnote 29:

     Because we affirm the borough's summary judgment, it is not
necessary to consider the borough's argument that the protection
the government enjoys is absolute, and not merely conditional.