Cline v. Brown

210 S.E.2d 446 (1974)

24 N.C. App. 209

C. G. CLINE v. Bertram Ervin BROWN, II.

No. 7421SC808.

Court of Appeals of North Carolina.

December 18, 1974.

Certiorari Denied February 4, 1975.

*448 Wilson & Morrow by John F. Morrow, Winston-Salem, for plaintiff appellant.

Jordan, Wright, Nichols, Caffrey & Hill by William D. Caffrey and Janet L. Covey, Greensboro, for defendant appellee.

Certiorari Denied by Supreme Court February 4, 1975.

MORRIS, Judge.

Defendant Brown contends that plaintiff's action is barred by the decision in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), which held that the First and Fourteenth Amendments to the United States Constitution delimit a State's power to award damages to a public official in a suit for libel based upon defamatory criticism of his official conduct without proof that the defendant acted with actual malicethat is, with knowledge that it was false or with reckless disregard of whether it was false. The Court there held that the Chief of Police of Montgomery, Alabama, was a public official.

There is no doubt but that plaintiff was, at the time of the occurrence, a deputy sheriff of Forsyth County. Nor is there any dispute about the fact that Mabe was engaged in criminal activity at the time of his death and that the alleged defamatory statements made of and concerning plaintiff were related to his official conduct.

For determination here are the questions: Is a deputy sheriff a public official within the meaning of New York Times Co. v. Sullivan, and if so, does the record disclose the existence of a genuine issue of fact as to whether the defendant published the alleged libel with actual malice as that term was defined in the New York Times case.

We turn first to the question of whether plaintiff is entitled to the benefit of the rule enunciated in New York Times Co. v. Sullivan, supra. The Court in Sullivan said that it was considering the case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, supra, 376 U.S. 254, at 270, 84 S. Ct. 710, at 721, 11 L. Ed. 2d 686, at 701. The advantages to the public generally from free and open discussion are so great, and the importance to the State so vast, that they more than counterbalance the occasional injury to the reputations of individuals.

The Court in Sullivan did not specify how far down the governmental hierarchy the privilege of comment on governmental conduct would go. Subsequently, however, it has been applied to a variety of law enforcement officers: Deputy Chief of Detectives of the Chicago police force [Time, Inc. v. Pape, 401 U.S. 279, 91 S. Ct. 633, 28 L. Ed. 2d 45 (1971)]; deputy sheriff in East Baton Rouge Parish, Louisiana [St. Armant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968)]; chief of police, Clarksdale, Miss. [Henry v. Collins, 380 U.S. 356, 85 S. Ct. 992, 13 L. Ed. 2d 892 (1965)]; sergeant, Wilmington, Del. police force [Jackson v. Filliben, Del.Supr., 281 A.2d 604 (1971)]; patrolman, Norwalk, Conn. police force [Moriarty v. Lippe et al., 162 Conn. 371, 294 A.2d 326 (1972)]; police sergeant, *449 Countryside, Ill. [Suchomel v. Suburban Life Newspapers, Inc., 84 Ill.App.2d 239, 228 N.E.2d 172 (1967)]; patrolman in Skokie, Ill. [Coursey v. Greater Niles Twp. Pub. Corp., 40 Ill. 2d 257, 239 N.E.2d 837 (1968)]; police lieutenant [Gilligan v. King, 48 Misc.2d 212, 264 N.Y.S.2d 309 (1965)]. However, later in Rosenblatt v. Baer, 383 U.S. 75, at 85, 86 S. Ct. 669, at 676, 15 L. Ed. 2d 597, at 605 (1966), the Court said:

"Criticism of those responsibile for government operations must be free, lest criticism of government itself be penalized. It is clear, therefore, that the `public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs."

While we readily concede that there may be cases in which the determination of this question might raise issues for the trier of fact, we do not perceive that to be the case here. In Gowens v. Alamance County, 216 N.C. 107, 109, 3 S.E.2d 339, 340 (1939), the Court said:

"The right of the sheriff to appoint deputies is a common law right. `"The deputy is an officer coeval in point of antiquity with the sheriff'". Lanier v. Greenville, 174 N.C. 311, 93 S.E. 850, 853; Borders v. Cline, 212 N.C. 472, 193 S.E. 826. He is the deputy of the sheriff, one appointed to act ordinarily for the sheriff and not in his own name, person or right, and although ordinarily appointed by the sheriff, is considered a public officer. 57 C.J. 731, Sec. 4. . . ."

And in Borders v. Cline, 212 N.C. 472, 476, 193 S.E. 826, 829 (1937), it was said:

"The duties and authority of a deputy sheriff relate only to the ministerial duties imposed by law upon the sheriff. How those duties are to be performed and the ends to be accomplished are as prescribed and directed by law, and not in accordance with the direction and discretion of the sheriff. By appointing a deputy, the sheriff merely delegates to him the authority to execute ministerial functions of the office of sheriff. Those functions are of a public character."

The appointment of deputies sheriff is provided for by the General Assembly. G.S. § 153A-103. The relationship between a sheriff and his deputy is, then, an official and not a private relationship. The deputy is a representative of the sheriff in his official capacity. He is a public officer whose authority and duties are regulated and prescribed by law. The public generally regards the acts of a deputy sheriff as the acts of the sheriff himself. The sheriff's position in government vests in him and his deputies "substantial responsibility for or control over the conduct of governmental affairs". This is certainly true where law enforcement and police functions are concerned. Additionally, though the office of deputy sheriff may be a comparatively low ranking one in the hierarchy of government, nevertheless, if the deputy's office be abused, it has great potential for social harm and thus invites independent interest in the qualifications and performance of the person or persons who hold the position. So that, in addition to the fact that technically under our court decisions a deputy sheriff is a public official, the test of Rosenblatt v. Baer, supra, has been met, and defendant is entitled to the benefit of the rule of New York Times Co. v. Sullivan.

Having determined that defendant, as an individual citizen critical of official conduct, is entitled to the constitutional guaranties which require a public official to prove that the alleged libelous statements were made with actual malice, and assuming, without deciding, that the complaint sufficiently alleges actual malice, we turn now to the question of whether the record before us discloses the existence of a genuine issue of fact as to whether defendant published the alleged libelous statement with actual malice.

The complaint alleges that the libelous statements were "one of the deputies who *450 fired at Mabe may have had a personal grudge against him" and "[w]e have reason to believe that the agents responsible for Mabe's death may have conspired to `injure, threaten or intimidate' Mabe `under color of state law'" and ". . . that Deputy C. G. Cline, who along with Deputy E. P. Oldham fired at Mabe, once made comments to another Legal Aid Society lawyer indicating that he may have had a grudge against Mabe". Defendant does not deny the contents of the letter nor that a copy was given to the newspaper for publication.

Actual malice is defined in New York Times Co. v. Sullivan as knowledge of falsity or with a reckless disregard of whether it was false. The affidavit filed by defendant gave the source of his information and leads inescapably to the conclusion that, if the statements were in any way false, defendant had no knowledge of their falsity. The contents of his affidavit with respect thereto are undisputed, nor does any affidavit submitted by plaintiff in opposition to the affidavits of defendant raise any issue of fact with respect thereto. The phrases themselves and the context of events and circumstances under which the letter was written belie any "reckless disregard" of whether the statements were false. The words used are "may have a personal grudge", "may have conspired". The caution inherent in the words does not bespeak "reckless disregard". Additionally, the letter was written to the proper law enforcement agency suggesting the possibility of an investigationnot accusing the officer of misconduct.

We agree with the trial court's conclusion that the defendant's statements were made with no knowledge of the falsity thereof and without "reckless disregard" for the truth or falsity of his statements.

In the court's conclusion that "no genuine issue of fact exists with regard to the presence of actual malice as defined in New York Times v. Sullivan" we concur.

Affirmed.

CAMPBELL and MARTIN, JJ., concur.