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Henry v. Media General Operations, Inc.

Superior Court of Rhode Island

April 4, 2018


          Providence County Superior Court

          For Plaintiff: Kathleen M. Hagerty, Esq.

          For Defendant: Stephen E. Breggia, Esq.; Raymond A. Marcaccio, Esq.; Charles N. Redihan, Jr., Esq.; Thomas C. Plunkett, Esq.

          Interested Party: David V. Igliozzi, Esq.; Michael J. Lepizzera, Jr., Esq.; Christopher M. Rawson, Esq.


          LICHT, J.

         Defendants, moving separately, seek summary judgment on the basis that Plaintiff is a public official for purposes of defamation actions, and the conduct alleged does not rise to the level of "actual malice" required in such circumstances by the U.S. Constitution. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.

         I Facts and Travel

         This case emanates from the renowned "Ticketgate Scandal" in the Cranston Police Department. On November 14, 2013, the Finance Committee of the Cranston City Council rejected a new contract with the police union. On the next night, Cranston Police Captain Stephen Antonucci (Captain Antonucci) ordered, via his personal cell phone, officers to blanket with parking tickets Wards 1 and 2, which were the wards of the Councilmen who voted against the contract. Residents of the two wards received a total of 128 overnight parking tickets on the evening in question-compared to 122 issued city-wide in the preceding two months combined. See Gregory Smith, 2 Cranston councilmen say city police retaliated because of their police contract votes by ticketing cars in their wards, The Providence Journal (Dec. 17, 2013), Mayor Allan Fung ultimately initiated an investigation of the incident and dismissed or refunded each of the tickets issued.

         Defendant James Taricani (Mr. Taricani) was an investigative reporter with the "I-Team" on WJAR-TV (WJAR), the local NBC affiliate, then owned by Media General Operations, Inc. (Media General). Defendant Christopher Lanni (Mr. Lanni) served as WJAR's news director (collectively, Mr. Taricani, WJAR, and Media General are sometimes referred to as the Media Defendants). In early December 2013, Mr. Taricani received an anonymous tip about the excessive ticketing. He found out the tip was from Defendant Peter Leclerc (Officer Leclerc)[1], a current Cranston police officer. Mr. Taricani met with Officer Leclerc who gave him information about the ticketing and suggested that Mr. Taricani make an open records request from the City of Cranston (the City) concerning ticketing on the night in question. Mr. Taricani did just that, and the information corroborated what Officer Leclerc told him.[2]

         On December 17, 2013, WJAR aired its first story about what was happening in the Cranston Police Department, particularly with the excessive ticketing. That report made no mention of Plaintiff, Captain Russell Henry (Captain Henry or Plaintiff).[3] In late December 2013, Officer Leclerc informed Mr. Taricani that the Plaintiff had been ordered to use his personal cell phone to order officers to issue the parking tickets in Wards 1 and 2.

         On December 23, 2013, Mr. Taricani received an email from Defendant Ronald Jacob (Mr. Jacob), a twenty year veteran of the Cranston police force who had retired in 2005, which stated:

"My sources have stated that Lt. Russ Henry gave the order to the officers to ticket the vehicles. The problem I see with that is Lt. Henry is an extended family member of Captain and Union President Stephen Antonucci. I hope this information is what your [sic] getting from your sources. The Department needs a top to bottom makeover."

         On December 28, 2013, Mr. Taricani received another email from Mr. Jacob reiterating Captain Henry's involvement and stating that the rumors were that Captain Antonucci and Plaintiff "were riding around the two districts that were mass ticketed and used their cell phones to contact the officer, [sic] who had those posts to ticket certain vehicles in those districts."

         For purposes of their motion for summary judgment, the Media Defendants concede that Mr. Taricani spoke to the then Chief of Police, Colonel Marco Palumbo (Colonel Palumbo), who twice told him that Plaintiff was not involved in the ticketing.[4]

         On January 10, 2014, WJAR aired a second "Ticketgate" story in which Mr. Taricani reported that Captain Antonucci, the then Cranston police union president, and Captain Henry used their personal cell phones to order other Cranston police officers to issue tickets in the wards of the councilors who voted against the proposed contract; specifically, "Antonucci allegedly told his cousin, Lt. Russell Henry, to use his personal cell phone to give the order to issue the tickets." (Am. Compl. 3.) The segment included an on-screen graphic that read: "Lt. Russell Henry . . . ordered officers to issue tickets." (Am. Compl. Ex. A.) The story also ran on WJAR's website.

         Mr. Lanni, Mr. Taricani's producer, approved both stories prior to their airing.

         In the afternoon prior to airing the story, Mr. Taricani called the Cranston police station looking for Captain Henry. He was not there, but Mr. Taricani left a voice message on another officer's phone. On the evening of January 10, 2014, after the story aired on the 6:00 news, Captain Henry encountered a photographer for WJAR and Captain Henry said he was upset about the story because he was not involved. The photographer called Mr. Taricani at home and relayed this conversation together with Captain Henry's phone number. Mr. Taricani then called WJAR and asked to have the story pulled from the 11:00 news and the website. He called Captain Henry the next day and offered him the opportunity to go on air and tell his side of the story. Captain Henry declined.

         The parties now all agree that Plaintiff was not involved in the ticketing scandal. WJAR ultimately aired a correction on February 7, 2014.

         During the time preceding the WJAR stories, Mr. Jacob and Captain Karen E. Guilbeault (Captain Guilbeault) had been in contact, primarily by telephone, regarding various issues with the Cranston Police Department. They were also in contact because Mr. Jacob was in need of certain personal records from the department, and Captain Guilbeault's position required she liaise with retirees about such requests. The specific content of those communications is not clear in the record, but Captain Guilbeault is the only active member of the Cranston Police Department with whom Mr. Jacob was in contact, and Mr. Jacob indicated at his deposition that Captain Guilbeault may have been the source of his information.[5] Plaintiff contends that the defamatory information Mr. Jacob reported to Mr. Taricani originated with Captain Guilbeault.

         Plaintiff brought this action seeking compensatory and punitive damages for libel, slander, and false light pursuant to G.L. 1956 § 9-1-28.1, as well as negligent and intentional infliction of emotional distress.[6] Defendants now separately move for summary judgment, and Mr. Jacob moves to dismiss.

         II Public Official

         Customarily, the next section of a decision would be the Standard of Review to be applied by the Court. But in this case that standard depends on whether the Plaintiff is considered to be a public official.

         If a plaintiff is a public official or public figure, [7] the plaintiff must demonstrate, by clear and convincing evidence, "actual malice" on the part of the defendant making the false statement:

"The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see Capuano v. Outlet Co., 579 A.2d 469, 472 (R.I. 1990) (holding that the "clear and convincing" evidentiary standard applies in Rhode Island); see also Restatement (Second) Torts § 580A (1977).

         Whether a person is a public official is a question of law. Capuano, 579 at 472.

         In Rhode Island, police officers have been held to be public officials for the purpose of defamation actions. Hall v. Rogers, 490 A.2d 502, 505 (R.I. 1985). In Hall, our Supreme Court concluded that police officers fit the test articulated by the United States Supreme Court in Rosenblatt v. Baer, 383 U.S. 75, 85 (1966). Id. The Court held that police officers

"have or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs, . . . and their position 'has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees."' Hall, 490 A.2d at 504 (quoting Rosenblatt, 383 U.S. at 86).

         Moreover, our Supreme Court is in accord with the overwhelming majority of other courts that have considered this issue: Indeed, "[p]olice and other law enforcement personnel are almost always classified as public officials."[8] Rodney A. Smolla, Law of Defamation § 2:104 (2d ed. 2017).

         Plaintiff was a police lieutenant being accused of unethical behavior in his official capacity. Specifically, he was accused of improperly using his supervisory position as a lieutenant to order other officers to issue parking tickets-an official act-in retaliation for adverse political decisions. Our Supreme Court's ruling in Hall, 490 A.2d at 504, controls. Plaintiff argues that our Supreme Court misinterpreted the U.S. Supreme Court's holding in Rosenblatt, 383 U.S. at 85, and that the issue should be revisited. Plaintiff would reject a per se rule and have a case-by-case analysis depending on the degree of authority or notoriety of the individual officer. At oral argument, Plaintiff's counsel argued that the Court should determine what role the officer played in the controversy before deciding whether or not he is a public official. She contended further that since Captain Henry had no role he could not be a public official.

         While Plaintiff is certainly free to make these arguments on appeal to our Supreme Court, they should not, and will not, be entertained by this Court:

"It is well settled that an opinion of [the Supreme Court of Rhode Island] declares the law in Rhode Island and that law must be followed by the lower courts of our judicial system, regardless of whether that court or any of its judges agree or disagree with our holding. As the court of last resort in this state our decisions 'are not final because they are infallible, but rather they are infallible only because they are final.' . . . Therefore, lower courts . . . must follow our established precedents." Univ. of R.I. v. Dep't of Emp't & Training, 691 A.2d 552, 555 (R.I. 1997) (internal citations omitted).

         Moreover, even if our Supreme Court concluded that a per se rule declaring all police officers public officials was not appropriate, the facts of this case strongly support finding that Plaintiff was a public official. Even applying the standard that Plaintiff advocates, Plaintiff would still be best described as a public official. The U.S. Supreme Court concluded that:

"Criticism of government is at the very center of the constitutionally protected area of free discussion. Criticism of those responsible 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." Rosenblatt, 383 U.S. at 85.

         Plaintiff, by way of his supervisory position over other officers, was in a position to appear to the public to have "control over the conduct of governmental affairs[]" even more than the average police officer. See id. Police officers are the human face of government. They embody the laws they are sworn to enforce, and the manner of that enforcement is a matter of great public concern. Senior police officers have tremendous control and discretion over how our laws are applied, and indeed, the ticketing incident underlying this case is a prime example of that discretion run amok. Surely, all senior police officers-even if not all police officers in general-have the requisite control over the conduct of governmental affairs to fall squarely within the definition of a public official. See id.

         Moreover, in Hall, our Supreme Court found a sergeant and a special police officer to be public officials. In Capuano, it found private municipal waste haulers to be public figures. Also, G.L. 1956 § 11-42-4, as amended, makes it a crime to threaten public officials and the definition of public official includes law enforcement officers.

         Plaintiff's argument that the role in the controversy should assist in determining whether one is a public official would lead to the incongruous result that a police officer could be a public official on some occasions but not on others.

         Accordingly, this Court concludes that Captain Henry, like all police officers in Rhode Island, is a public official for purposes of defamation claims. As such, he needs to show that Defendants acted with "actual malice" to sustain his claim. This standard applies to all his claims as Plaintiff may not "re-baptiz[e] [his defamation claim] as a different cause of action" to avoid the protections of the first amendment, see Trainor v. The Standard Times, 924 A.2d ...

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