Brad Butler v. Hearst-Argyle Television

Appellant, Brad Butler, brings the instant appeal challenging the Benton County Circuit Court's order granting summary judgment in favor of appellees, Hearst-Argyle Television, Inc., its Arkansas affiliate, KHBS/KHOG-TV, and one of its reporters, Rhonda Justice. Butler, a former Benton County prosecuting attorney, complained that appellees committed the torts of defamation, invasion of privacy, and outrage by broadcasting portions of Benton County inmate Stephanie Roberts's videotaped affidavit alleging a sexual relationship with Butler. The Court ofAppeals certified this first-impression case for us to consider whether the "fair-report privilege" shields appellees from liability under the instant facts. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(d) and 1-2(b)(1) and (6) (2000).

Background

Butler sued appellees on September 28, 1999, after KHOG-TV aired a report containing clips from Stephanie Roberts's videotaped affidavit, detailing her alleged sexual relationship with Butler. In particular, Roberts claimed that she had sexual intercourse with Butler in his office during a time when she was being prosecuted by the prosecutor's office. According to Butler, he first met Roberts when she offered to wear a wire while sharing a jail cell with Brandi Orman, a murder suspect. The prosecutor's office utilized Roberts as an informant in a number of cases. Roberts was ultimately released on probation, subject to home detention and monitoring. Then, in late January 1999, Roberts told Butler that she was being sexually harassed by members of the Benton County Sheriff's Department. Although Butler never confirmedRoberts's allegations, he acknowledged that he investigated the complaint, took recorded statements from Roberts, and reviewed jail files.

On June 2, 1999, Roberts cut off her ankle-monitoring device and held herself at gunpoint inside a home in Bella Vista. According to witnesses, Roberts demanded to speak with Butler. Authorities eventually disarmed Roberts but allowed her to remain in the home until Butler arrived. Roberts explained that she wanted to tell Butler that she had miscarried his baby. KHOG-TV reporter Rhonda Justice, who had previously met with Butler about Roberts's sexual-harassment allegations against the jailers, observed the "strange treatment" Roberts received during the stand-off and decided to visit her in the Benton County Jail later that evening. During their meeting, Roberts reported that she had miscarried Butler's baby. Justice met with Roberts again, a few days later, and also visited with her by telephone several times. During these interviews, Roberts admitted that she had numerous sexual encounters with Butler in his office and once in his Suburban while parked in front of her mother's home.

In light of Roberts's remarks, her attorneys questioned Butler about the allegations, which Butler denied. Her attorneys also informed Butler that he had "twenty-four hours to resign or else." In response, Butler filed a motion to voluntarily recuse from prosecuting Roberts's case. Roberts's attorneys then filed a cross-motion seeking Butler's recusal and the appointment of a special prosecutor. As an exhibit to the motion, Roberts's attorneys attached her videotaped affidavit detailing four alleged incidents of sexual intercourse with Butler, including three encounters in the prosecutor's office and one in his vehicle. She also discussed the events surrounding her stand-off with the police. Notably, Roberts explained that she made the affidavit in response to Rhonda Justice's claim that she had pictures of Butler and Roberts and planned to release them.

On July 2, 1999, KHOG-TV broadcast a report stating that Butler had been asked to recuse from Roberts's case because of allegations that " . . . Butler and Roberts had . . . an inappropriate sexual relationship while Roberts was on probation for check forgery. Attorneys also provided a videoaffidavit in which Roberts says she had sex with Butler on four occasions." The video clip contained Roberts's statement, "I mean, to be blunt, we had sex in his office." The televised report also indicated that Butler called the allegations false, that he welcomed the appointment of a special prosecutor, and was "confident that there will be no evidence of criminal wrongdoing by him or his office."

Special Prosecutor John Everett issued a report on December 1, 1999, concluding that, while there had been no criminal conduct involved, Butler and Roberts were certainly engaged in a relationship characterized as "unprofessional, far outside the ordinary, [and] reflected adversely on the Prosecuting Attorney's Office, the criminal justice system in Benton County, the legal profession, and Brad Butler himself." Everett's report also noted that the relationship involved numerous late-night phone calls from Butler to Roberts, Butler's intervention in some of Roberts's criminal cases and probation matters, and Roberts's knowledge of matters about Butler "which would not normally be known by a defendant in a criminal case," including the location of a scar on Butler'sstomach and Butler's very new home address and phone number. Finally, Everett observed that Butler's response to the allegations was "non-committal" and "less than convincing as a denial and could be construed as a tacit admission." A footnote to the report addressed the existence of the rumored pictures but explained that "no such photographs have been found and [Everett] believe[d] that none exist."

For his part, Butler complained that Rhonda Justice "precipitate[d] Roberts' actions and . . . influence[d] Roberts' allegations against Butler . . . [and] intentionally manufactured the news story about Butler and Roberts as there [was] no sexual contact between Butler and Roberts." Although he conceded that the "fair-report privilege" protects the publication of statements made during a judicial proceeding if the report is fair, accurate, and complete, Butler asserted that KHOG-TV's report was not privileged because it was not fair, accurate, or impartial. Along those lines, Butler averred that appellees knew that Roberts's allegation that Justice had pictures was important to the story but delayed reporting that fact for twelve days following its initialreport. Butler further reasoned that appellees should not be entitled to the privilege because they were "involved in promulgating the story, and Justice had knowledge of the likely falsity of the allegations behind the story."

Appellees responded to Butler's lawsuit by filing a motion for summary judgment, attaching Special Prosecutor Everett's report as an exhibit and asserting the fair-report privilege. Based on the pleadings and exhibits, the trial court granted appellees' motion for summary judgment. From that order, Butler filed the instant appeal challenging the application of the fair-report privilege to appellees. Specifically, appellant argues that the privilege does not apply "when the defamatory statement results from elicitation and coercion" and when the report was not fair, truthful, or accurate. We find no merit in appellant's arguments, and we affirm the trial court's grant of summary judgment.

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Affirmed

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Unknown

Reported by Kent Morlan