Opinion
1 CA-CV 11-0617
03-26-2013
JAMES MARTIN HOUSTON, Plaintiff/Appellant, v. STATE OF ARIZONA BOARD OF EDUCATION, a political sub-division of the State of Arizona; JESSE ARY; VICKI BALLENTINE; CHARLES EASAW; TOM HORNE; JOANNE KRAMER; LARRY LUCERO; ANITA MENDOZA; JAIME MOLERA; JACOB MOORE; CECILIA OWEN; KAREN NICODEMUS; and VINCE YANEZ, as members of the State Board of Education, and individually, Defendants/Appellees.
James M. Houston, Plaintiff/Appellant In Propria Persona Oregon Eric J. Bistrow, Acting Attorney General by James B. Bowen, Assistant Attorney General Attorneys for Defendants/Appellees Phoenix
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 28, Arizona Rules of
Civil Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. CV2008-020926
The Honorable Gary E. Donahoe, Retired Judge
The Honorable Andrew G. Klein, Judge
AFFIRMED
James M. Houston, Plaintiff/Appellant
In Propria Persona
Oregon Eric J. Bistrow, Acting Attorney General
by James B. Bowen, Assistant Attorney General
Attorneys for Defendants/Appellees
Phoenix PORTLEY, Judge ¶1 James Houston ("Houston") challenges the summary judgment granted to the State of Arizona Board of Education and various members of the Board (collectively "SBE"). He argues that the judgment was inappropriately granted because genuine issues of fact exist that should have precluded the entry of judgment. We disagree, and affirm the summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to the party against whom judgment was entered. Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 54, ¶ 2, 156 P.3d 1157, 1159 (App. 2007).
¶2 Houston applied for a teaching certification. Although the Professional Practices Advisory Committee had recommended approval, the SBE voted to deny the recommendation because he had only been sober for thirteen months. After he asked for a continuance, his application for certification was placed on the agenda for the May 19, 2008 public meeting. ¶3 At the public meeting, Houston was given the opportunity to speak. He discussed his work with special needs children while he was a school social worker on the Navajo Nation. He also explained that he resigned because there was a "threat made on his life," "he had been cursed by a medicine man," and that "the Navajo are a highly superstitious people." ¶4 In discussing the presentation, SBE member Defendant Thomas C. Horne ("Horne"), then the State Superintendent of Schools, stated: "Among other things, the reference to the Navajo people as a stupid superstitious people and other references to them . . . I believe is like the kind of stereotype thinking that a teacher should not have." Horne also stated that Houston's "presentation does indicate a number of factors that should not be considered the professional state of mind of a teacher, including but not limited to, stereotyped statements about racial groups." Three months later, the SBE denied Houston's application, and the order explained that Houston "made stereotypical statements against racial groups which shows him to be of such character . . . that he is unfit to be a teacher." ¶5 Houston filed a complaint in Maricopa County Superior Court against the SBE and its members. After he amended his complaint, the SBE filed a motion for summary judgment. After Houston responded, the court subsequently granted the motion in June 2011. The court found that, assuming that Horne voted against Houston's teacher certification application because he erroneously heard and recited how Houston had characterized the Navajo people, Arizona law does not make the statements defamatory. After judgment was entered, this appeal followed.
SBE argues that Horne only said "superstitious" when recounting Houston's statements.
ISSUES ON APPEAL
¶6 In addition to his principle issue that fact issues exist which preclude summary judgment, Houston raises four additional issues. Specifically, he argues the court erred as follows: (1) by denying his notice of disqualification of the trial judge; (2) by failing "to examine allegations of tampering with evidence and false swearing," (3) by resolving the matter by summary judgment when the court had said the matter was going to be resolved by a jury; and (4) by failing to provide legal authority and justification for the grant of summary judgment.
DISCUSSION
I. Summary Judgment ¶7 Houston contends there are four contested issues of fact. First, did Horne falsely accuse him of stating that the Navajo are a "stupid superstitious people?" Second, did the statements made by the SBE members at the public meeting constitute defamation? Third, did Horne slander Houston by stating that Houston had made "stereotypical statements about racial groups?" Finally, was Houston damaged by the statements made at the public meeting? ¶8 Summary judgment is proper when the pleadings show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Ariz. R. Civ. P. ("Rule") 56(c); see also Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). We review the entry of summary judgment de novo and determine "whether any genuine issues of material fact exist," by considering only the evidence presented to the court when it addressed the motion and the applicable law. Brookover, 215 Ariz. at 55, ¶ 8, 156 P.3d at 1160; see also Dube v. Likins, 216 Ariz. 406, 419, ¶ 44, 167 P.3d 93, 106 (App. 2007) (stating that, because the trial court determined that the defendant was not liable for defamation based on a question of law, the appellate court "review[s] that decision de novo"). ¶9 In resolving whether the court erred, we first determine whether the statements constitute defamatory language. "To be defamatory, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation." Godbehere v. Phoenix Newspapers, Inc. , 162 Ariz. 335, 341, 783 P.2d 781, 787 (1989). ¶10 Assuming Horne added "stupid" to his description of Houston's statement about the Navajo people, there was no evidence that the added word brought Houston into disrepute, contempt, or ridicule. Horne was summarizing Houston's public statements that were heard by the other SBE members. Because Horne was summarizing Houston's statements about others, his statement with the added word was not capable of a defamatory meaning. Accordingly, summary judgment was appropriate for that statement. ¶11 Next, did Horne's statement that Houston made "stereotypical remarks about racial groups" constitute defamatory language? At first blush, the statement suggests that Houston made a racist comment which could bring him into disrepute. See Godbehere, 162 Ariz. at 341, 783 P.2d at 787. But, is the statement actionable; that is, is the statement of public concern, can it be proved to be false, and, if so, can criticism be proven to be false? Turner v. Devlin, 174 Ariz. 201, 204, 206, 848 P.2d 286, 289, 291 (1993). ¶12 Horne's statements as an SBE member were a matter of public concern because the certification of public school teachers is a matter of public concern. Our government has an obligation to ensure that only qualified and certified teachers teach our children. A.R.S. §§ 15-531 to -552 (West 2013) ("Certification and Employment of Teachers"); A.R.S. § 15-203 (West 2013) (stating that the State Board of Education has a duty to "[s]upervise and control the certification of persons engaged in instructional work directly as any classroom, laboratory or other teacher"). Horne's statements, moreover, were his impressions about and after Houston's presentation. The statements reflect Horne's opinion about what he heard; an opinion that is constitutionally protected and not subject to objective proof of its falsity. See Ruiz v. Hull, 191 Ariz. 441, 453, ¶ 47, 957 P.2d 984, 996 (1998) (stating that "[t]he expression of one's opinion is absolutely protected by the First and Fourteenth Amendments"); Yetman v. English, 168 Ariz. 71, 81, 811 P.2d 323, 333 (1991). Therefore, Horne's opinion could not be proven to be false and could not be capable of a defamatory meaning. ¶13 Houston additionally asserts that Horne also defamed him by stating that he made stereotypical statements about racial groups even though Houston "had made a single statement in reference to a single racial group." The statement, though a summary, can be proven to be false. See Dube, 216 Ariz. at 419, ¶ 46, 167 P.3d at 106 (explaining that the defendant's statements that the plaintiff had "committed an indiscretion or transgression" were "actionable as defamatory" because whether the plaintiff did commit the "transgression could be proved false"). Despite the fact that the statement was susceptible to an interpretation that it stated a fact and could be proven to be false, it was substantially true even though Horne misspoke that Houston made more than one statement about more than one racial group. "Substantial truth is an absolute defense to a defamation action" even if there are slight inaccuracies. Read v. Phoenix Newspapers, Inc. , 169 Ariz. 353, 355, 819 P.2d 939, 941 (1991). Therefore, we examine "whether the gist or sting of the statement[] . . . would have made a material difference" to those present at the SBE meeting if Horne had correctly restated Houston's statement. Id. (internal quotation marks omitted) . ¶14 Although Horne mischaracterized Houston's statement about the Navajos, "[w]hen the underlying facts are undisputed, the determination of substantial truth is a matter for the court." Id. Despite Houston's argument that Horne's recitation gave the impression that he was a racist, any "damage to [Houston's] reputation" stems from the fact that he made a stereotypical statement about the Navajo — that they were highly superstitious. Id. As a result, "the sting of the two versions is not substantially different," and Horne's statement "gave a substantially true account" of Houston's statement in the public meeting. Id. at 356, 819 P.2d at 942. Consequently, the court did not err by determining that the statement, nor the others, defamed Houston or by granting SBE summary judgment.
Although Houston asserts that SBE both libeled and slandered him, Arizona recognizes the single publication rule. Ariz. Rev. Stat. ("A.R.S.") § 12-651(B) (West 2013). As a result, Houston has only one defamation claim.
Although Horne denies adding the word "stupid," the transcript provided by Houston, and reviewed by the court, supports his claim.
Because we determine the SBE and its members are not liable to Houston, we do not need to address his damage claims.
II. Denial of the Challenge for Cause ¶15 Houston sought to disqualify the trial judge for cause by filing a motion and affidavit pursuant to Rule 42(f)(2) in March 2011. He argues that his notice was improperly denied. We review the ruling for an abuse of discretion. See, e.g. , Anderson v. Contes, 212 Ariz. 122, 124, ¶ 5, 128 P.3d 239, 241 (App. 2006). ¶16 Houston sought to disqualify the trial judge on two grounds. First, he alleged that the judge had lied about whether he had made a contribution to Horne's opponent for the Office of Attorney General and, as a result, did not think he could receive a fair and impartial trial. The record reveals that in September 2010 the trial judge disclosed that he had made a campaign contribution to Felicia Rotellini. At that time, Houston indicated that he did not think that the trial judge had to recuse himself. Houston, however, resurrected the issue in his motion, and it was forwarded to presiding judge of the civil department for resolution pursuant to Rule 42(f)(2)(D). The trial judge submitted his declaration that he made the contribution and attached a carbon copy of the check written to the campaign in August 2010. After reading both affidavits, the presiding judge denied the motion in April 2011. He subsequently denied Houston's second motion to disqualify the trial judge after finding that the second motion added nothing additional to the original motion. ¶17 In addition to challenging the rulings, Houston argues that the trial judge should have independently recused himself because of the political controversy surrounding allegations being made by the then-county attorney, which proved to be false. We disagree. ¶18 "A party challenging a trial judge's impartiality must overcome the presumption that trial judges are free of bias and prejudice, and must set forth a specific basis for the claim of partiality and prove by a preponderance of the evidence that the judge is biased or prejudiced." Simon v. Maricopa Cnty. Med. Ctr., 225 Ariz. 55, 63, ¶ 29, 234 P.3d 623, 631 (App. 2010) (internal quotation marks and citation omitted). Although "[i]t is generally conceded that the bias and prejudice necessary to disqualify a trial judge must arise from an extra-judicial source," Smith v. Smith, 115 Ariz. 299, 303, 564 P.2d 1266, 1270 (App. 1977), here, despite Houston's allegations, the trial judge demonstrated that he had made a contribution to the Rotellini campaign before advising the parties on the record, and the presiding civil department judge did not find that Houston had rebutted the presumption. Accordingly, we do not find that the ruling was an abuse of discretion. ¶19 Moreover, the trial judge did not have an independent requirement to recuse himself; an argument that was not raised to the trial court. Other than supposition, Houston did not present any information that began to show that the judge had a conflict with any of the parties. He did not present any evidence that the trial judge could not handle the case despite any political maelstrom, especially since neither the State Department of Education nor the Attorney General's Office was involved. At best, Houston was complaining about some rulings, and the mere fact that the judge ruled against him does not give rise to any presumption that the judge was biased against him. Simon, 255 at 63, ¶ 30, 234 P.3d at 631. Consequently, we find no abuse of discretion.
Houston's affidavit noted that the Rotellini campaign did not have a record of the contribution, and he suggested that the trial judge produce a copy of the check.
III. Other Issues ¶20 Houston argues that the court erred by denying his request to review certain items. He has waived the issue. His brief did not cite to the record and did not provide any legal authority for his argument. See Ariz. R. Civ. App. P. 13(a)(6) ("The brief of the appellant shall concisely and clearly set forth . . . [a]n argument which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on."); Polanco v. Indust. Comm'n of Ariz., 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (appellant's failure to develop and support argument waives issue on appeal); In re U.S. Currency in Amount of $26,980.00, 199 Ariz. 291, 299, ¶ 28, 18 P.3d 85, 93 (App. 2000) ("This bald assertion is offered without elaboration or citation to any . . . legal authority. We will not consider it."). Consequently, we will not review it. ¶21 Houston has also waived his contention that the court erred by resolving the case by summary judgment in June 2011, when the court indicated in September 2010 that the matter would be resolved by a jury trial. Again, he has waived the claim because his brief did not cite to any authority that precludes the court from resolving a case by summary judgment, where appropriate, despite the court's earlier statements. See Ariz. R. Civ. App. P. 13(a)(6); Polanco, 214 Ariz. at 491 n.2, ¶ 6, 154 P.3d at 393 n.2; Currency, 199 Ariz. at 299, ¶ 28, 18 P.3d at 93. ¶22 Houston also argues that the court's summary judgment ruling is legally insufficient because it does not contain legal authorities. Absent a requirement by statute or rule, a trial court does not err by not specifying its factual or legal reasons for its ruling. See Orkin Exterminating Co., Inc. v. Robles, 128 Ariz. 132, 134, 624 P.2d 329, 331 (App. 1980). Accordingly, the argument does not support a reversal of the ruling.
Houston has not challenged the judgment granted on his claims for intentional infliction of emotional distress, negligent infliction of emotional distress and false light invasion of privacy. He has waived his ability to challenge the judgment on those claims. See Ariz. R. Civ. App. P. 13(a)(6); Polanco, 214 Ariz. at 491 n.2, ¶ 6, 154 P.3d at 393 n.2; Currency, 199 Ariz. at 299, ¶ 28, 18 P.3d at 93.
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CONCLUSION
¶23 Based on the foregoing, we affirm the trial court's judgment.
_____________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: _____________________
PATRICIA A. OROZCO, Judge
_____________________
RANDALL M. HOWE, Judge