Cole v. Star Tribune

• Decision Date: 14 July 1998
• Docket Number: Nos. C8-97-2281,C9-98-50,s. C8-97-2281
• Court: Minnesota Court of Appeals
• Parties: 26 Media L. Rep. 2415 Harvey James COLE, (C8-97-2281), Brehmer & Rosen, (C9-98-50), Appellants. v. The STAR TRIBUNE, et al., Defendants, St. Paul Pioneer Press, et al., Denise Sibenaller, Diane Mundt, Sandra Bates, Respondents.

Page 364

581 N.W.2d 364

26 Media L. Rep. 2415

Harvey James COLE, (C8-97-2281), Brehmer & Rosen (C9-98-50), Appellants. v. The STAR TRIBUNE, et al., Defendants St. Paul Pioneer Press, et al., Denise Sibenaller, Diane Mundt, Sandra Bates, Respondents.

Nos. C8-97-2281, C9-98-50.

Court of Appeals of Minnesota.

July 14, 1998.

Syllabus by the Court

1. Pursuant to the wire service defense, a newspaper, under ordinary circumstances, does not act negligently by relying on the accuracy of a news item obtained from a reputable wire service.

2. A crime victim's statement to the Minnesota Board of Pardons that is possibly pertinent or relevant to the proceedings is absolutely privileged.

3. A district court does not abuse its discretion by awarding bad faith costs and fees when the sanctioned party has not investigated the factual or legal basis for the claim and does not have a good faith belief that the law should be extended.

4. Attorney fees will be awarded on appeal when a party continues to assert frivolous claims and provides no reasonable basis to distinguish applicable law.

5. A party who fails to comply with Minnesota Rules of Civil Appellate Procedure may have the non-conforming portions of its brief stricken.

Jesse Gant, III, Minneapolis, for appellant Cole.

David L. Brehmer, Rachel B. Rosen, Brehmer & Rosen, Bloomington, appellant pro se in C9-98-50.

Stephen J. Smith, Smith & Tollefson, Owatonna, for respondent Diane Mundt.

J. Mark Catron, Autumn L. Anderson, Hansen, Dordell, Bradt, Odlaug & Bradt, St. Paul, for respondent Sandra Bates.

Eric J. Magnuson, Todd P. Zettler, Rider, Bennett, Egan & Arundel, Minneapolis, for respondent Denise Sibenaller.

Paul R. Hannah, St. Paul, for respondent St. Paul Pioneer Press and Knight Ridder Information, Inc.

Hubert H. Humphrey, III, Peter M. Ackerberg, St. Paul, for amici curiae State of Minnesota and Minnesota Board of Pardons.

Randy Lebedoff, Minneapolis, for respondents.

Considered and decided by AMUNDSON, P.J., and KLAPHAKE and SHUMAKER, JJ.

OPINION

SHUMAKER, Judge.

Appellants Cole and Brehmer & Rosen seek review of (1) an adverse summary judgment in a defamation action, and (2) the district court's imposition of bad faith costs and fees. Respondents Sibenaller, Mundt, and Bates move to strike portions of appellants' briefs and for an award of bad faith costs and fees on appeal. We affirm summary judgment and grant respondents' motions.

FACTS

In 1997, appellant Harvey James Cole, represented by appellant Brehmer & Rosen, P.L.L.P., commenced a defamation action against respondents Minneapolis Star Tribune, Cowles Media Co., St. Paul Pioneer Press, Knight Ridder (collectively "the media"), and against his wife's nieces Denise Sibenaller, Diane Mundt, and Sandra Bates (collectively "nieces"). ¹ Cole alleged that his nieces defamed him before the Minnesota Board of Pardons and that the media also defamed him by publishing the nieces' statements to the board.

In May 1989, Cole shot and killed his wife. At the time of the shooting, Cole was taking the drug Halcion. He was found lying next to his wife with a gun between them. Cole was taken to a hospital and the police interviewed him there for approximately 30 minutes.

He initially said he did not remember what had happened to his wife. During the interview, however, he said that he remembered talking to her at approximately 2:00 a.m. the morning of the shooting. He told the police that he had a gun in the house and recalled pointing it at his wife. At first he said he did not know why he pointed it at her, but later said it was because they had had a disagreement. He recalled that she was lying in her bed, facing away from him. He heard a gunshot and thought that it was after that that his wife told him she was hurt. She told him her "lung had exploded or something," and that she was hurt and bleeding. Cole recalled his wife "wrestling around with a pillow under her head and back and forth." He thought he talked to her about four or five minutes about being hurt; she asked him to call 911. Cole did not call 911.

Mrs. Cole's death certificate listed her cause of death as a loss of blood attributable to two gunshot wounds. The death certificate estimated that she died 20 minutes after she was shot.

Cole was arrested and pleaded guilty to second-degree murder. He was sentenced to 13 1/2 years in prison. While in prison, he learned that other persons who had committed crimes while taking Halcion had been released due to effects of the drug. Shortly thereafter, he applied to the board of pardons for early release. The board of pardons publicly noticed the meeting and informed victims of Cole's crime that they had a right to be present at Cole's hearing, that they could submit a written or oral statement regarding the harm suffered by the victim, and that they could recommend denial or granting of the relief requested by Cole.

Sibenaller, Bates, and Mundt received personal, advance notice of the board of pardons' hearing. Between March 1 and 2, 1995, Sibenaller, Bates, and Mundt submitted statements to the board. The letters were filed with the board and were open to public inspection. Bates wrote:

This was a cold blooded murder, not a mercy killing of a struggling family member, or even an impulsive act of passion, but a spineless act of shooting someone while they slept in their bed at night.

Sibenaller wrote: "Where was Margaret's mercy? It wasn't there in the 20 minutes that she begged for her life before he shot her again!" Mundt's letter spoke only of the loss her aunt's death caused.

None of the three nieces attended the March 22, 1995, board of pardons public hearing and none of them made any comments to the board about Cole except through their written correspondence. The board rejected Cole's petition.

On March 23, 1995, the Associated Press (AP) placed an article on its wire about Cole and the board's reasons for rejecting his petition. The article stated that Cole shot his wife once and then ignored her pleas for mercy before he shot her a second time. That article was picked up by respondent St. Paul Pioneer Press and printed in its newspaper verbatim, except for one immaterial sentence, under the AP caption.

After the board of pardons refused to release Cole, he petitioned the district court for resentencing and was eventually resentenced and released in September 1996. Within approximately six months, the nieces were served with Cole's defamation complaint. Sibenaller and Mundt were served on March 21, 1997. Bates was served on March 24, 1997. The basis of Cole's complaint is that his nieces' letters harmed him, not only with the pardon board, but that they also further damaged his "already soiled reputation" and their comments may affect his future. His complaint alleges that the media defamed him by printing statements that were false and defamatory.

Summary judgment was granted to the media on the basis of the wire service defense and to the nieces on the bases of statute of limitations and privilege. The district court awarded costs and attorney fees to the nieces. The award was made against Cole personally and Cole's counsel at the district court, Brehmer & Rosen. Cole and Brehmer & Rosen appeal separately.

ISSUES

1. Did the district court err when it granted summary judgment based on the wire service defense?

2. Did the district court err when it held that respondents Mundt, Sibenaller, and Bates were absolutely privileged to make their statements to the pardon board?

3. Did the district court abuse its discretion when it ordered appellants jointly to pay bad faith costs and fees?

4. Does appellants' failure to comply with the rules of civil appellate procedure require that portions of their briefs be stricken?

ANALYSIS

On appeal from summary judgment, we review the record to answer two questions: (1) whether any genuine issues of material fact exist, and (2) whether the district court erred in its application of the law. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988).

I. Wire Service

The district court, relying on the "wire service" defense, did not err when it granted the media summary judgment because the AP story and the Pioneer Press story were identical.

In Minnesota, a private individual's defamation cause of action against a newspaper must demonstrate that the newspaper knew or should have known that the defamatory statement was false. Jadwin v. Minneapolis Star and Tribune Co., 367 N.W.2d 476, 491 (Minn.1985). The "wire service" defense recognizes that a newspaper, under ordinary circumstances, cannot be found by a jury to have acted negligently by relying on the accuracy of a news item obtained from a reputable wire service. Appleby v. Daily Hampshire Gazette, 395 Mass. 32, 478 N.E.2d 721, 725 (1985). Numerous jurisdictions have adopted this defense. See, e.g., Waskow v. Associated Press, 462 F.2d 1173, 1175-76 (D.C.Cir.1972); Winn v. Associated Press, 903 F.Supp. 575, 579 (S.D.N.Y.1995), aff'd 104 F.3d 350 (2d Cir.1996); O'Brien v. Williamson Daily News, 735 F.Supp. 218, 225 (E.D.Ky.1990), aff'd 931 F.2d 893 (6th Cir.1991); Nelson v. Associated Press, Inc., 667 F.Supp. 1468, 1476-77 (S.D.Fla.1987); Appleby, 478 N.E.2d at 725, Mehau v. Gannett Pacific Corp., 66 Haw. 133, 658 P.2d 312, 322-23 (1983); Layne v. Tribune Co., 108 Fla. 177, 146 So. 234, 238-39 (1933); Howe v. Detroit Free Press, Inc., 219 Mich.App. 150, 555 N.W.2d 738, 740-41 (1996); Van Straten v. Milwaukee Journal Newspaper-Publisher, 151 Wis.2d 905, 447 N.W.2d 105, 112 (Wis.Ct.App.1989), review denied 451 N.W.2d 297 (Wis.1989); see also James E. Boasberg, With Malice Toward None: A New Look at Defamatory Republication and Neutral Reportage, 13 Hastings Comm. & Ent. L.J. 455, 457-64 (1991) (discussing the origin and evolution of the "wire service" defense).

While no Minnesota court has specifically addressed the validity of the wire service defense, the...