Diesen v. Hessburg, C2-88-1345

• Decision Date: 28 March 1989
• Docket Number: No. C2-88-1345,C2-88-1345
• Citation: 437 N.W.2d 705
• Parties: 17 Media L. Rep. 1389 Donald J. DIESEN, Appellant, v. John HESSBURG, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 705

437 N.W.2d 705

17 Media L. Rep. 1389

Donald J. DIESEN, Appellant, v. John HESSBURG, et al., Respondents.

No. C2-88-1345.

Court of Appeals of Minnesota.

March 28, 1989.

Review Granted May 12, 1989.

Syllabus by the Court

1. There may be libel by implication where underlying statements are true or are opinions, when known facts are omitted which would have changed the implication of the article, if a party proves that the printed implication was false and defamatory and it is shown by clear and convincing 2. Where an article is written and printed in a manner that the audience could reasonably infer that it was meant to be a factual news article, the article as a whole is not protected as opinion of the reporter or the newspaper.

evidence that the article was published with reckless disregard as to its falsity.

Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, St. Paul, for appellant.

Thomas R. Thibodeau, Joseph J. Roby, Jr., Johnson, Killen, Thibodeau & Sieler, P.A., Duluth, for respondents.

Heard, considered and decided by SHORT, P.J., and NIERENGARTEN and NORTON, JJ.

OPINION

NORTON, Judge.

This is an appeal from a judgment notwithstanding the verdict (JNOV) granted to respondents John Hessburg and the Duluth News-Tribune in a libel action. The jury had found by special verdict that an article published by respondents was defamatory to appellant Donald Diesen, that the implication of the article was substantially false, that Diesen demonstrated by clear and convincing evidence that respondent published the article with reckless disregard as to the truth of the implication of the article, and that Diesen had proved by clear and convincing evidence that the article was published wilfully, maliciously and with the intent to injure Diesen. The jury awarded Diesen $280,000 in compensatory damages and $500,000 in punitive damages.

The trial court granted the JNOV stating that there can be no action for libel based on false implications arising from a series of true facts and opinions, and alternatively that any implication of the article was protected because it was the mere opinion of the author, the publisher or the article's sources. We reverse.

FACTS

Appellant Donald Diesen was 54 years old at the time the subject article, consisting of three stories (Is justice denied battered women in Carlton County?, County Attorney Donald Diesen Critics say he's not tough on domestic abuse, Justice Denied? The case of Kathy Berglund ), was printed on November 15, 1981 in the Duluth News-Tribune (article). Diesen graduated from the University of Minnesota Law School in 1956 and first became involved in the Carlton County Attorney's office in the summer of 1969. Diesen was appointed Carlton County Attorney in 1970 and thereafter won elections in 1970, 1974 and 1978. He did not run for re-election in 1982, as a result of the subject article.

Respondent John Hessburg was hired as a reporter for respondent Duluth News-Tribune in February 1981. Hessburg voluntarily quit September 30, 1981, after he completed writing the subject article.

Hessburg started working on the article in the spring of 1981. Hessburg began his investigation as a result of a complaint which had been called into the paper about the lack of prosecution of domestic abuse cases in Carlton County. In April 1981, Hessburg met with a group of advocates of the battered women, including Kathy Moore and LuAnn Dietrich of the Duluth's Women's Shelter, and Dale Lucas, attorney for Kathy Berglund, a battered woman. Berglund and Jennifer Greensky, also a battered woman, were also present at this meeting. The advocates and victims brought to Hessburg's attention their claims that there were problems with Carlton County's prosecution of domestic abuse cases.

According to Diesen, the same advocates had met with Diesen in September 1980 in order to pressure Diesen to issue felony charges for an assault that occurred to Kathy Berglund on September 1, 1980. Diesen refused to press felony charges in this matter because Berglund had given a statement to Sheriff Twomey of Carlton County, stating that she could not remember the assailant Melvin Defoe beating her and that she had had six drinks immediately prior to the attack.

In his investigation, Hessburg spoke first with the battered women's advocates and some of the women who had made allegations. After interviewing these people, Hessburg examined every initial complaint report (ICR) on every assault in Carlton County. Eventually, Hessburg reduced the several thousand ICR's to 44 which involved domestic assault. Hessburg developed flow charts which indicated the dispositions of these 44 cases. Hessburg ascertained who had dealt with the women involved in the assaults on their way through the judicial system. However, the article did not state that Diesen had contact with only ten of these cases.

From the outset of his investigation, Hessburg's notes refer to this as "the Diesen probe." In April 1981, Hessburg told Berglund that the story he was writing was on "possible abuses of power by a certain county attorney." In reading Hessburg's notes shortly after he left the paper, Dennis Buster, an editor for the Duluth paper, found that Hessburg had lost his objectivity. After the initial interviews where the people had expressed unfavorable opinions about Donald Diesen, Hessburg set up interviews with Diesen and his supporters.

Hessburg's interview with Diesen lasted 11 1/2 hours. This interview was taped by Hessburg, however, approximately five hours of this interview are not on tape. Diesen alleges that portions of the interview favorable to Diesen were erased or taped over by Hessburg.

Not all of the allegations by the battered women were contained in the article. Specifically, the allegations by Jennifer Greensky were found not to be credible by the editors and Hessburg and, therefore not used in the article. However, a statement made by Greensky was repeated often by Hessburg while interviewing advocates and other battered women while questioning them about Diesen. Greensky had claimed that she had been raped in the early 1970's while only 15 years old, in a car on a deserted road in winter. When Greensky went to Diesen, Diesen allegedly asked her whether this was the first time she had ever spread her legs. Diesen adamantly denied ever saying this, and the editors of the paper also found that this was not true. However, Hessburg never relayed this to people to whom he had reported the statement.

While Hessburg interviewed numerous people who had unfavorable views about Diesen, Hessburg never asked Diesen for any sources who might give an opposing view. Sheriff Twomey and Patrol Officer Randelin were favorable to Diesen and said so to Hessburg. However, both of these people thought Hessburg's questions were misleading, vindictive and begged an answer which Hessburg wanted, which would be unfavorable to Diesen. Editor Buster's notes also indicate that Hessburg was suggesting to subsequent sources the idea of a special panel to probe the way Diesen handled battering cases.

All of Hessburg's material was reviewed by his editors. The editors testified that they independently confirmed Hessburg's information prior to publishing the article. Georgia Swing, city editor, went to the county courthouse to verify the disposition of the files and the information used by Hessburg. On a second visit, Swing was accompanied by Dennis Buster, also a city editor. Buster also spent several hours listening to the tapes Hessburg had made of interviews with witnesses. Afterwards, Buster reported to Larry Fortner, managing editor, that there were no inaccuracies that he was able to find between what was on the tape and what had been written by Hessburg. Fortner testified that the article contained only information that was available through public records or which was attributed to some named source. Thomas Daly, executive editor of the paper in 1981, and John McMillion, publisher of the newspaper in 1981, both testified that they knew of nothing false in the article. However, the editors and the publishers testified that they knew that the implication of the article was that Diesen had committed malfeasance or misfeasance in office in failing to prosecute domestic assaults.

While the underlying facts in the story were true, and the defamatory references to Diesen were opinions of the advocates and battered women, Diesen claims that the whole implication of the article was libelous because facts were intentionally omitted from the article, the juxtaposition of facts within the article created a false implication, and Hessburg's malicious investigative techniques created negative opinions about Diesen.

Significant facts which were not included in the article relate to the assault on Kathy Berglund and its disposition. The article correctly states that Diesen plea bargained the felony assault charge to a misdemeanor. However, the article failed to mention that Kathy Berglund had told the assailant's probation officer that she believed chemical dependency treatment was more appropriate for Melvin Defoe, the assailant. The article also neglected to mention that Diesen had requested jail time for Defoe. The article also failed to mention that Berglund admitted that she was unwilling to go through any court process at that point in time. Buster admitted that he was aware of these omissions prior to publishing the article. By the omission of these facts, the reader is left with the view that even though Berglund was severely assaulted by this man, Diesen did not believe it merited felony prosecution due to several reasons stated as opinions in the article, namely, that he was more concerned with his win-loss record and his own personal view that the criminal forum is not the proper place for domestic disputes.

ISSUES

I. Did the trial court err in granting JNOV, and in holding there could be no defamation by...