Diesen v. Hessburg, C2-88-1345
| Decision Date | 11 May 1990 |
| Docket Number | No. C2-88-1345,C2-88-1345 |
| Citation | 455 N.W.2d 446 |
| Parties | 17 Media L. Rep. 1849 Donald J. DIESEN, Respondent, v. John HESSBURG, et al., Petitioners, Appellants. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. An allegedly false implication arising out of true statements is generally not actionable in defamation by a public official plaintiff against a media defendant.
2. The record failed to establish actual malice with convincing clarity where media appellants verified sources, complied with journalism standards for reporting and editing, and did not publish the speech with reckless disregard for its truth.
Thomas R. Thibodeau, Joseph J. Roby, Jr., and Sally L. Sjogren, Johnson, Killen, Thibodeau & Sieler, P.A., Duluth, for appellants.
Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, St. Paul, for respondent.
Mark R. Anfinson, Minneapolis, for amicus curiae, Minnesota News Paper Ass'n.
Heard, considered and decided by the court en banc.
On November 15, 1981, the Duluth News-Tribune published three articles concerning battered women that were critical of the job performance of the Carlton County Attorney, Donald Diesen, in prosecuting domestic abuse. Diesen sued the News-Tribune, its executive editor, Thomas Daly, and the reporter who wrote the articles, John Hessburg, for libel. The jury found by special verdict the articles' implication was substantially false, appellants published the articles with actual malice, and awarded Diesen $285,000 in compensatory and $500,000 in punitive damages. The trial court granted appellants' motion for judgment notwithstanding the verdict (JNOV), holding a libel action by a public official cannot be based on a false implication arising from true facts, and any implication from the articles was constitutionally protected opinion. A Minnesota Court of Appeals panel reversed and reinstated the jury's verdict. Diesen v. Hessburg, 437 N.W.2d 705, 712 (Minn.App.1989). We reverse.
In the spring of 1981, John Hessburg, a reporter for the Duluth News-Tribune, was assigned to investigate a complaint received by the newspaper that Carlton County was lenient in prosecuting men who battered women. Hessburg met with victims of domestic abuse and advocates for battered women, examined Initial Complaint Reports (ICRs) in Carlton County, and developed flow charts detailing the dispositions of the 44 ICRs that involved domestic assaults. Hessburg interviewed Donald Diesen, who was then Carlton County Attorney, as well as other law enforcement and judicial officials, and several local attorneys. From the outset, Hessburg referred to the investigation as "the Diesen probe." Diesen and the Duluth News-Tribune exchanged a series of correspondence regarding the investigation. Diesen informed the newspaper that Hessburg was making false accusations about him, asked to meet with someone from the paper other than Hessburg, and requested a transcript of his interview with Hessburg. These requests were denied in accordance with the Duluth News-Tribune's policy and consistent with standard journalism practice.
Two Duluth News-Tribune city editors verified the file dispositions and information used by Hessburg. One editor also reviewed tapes of Hessburg's interviews. Although this review indicated Hessburg asked leading questions and had become "deeply, emotionally involved in" the investigation, the editor could find no inconsistencies between the interviews and what Hessburg had written. The News-Tribune decided not to publish articles concerning two battered women because they could not be independently confirmed. The News-Tribune's attorney reviewed the articles prior to publication and opined the material was not libelous because "[t]he material appears to be well documented and well within the area of permitted criticism of the court system and those who run it." The three articles that appeared in the Duluth News-Tribune on Sunday, November 15, 1981 were: Is justice denied battered women in Carlton County?; Justice denied? The case of Kathy Berglund; and County Attorney Donald Diesen: Critics say he's not tough on domestic abuse. Diesen's demand for a retraction was denied by the News-Tribune. Although Diesen was defeated in the 1982 election for Carlton County Attorney, the articles were not used in the campaign.
Diesen brought a libel action against Hessburg, Daly, and the Duluth News-Tribune (collectively "Newspaper"), alleging the articles defamed him. Appellants sought summary judgment as to those portions of the articles admitted by Diesen in his deposition to be favorable, balanced, true or opinion. The trial court denied the motion and held Diesen could proceed under the implication theory. Appellants' second summary judgment motion, which contended the absence of any evidence tending to show actual malice, was denied. A third summary judgment motion, arguing the trial court applied an incorrect summary judgment standard regarding actual malice, was also denied. Appellants then brought a motion in limine to strike those portions of the articles admitted by Diesen not to be false or libelous, which was denied.
Several of the victims, battered women's advocates and attorneys testified at trial the articles quoted them or reflected their stories accurately. Supporters of Diesen, such as Sheriff Twomey and Sergeant Randelin, also testified that quotations attributed to them in the articles were fair and accurate. At trial Diesen answered, for example, "true," "opinion," "O.K." or "fair," in response to an extensive, paragraph by paragraph cross-examination of the published articles. While the editors and publisher acknowledged the articles impliedly charged Diesen with malfeasance or misfeasance, they also testified to their belief the articles were true. The only expert witness called, Journalism Professor Ralph Holsinger of Indiana University, testified the newspaper did not violate any journalism standards in reporting, editing or publishing the articles.
After Diesen rested, appellants moved for a directed verdict, which the trial court denied. The court also denied appellants' motion to prohibit Diesen's punitive damages claim. At the close of all the evidence, appellants again moved for a directed verdict, to which the trial court responded "The Court would be inclined to either grant a judgment notwithstanding the verdict in favor of the defendant, or * * * may upon receipt of an unfavorable verdict to the defendant, grant the [directed verdict] motion that has now been requested by the defendant."
The trial court held as a matter of law that all statements in the articles were true and so instructed the jury. By special verdict, the jury found:
[T]he implication of the articles published by Defendants [was] substantially false * * *
Plaintiff [did not] demonstrate by clear and convincing evidence that the Defendants knew that the implication of the articles was substantially false * * *
Plaintiff prove[d] by clear and convincing evidence that the Defendants published the articles with reckless disregard as to the truth or falsity of the implication of said articles.
The jury then awarded Diesen $285,000 in compensatory damages and $500,000 in punitive damages. Appellants moved the trial court for JNOV or a new trial. The trial court granted JNOV, ruling that the alleged implication was too vague to be actionable; "[t]here can be no libel by innuendo if the challenged communication is true and concerns public officers and public affairs even though a false implication may reasonably be drawn"; and "the implication arising from the articles" was constitutionally protected opinion. Diesen appealed.
A Minnesota Court of Appeals panel reversed and reinstated the jury's verdict, holding known facts were omitted from the articles that created a false implication; the record supported the finding of actual malice; and the statements implying Diesen's malfeasance or misfeasance were not constitutionally protected opinion. Diesen v. Hessburg, 437 N.W.2d 705, 710-12 (Minn.App.1989). We granted further review to Hessburg, Daly and the Duluth News-Tribune and now reverse.
Granting a JNOV is a question of law subject to de novo review. See Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn.1979). Essentially we are asked here to recognize a legal theory: whether a public official plaintiff may bring a libel by implication action against a media defendant, which is a question of law. See W. Prosser & W. Keeton, The Law of Torts Sec. 3, at 18-19 (5th ed. 1984) (hereinafter "Law of Torts "). Thus, we conduct an independent review of the record before us. Appellants Hessburg, Daly and the Duluth News-Tribune urge us to reject the libel by implication theory because it allows a plaintiff to avoid proving the falsity of alleged defamatory statements. Generally, a plaintiff must prove publication of a false and defamatory statement to prevail in a libel action, with truth being an affirmative defense to such a claim. Id. Sec. 116, at 839. Here, however, the trial court found the statements in the articles to be true as a matter of law. Respondent Diesen argues the articles are actionable because their implication, Diesen's misfeasance or malfeasance regarding prosecution of domestic abuse, was false.
The jury found "the implication of the articles published by Defendants [was] substantially false." The court of appeals panel concurred due to the following omissions in the Berglund article:
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...
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