Hirman v. Rogers

• Decision Date: 12 August 1977
• Docket Number: No. 46760,46760
• Citation: 257 N.W.2d 563
• Parties: Michael L. HIRMAN, et al., Respondents, v. John ROGERS, Appellant, County of Meeker, Appellant, Norman Olson, Defendant.
• Court: Minnesota Supreme Court

Page 563

257 N.W.2d 563

Michael L. HIRMAN, et al., Respondents, v. John ROGERS, Appellant County of Meeker, Appellant Norman Olson, Defendant.

No. 46760.

Supreme Court of Minnesota.

Aug. 12, 1977.

Syllabus by the Court

Where plaintiffs in a defamation action are public officials, they may recover damages for a defamatory statement relating to official conduct only if the statement was made with actual malice, that is, with knowledge of the falsity of the statement or with a reckless disregard of whether the statement was false or not. The evidence in this case was insufficient as a matter of law to justify submitting to a jury the question of whether certain statements made by John Rogers, sheriff of Meeker County, were made with actual malice.

Hulstrand, Anderson & Larson, and Ronald C. Anderson, Willmar, John H. Bradshaw, Eden Valley, for Rogers.

Thomas D. Nagel, County Atty., Litchfield, for County of Meeker.

William B. Haas, Hutchinson, for respondents.

Heard before PETERSON, MacLAUGHLIN, and PLUNKETT, JJ., and considered and decided by the court en banc.

MacLAUGHLIN, Justice.

The issue in this case is whether as a matter of law the evidence was insufficient to justify submitting to a jury the question of whether certain statements made by defendant John Rogers, sheriff of Meeker County, were made with actual malice, that is, with knowledge of their falsity or with a reckless disregard of whether the statements were false or not. Because we hold the evidence was insufficient, we reverse.

A jury found two statements made by Rogers were false, libelous, and made with actual malice. The jury awarded $3,000 in compensatory and punitive damages to each of three plaintiffs who had alleged defamation. This appeal followed denial of an alternative motion for judgment notwithstanding the verdict or for a new trial.

At the time of the incident out of which this action arose, plaintiff Michael Hirman, a former deputy sheriff of Meeker County, and plaintiff Charles Schrum were employed as police officers by the city of Litchfield. Plaintiff Ruth Johnson was a deputy sheriff and radio dispatcher who worked in the Meeker County sheriff's office.

During 1974, Rogers became aware of security problems in the sheriff's office because of the removal of certain records from the premises and the disappearance of daily reports and log sheets. The Minnesota Bureau of Criminal Apprehension was contacted in an effort to tighten office security and, pursuant to their recommendations, Rogers placed all of the confidential files in an area within his private office, and behind doors kept locked during the evening hours. Further, Rogers assigned a new deputy, Mary Kalkbrenner, to the task of organizing and maintaining the files.

Rogers became alarmed when he arrived for work one morning and was informed by Kalkbrenner that the locked door leading to the secured area had been opened. In September, Rogers had the locks on this door changed but subsequently there was evidence that the new lock assembly had been tampered with and the striker plate bent. A nail was then placed in the door jamb to prevent insertion of any object which might trip the latch on the locked door.

As Rogers became increasingly concerned about office security, he decided to conduct surveillance in an effort to discover who had attempted to enter the secured area. On November 3, Rogers went out of town but directed his deputy, Kalkbrenner, to conceal herself behind the locked door for observation of activity in that part of the sheriff's office located outside of the secured area. From approximately 4 p. m. on the afternoon of November 3 until almost 4 a. m. on the morning of November 4, Kalkbrenner hid behind the locked door with a tape recorder, a pencil and notepad, and a small pocket mirror with which she could observe part of the outer office through the space beneath the door.

At midnight on November 4, deputy sheriff Ruth Johnson came on duty as a radio dispatcher, unaware of Kalkbrenner's presence only a few feet away. Subsequently, the police department in the nearby city of Watkins called Johnson, requesting use of the Meeker County Breathalyzer machine to check the alcohol levels of three suspects in custody. Johnson called Hirman and Schrum, on duty with the Litchfield Police Department, and asked them to administer the tests. When Hirman and Schrum arrived at the sheriff's office they found the Breathalyzer machine was not working properly and advised the Watkins police to take the suspects to the local hospital for blood testing.

Shortly thereafter, Hirman and Schrum went to the locked door leading to the corridor where Kalkbrenner was hiding, and the door was then shaken vigorously for almost 10 seconds. Kalkbrenner overheard Hirman explain to Schrum that he could open the locked door by inserting a credit card or driver's license between the door and the casing. Hirman saw that a nail had been placed in the door to prevent tripping the latch and told Schrum that, except for the nail, the card could be inserted. Schrum stated that they would "have to work on that." Kalkbrenner, from her position behind the locked door, recorded the conversation and sounds of door rattling and took notes of the activity. Soon thereafter, Hirman and Schrum left the sheriff's office and Kalkbrenner ceased her surveillance.

After Rogers' return that afternoon, Kalkbrenner told him of the events of the previous night and Rogers heard the tape recording and read Kalkbrenner's notes. The following day, November 5, Rogers summoned Norman Olson, a county commissioner, Vernon Madson, mayor of Litchfield, and George Fenner, Litchfield chief of police, to hear the tape recording. After interviewing Ruth Johnson, Rogers discharged her from her position as deputy sheriff.

Olson and Rogers agreed to withhold any information about the incident pending the election returns that night. At 2 a. m. on November 6, after the returns were in and Rogers had been reelected as sheriff, Rogers issued a written press release to the Willmar West Central Daily Tribune. The newspaper's report stated:

"Sheriff's Office Break-in Foiled At Litchfield"

"LITCHFIELD Meeker County Sheriff John Rogers issued a prepared statement about 2 a. m. today (Wednesday), noting that, 'An attempt at an illegal entry was made at approximately 2 a. m. on Nov. 4, into the private offices of the Meeker County Sheriff by two officers of the Litchfield Police Department with the sheriff's office dispatcher present.

'At this time, the dispatcher, whose employment has been terminated today, has admitted to being present with the two police officers at the time of the attempted illegal entry.' "

Later that day, during a telephone interview with radio station KLFD, Rogers repeated in substance the statement published in the press release:

"Q. Monday morning you had a break-in over there? (To which John Rogers replied), A. Attempted illegal entry is what it was. Q. So, it was attempted illegal entry, can you give us the details on it? A. There is not much I can say at this time. There is going to be an investigation on this. There was one of our employees here that was involved, a dispatcher, and she is no longer with us, she was terminated, well, in fact, yesterday. Q. This was two members of the local police department? A. Right. And, this information was brought to the attention of the Mayor and also the Chief of Police and I am in no position to tell them what to do. It is up to them to take care of their men; I feel some of this stuff has been going on in the past, and I am just getting sick of it and something is going to have to be done about it. Q. This would obviously be some sort of serious offense? A. This is right. I don't know what the intentions were or what the deal is, but there is going to be an investigation as far as I am concerned."

These two statements were the sole basis of plaintiffs' claims against Rogers.

After several meetings between Litchfield and Meeker County officials, Robert LaMettry of the Minnesota Bureau of Criminal Apprehension was called in by the county attorney's office to conduct an investigation. A grand jury was convened to...