Johnson v. Dirkswager
| Decision Date | 15 January 1982 |
| Docket Number | No. 51913,51964.,51913 |
| Parties | Edward JOHNSON, Respondent (51913), Appellant (51964), v. Edward J. DIRKSWAGER, Jr., as Commissioner of the Minnesota Department of Public Welfare, et al., Appellants (51913), Respondents (51964). |
| Court | Minnesota Supreme Court |
Warren Spannaus, Atty. Gen., and David McKenna, Sp. Asst. Atty. Gen., St. Paul, Marshall & Savage and Joseph B. Marshall, Circle Pines, for appellants.
Collins, Buckley, Sauntry & Haugh and Theodore J. Collins, St. Paul, for respondents.
Thomas W. Foley, County Atty., and Stephen F. Befort, Asst. County Atty., St. Paul, for amicus curiae Ramsey County.
Tanick & Heins and Marshall H. Tanick, Minneapolis, for amicus curiae MCLU.
Patricia Hirl, St. Paul, for amicus curiae Newspaper Ass'n.
Norton Armour, Minneapolis, for amicus curiae Mpls. Star & Tribune.
David Donnelly, St. Paul, for amicus curiae Northwest Publications, Inc.
Robert J. Alfton, City Atty., Minneapolis, for amicus curiae City of Minneapolis.
Edward P. Starr, City Atty., David W. Nord and Beryl A. Nord, Asst. City Atty., St. Paul, for amicus curiae City of St. Paul.
Heard, considered and decided by the court en banc.
A jury found that defendant State of Minnesota and its Commissioner of Public Welfare had defamed plaintiff, one of its employees, and awarded damages of $150,000. Defendants appeal from a denial of their motion for judgment notwithstanding the verdict or a new trial. Plaintiff cross-appeals the order reducing his damages to $100,000 by virtue of Minn.Stat. § 3.736 (1980) and finding the commissioner liable only in his official capacity. Finding the defamation was privileged, we reverse and order judgment entered in favor of defendants.
On May 16, 1978, defendant Edward J. Dirkswager, Jr., Commissioner of Public Welfare, had a telephone interview with Eric Black, a reporter with the Minneapolis Tribune. The commissioner told the reporter that plaintiff Edward Johnson had been terminated that day from his position as an assistant group supervisor at the Willmar State Hospital and that the termination was for "sexual improprieties." The next day an article appeared in the Minneapolis Tribune, written by Black, reporting that Johnson and a fellow employee had been fired the day before, that the commissioner had said the firing was for "sexual improprieties" occurring in 1970, but had declined to be more specific; that Johnson denied the allegations; and that Johnson's attorney would request a civil service hearing to refute the charges. The article quoted a state legislator as saying Johnson would not be charged criminally because the statute of limitations had expired.
Johnson did contest his termination. Five months later, after a hearing, Johnson was cleared of all charges and reinstated to his job. This result was affirmed by the state Department of Personnel and the district court and summarily affirmed by this court on January 21, 1981.
Johnson started this lawsuit in December 1978, alleging counts of breach of contract, negligence, defamation and a civil rights action under 42 U.S.C. § 1983 (1981). By special verdict the jury found liability for defamation. It also found, however, that defendants had not acted outside the limits of their lawful authority under Minn.Stat. § 43.24 (1980), so the civil rights claim failed.1
On appeal, defendants raise a multitude of issues and defenses: (1) the commissioner, as a cabinet-level official, had an absolute common-law privilege to make a defamatory statement in connection with informing the public of his official actions; (2) the privilege is absolute not only because of the commissioner's high level position but because the facts of termination were public data which the commissioner, under the Data Privacy Act, was required to make available to the public; (3) in any event, the commissioner had a qualified privilege, that plaintiff Johnson was a "public figure" embroiled in a matter of public interest, so that the requirement of "constitutional malice" — the statement being made with knowledge of its falsity or with reckless disregard of the truth — was not proven; or (4) if the commissioner was not a "public figure," there was no proof of common-law actual malice as a matter of law; and, finally, (5) plaintiff's claim is barred by the state Tort Claims Act, since defendants were engaged in a discretionary function and in exercising due care in the execution of a valid statute, the Data Privacy Act.
We need not discuss all of these issues and their many ramifications. It is enough to dispose of this case that we discuss only the truthfulness of the defamatory statement and the existence of an absolute privilege, particularly in the context of the Data Privacy Act and the Tort Claims Act.
Plaintiff's entire case for defamation hinges on Commissioner Dirkswager's statement to newspaper reporter Black that Edward Johnson had been "terminated for sexual improprieties." For this communication to be actionable, it must both defame and be untrue. "True statements, however disparaging, are not actionable." Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn.1980). Plainly, the communication defames, but is it untrue? We find this threshold question, though not raised by appellants, to be troublesome.
The jury found the communication was not substantially true. It is apparent from the record, however, that notwithstanding the wording of the special verdict question,2 the jury understood it was deciding whether, in fact, Johnson had engaged in the alleged sexual improprieties and not whether, in fact, the reason for termination was sexual improprieties — a fact, of course, which was admitted.3 Both parties called witnesses on the issue of whether or not the sexual misconduct had occurred. Thus the defamation trial became, to some extent, a retrial of the termination proceedings, with the jury knowing that Johnson had been exonerated previously but being told they were not to consider this fact.
There seems to be little authority as to whether truth as a defense goes to the verbal accuracy of the statement (Johnson is terminated for sexual improprieties) or must go to the underlying implication of the statement (Johnson engaged in sexual improprieties; therefore, he is terminated). An English case observes, Lewis v. Daily Telegraph Ltd., 1 Q.B. 340, 374 (1963), Holroyd, Pearce, L.J. (C.A.).
Although the truth defense is a threshold issue which we believe should be noted, we decline to base our decision on this issue.4 The issue has not been raised by appellants nor briefed. We choose, instead, to rest our decision on absolute privilege, the next issue to be discussed.
Considering Dirkswager's communication to be false as well as defaming, defendants first argue that the commissioner is entitled to an absolute privilege to make the communication. Whether an absolute privilege should be extended to public executive officials is a matter of first impression in this state. We conclude an absolute privilege does exist here.5
To discuss this issue properly, we first need to elaborate on the facts. Throughout 1977, as a result of an inquiry by a state legislator, an investigation was being conducted by agents of the Minnesota Bureau of Criminal Apprehension into allegations of patient abuse by staff employees at the Willmar State Hospital. Several employees were involved. As part of the investigation, Johnson was implicated in connection with events that were claimed to have occurred 7 years earlier, in 1970. Indeed, it was learned that those same allegations about Johnson had been the subject of an in-house investigation by hospital officials in 1974. There being no supporting evidence for the allegations, the matter was simply left open, with Johnson to be kept under observation.
The BCA agents interviewed four hospital employees and eleven persons who had been patients at the time of the alleged incidents. Summaries of those interviews were submitted to the county attorney for Kandiyohi County, who concluded that there was sufficient evidence to provide probable cause for criminal charges, but that the statute of limitations had run. The investigation report was forwarded to attorney Barbara Gill of the Attorney General's office, who read the report and then presented it to Commissioner Dirkswager. Dirkswager read the report, discussed it with the Willmar State Hospital administrator, attorney Barbara Gill and others, and also asked his deputy commissioner, James Hiniker, to read it. Hiniker sent a state tort claims officer to talk to the BCA investigators, who reported that the BCA agents considered the former patients making the accusation to be credible. Hiniker recommended to the commissioner that Johnson be terminated.
On the basis of these developments, and after he "worried a lot," Dirkswager decided Johnson should be fired. Although he considered the 1974 in-house investigation which had cleared Johnson, he had misgivings about it, particularly in view of the ineffective manner in which, in Dirkswager's opinion, the hospital administration had handled similar matters in the past. Dirkswager testified that his decision was made because of his concern for the welfare of the patients.
Johnson was first given an opportunity to resign, which he refused. On May 16, 1978, Johnson was given his termination letter.6 Dirkswager, knowing that he would be receiving inquiries from the newspaper reporter, asked attorney Barbara Gill if, under the Data Privacy Act, he had a duty to answer the reporter's questions about the dismissal once Johnson had received the termination letter. Gill advised him that the...
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