Miller v. Minority Broth. of Fire Protection, 89-1889

• Decision Date: 16 October 1990
• Docket Number: No. 89-1889,89-1889
• Parties: David P. MILLER, Plaintiff-Respondent, v. MINORITY BROTHERHOOD OF FIRE PROTECTION, Bradley Thurman, Issac Hatton, Philip W. James, Edward Brown, Paul Hull, Nathaniel Roberson, Hal C. Allen, Bobbie Webber, Crawford E. Allen, Glen Allen, and Christopher Horton, Defendants-Appellants, City of Milwaukee, Defendant.
• Court: Wisconsin Court of Appeals

Page 690

463 N.W.2d 690

158 Wis.2d 589

David P. MILLER, Plaintiff-Respondent, v. MINORITY BROTHERHOOD OF FIRE PROTECTION, Bradley Thurman,

Issac Hatton, Philip W. James, Edward Brown, Paul Hull,

Nathaniel Roberson, Hal C. Allen, Bobbie Webber, Crawford E.

Allen, Glen Allen, and Christopher Horton, Defendants-Appellants,

City of Milwaukee, Defendant.

No. 89-1889.

Court of Appeals of Wisconsin.

Submitted on Briefs May 3, 1990.

Opinion Released Oct. 16, 1990.

Opinion Filed Oct. 16, 1990.

Bradley Thurman, and Isaac Hatton, Charne, Glassner, Tehan, Clancy & Taitelman, S.C. by James H. Hall, Jr. and Mark M. Leitner, Milwaukee, for defendants-appellants Minority Broth. of Fire Protection.

Grant F. Langley, City Atty. by Scott G. Thomas, Asst. City Atty., Milwaukee, for individual defendants-appellants.

Gutknecht & Gerdes by James C. Gutknecht, Milwaukee, for plaintiff-respondent.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

MOSER, Presiding Judge.

The City of Milwaukee (City), representing eleven firefighters in their individual capacity and the Minority Brotherhood of Fire Protection (Minority Brotherhood), a fraternal organization, and two officers of that organization, petitioned this court for leave to appeal from an order denying summary judgment against Captain David P. Miller's (Captain Miller) lawsuit against them for defamation and conspiracy pursuant to sec. 134.01, Stats.

On April 28, 1987, Captain Miller, one of forty-five-to-fifty fire department captains in the City of Milwaukee, wrote what is referred to in the fire department as a F-105 memo. Such a memo generally comes from an inferior member of the fire department to a superior and usually deals with some form of complaint. The issues raised by F-105 memos are resolved up the chain of command in the fire department. Such a memorandum can be about any form of complaint registered by an inferior against a superior or against working conditions. Captain Miller's F-105, in this instance, expressed concern for the deteriorating morale and discipline at Engine House 18 because of transfer trends which increased the number of minority firefighters.

Captain Miller discussed this F-105 memo with his associate, Captain Reincke. As an outcome of this discussion, Captain Miller intended to redraft the memo. He placed the memo into an envelope, sealed it and put the envelope inside a green shift officer's work record and timecard file. Captain Miller then left on vacation and when he returned two days later to pick up his paycheck, he was informed that the rough draft of his memo had been circulated through Engine House 18. On June 9, 1987, he was informed that a number of letters of complaint had been filed against him with the fire department administration, who had forwarded copies to the Milwaukee Police and Fire Commission and the city attorney's office.

Copies of the published F-105 were circulated to the Minority Brotherhood. One function of the Minority Brotherhood is the gathering of information regarding racial injustices in the fire department and taking action to rectify those injustices. Captain Miller's F-105 precipitated a letter prepared by Bradley Thurman and Issac Hatton, officers of the Brotherhood, to the chief of the fire department and the Milwaukee Fire and Police Commission. The letter excoriated Captain Miller for his "venomous and biased attitudes" indicating his dislike for minorities, claiming his actions were "unprofessional to an officer" and not in the best interests of Milwaukee.

It concluded that immediate steps should be taken to rescind his appointment. Similar letters were written and forwarded by nine individual firefighters who may or may not have been members of the brotherhood.

Captain Miller sued the Minority Brotherhood, the two officers of the Minority Brotherhood, and the other letter writers individually, claiming that through their letters they knowingly, willfully, wantonly and maliciously, made false, libelous, slanderous and defamatory interpretations of his F-105 memo for the purpose of permanently damaging his employment record and thereby damaging him economically. Captain Miller also sued the City in its capacity as the employer of the individual defendants who wrote the alleged defamatory letters. Under an agency theory, he claimed that whoever stole his F-105 memo and circulated it was acting for the City in violation of his privacy. He also sued the City for negligently not protecting the privacy of his sealed, unfinished and undelivered F-105. Captain Miller further sued all parties named under a conspiracy claim pursuant to sec. 134.01, Stats. The latter claim is not part of this appeal and will therefore not be addressed.

The City answered the complaint and affirmatively alleged immunity from liability for intentional torts of its employees. Furthermore, the City stated that the other claims alleged against it failed to state causes of action, and that any injuries or damages suffered by Captain Miller were caused by his wrongful conduct and not by the City. The Minority Brotherhood and the individual firefighters answered the claim and affirmatively alleged that the complaint failed to state a claim for which relief could be granted in that the alleged defamatory statements were opinions of the individuals' privileged communications to an employer, the statements were within the rights of the Brotherhood and the individual defendants to petition government and elected officials, that the statements were true, and that the injury and the damage Captain Miller claims were caused by his wrongful conduct.

The Minority Brotherhood and its officers Thurman and Hatton, subsequently moved for summary judgment pursuant to sec. 802.08(2), Stats., claiming that the words used in each letter were conditionally privileged under Wisconsin common law. Furthermore, they contended that Captain Miller could not prove the necessary malice to maintain the suit against them, nor could he prove that the words used were false, and, finally, that the words used were protected under the first amendment to the United States Constitution and Wisconsin common law. The City also moved for summary judgment on behalf of itself and the individual firefighters on the basis that the letters written by the individual defendants were conditionally privileged communications, and argued that the City was immune from liability for the first and second claims because they alleged intentional torts. Captain Miller opposed both motions and sought summary judgment of his claims pursuant to sec. 802.08(6), Stats.

The trial court granted summary judgment in favor of the City on all claims against it. We note this part of the trial court's summary judgment order is not appealed. The trial court denied the Minority Brotherhood's and the individual firefighters' summary judgment motions on the defamation claim. It held that Captain Miller was neither a public official nor a public figure. Therefore, he was not required to show actual malice in order to sue for damages from these defendants for the claimed defamatory and libelous statements. The trial court further held that the written statements were not conditionally privileged, and were not expressions of opinion. After the trial court's order was entered, the Minority Brotherhood and the City, on behalf of individual firefighter/defendants, filed a timely petition for leave to appeal which we granted.

The issues on this appeal are whether Captain Miller is a public official, whether those same statements were conditionally privileged under Wisconsin common law, and whether the statements made in the Minority Brotherhood's and the individual firefighters' letters to the fire chief and the Milwaukee Fire and Police Commission

were constitutionally protected free speech under the federal and state constitutions. We hold that the trial court erred in determining that Captain Miller was not a public official, and that those opinions expressed in the defendants' letters were not conditionally privileged under the common law of Wisconsin. In that the resolution of these issues disposes of this case, we need not address the constitutional issue of whether the appellants' speech was constitutionally protected. ¹

SUMMARY JUDGMENT

The purpose of summary judgment is to determine whether a dispute can be resolved without a trial. ² Appellate and trial courts must use the same methodology in applying summary judgment. That is:

Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint ... states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense which would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.

Summary judgment methodology prohibits the trial court from deciding an issue of fact. The court determines only whether a factual issue exists, resolving doubts in that regard against the party moving for summary judgment. ³

PUBLIC OFFICIAL

Neither criminal nor civil libel laws of this state may be used to infringe on free speech which is guaranteed by the first amendment and incorporated with respect to the states through the fourteenth amendment to the United States Constitution. ⁴ The United States Supreme Court has held that a public...