Peterson v. City of Mitchell
| Decision Date | 18 March 1993 |
| Docket Number | No. 18016,18016 |
| Citation | 499 N.W.2d 911 |
| Parties | Tim PETERSON, Plaintiff and Appellant, v. CITY OF MITCHELL, South Dakota, a municipal corporation; Douglas Kirkus, an individual; and Dennis Kaemingk, an individual, Defendants and Appellees. . Considered on Briefs |
| Court | South Dakota Supreme Court |
James D. Taylor of Taylor & Miskimins, Mitchell, for plaintiff and appellant.
Michael J. Schaffer and Marie Hovland of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellees.
Tim Peterson (Peterson) appeals a summary judgment for the City of Mitchell, Douglas Kirkus (Kirkus) and Dennis Kaemingk (Kaemingk) in a defamation action stemming from an erroneous press release issued by the Mitchell Police Department. We affirm.
In 1989, Peterson was a student at a vocational technical school in Mitchell, South Dakota. He also worked at a local Kmart Store. During the time he resided in Mitchell, Peterson became acquainted with an individual named Mike Stauffacher. At approximately 4:00 p.m. on January 19, 1989, Peterson was arrested by the Mitchell Police Department as an accessory to the offense of intentional damage to property. The arrest was related to an incident in which Peterson had been in Mike Stauffacher's company when Stauffacher used a BB gun to shoot a window out of an office building. 1
After the arrest, Peterson was taken to the county courthouse in Mitchell for questioning. Peterson was also given a subpoena to appear before the county grand jury on January 20, 1989. The grand jury did not indict Peterson and, the state's attorney dismissed the charges against him on January 23, 1989.
Kaemingk was the captain of detectives for the Mitchell Police Department and was on vacation the week of January 16 to January 23, 1989. When Kaemingk returned on January 23, Kirkus, the police chief, instructed him to put together a press release and advise the media on the arrests that had been made in connection with the series of thefts and vandalisms that had been going on in Mitchell during the previous six or seven months. On January 24, Kaemingk met with the arresting officers to discuss the arrests. Based on the information obtained from the officers, Kaemingk prepared the following news release:
REFERENCE TO BURGLARIES, THEFTS AND VANDALISMS.
THE MITCHELL POLICE DEPT. HAS CLEARED UP THE FOLLOWING BURGLARIES, THEFTS & VANDALISMS.
73188 Moonlight Bar
83188 Moonlight Bar $1,500
71388 Spa 80 150
6 vehicle burglaries 5,000
72388 Thefts of Flags 1,000.
123088 Theft of tires 400.
Vandalisms
123188 State Theater 150.
11989 Larson Liq. 150.
121288 NWPS 300.
-------
$8,625.
Arrested were:
Mike Stauffacher 22 y.o.a. 3101/2 N. Main
Jason Vining 18 y.o.a. 1401 S. Main # 47
Tim Peterson 22 y.o.a. Mitchell, S.D.
Investigation is continuing and other warrents [sic] are pending.
The Mitchell Police Dept. has recovered to date approx. $2,400.
The people who were arrest[ed] were indicted by a Davison County Grand Jury.
Daily Rep. 5516
KMIT 9667 D. Kaemingk, Capt.
KORN/KQRN 1490 [signed]
(emphasis added).
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At the time Kaemingk prepared the press release, he was unaware that Peterson was not indicted by the grand jury. He called KMIT and KORN/KQRN radio stations and gave them the press release. Based upon that release, KORN/Q107 radio of Mitchell broadcast the following news story at 10:05 a.m., 12:05 p.m. and 1:05 p.m. on January 24:
TWENTY-TWO-YEAR-OLD TIM PETERSON OF MITCHELL HAS BEEN INDICTED BY A DAVISON COUNTY GRAND JURY ON CHARGES OF BURGLARY, THEFT AND VANDALISM.
THE INCIDENTS INVOLVING HIM ALLEGEDLY TOOK PLACE BETWEEN JULY AND DECEMBER OF LAST YEAR AND RESULTED IN PROPERTY LOSS OR PROPERTY DAMAGE OF MORE THAN EIGHT-THOUSAND-DOLLARS.
Some employees of the Mitchell Kmart informed the manager that they had heard the radio report that Peterson had been indicted by the grand jury. The manager knew that Peterson had been arrested but Peterson had informed the manager that the charges were dropped. The manager contacted the Mitchell Police Department and spoke to Kaemingk who confirmed the radio reports. However, Kaemingk did tell the manager he would call him back.
After the call from the Kmart manager, Kaemingk contacted the arresting officer who was also unaware that the charges against Peterson had been dropped. Kaemingk next contacted the state's attorney's office and was informed by the state's attorney that he had dismissed the charges against Peterson and that the grand jury did not indict Peterson. On the advice of the state's attorney, Kaemingk immediately contacted KMIT and KORN/KQRN radio stations at about 3:00 p.m. Kaemingk retracted the statement that Peterson had been indicted and informed both stations that the charges against Peterson had been dismissed. Based upon Kaemingk's retraction, KORN/Q107 radio broadcast the following corrective news story the remainder of the day on January 24:
MITCHELL LAW ENFORCEMENT OFFICIALS HAVE NOTIFIED KORN NEWS THAT INFORMATION PROVIDED TO THE RADIO STATION EARLIER TODAY CONCERNING A GRAND JURY INDICTMENT WAS INCORRECT.
THE AUTHORITIES HAD INFORMED KORN OF GRAND JURY ACTION AGAINST 22-YEAR-OLD TIM PETERSON OF MITCHELL. THAT INFORMATION WAS INCORRECT.
ALL CHARGES AGAINST 22-YEAR-OLD TIM PETERSON OF MITCHELL WERE DISMISSED AND NO ACTION WAS TAKEN AGAINST HIM BY THE GRAND JURY.
After calling the radio stations, Kaemingk phoned the Kmart manager and apologized, telling him that the state's attorney had dismissed the charges and that the police department had not been aware of the dismissal. Kaemingk also asked the manager to have Peterson call him when he got to work that day. Peterson called Kaemingk at about 4:45 p.m. Kaemingk apologized for the misunderstanding and told him that the police department was not advised that the charges against him had been dismissed.
On July 17, 1989, Peterson caused the City of Mitchell, Kirkus and Kaemingk to be served with a summons and complaint for defamation. The three defendants filed a joint answer on August 16, 1989. The answer asserted that the three defendants had acted in good faith and without malice toward Peterson and that they had operated under a reasonable and honest belief that their publication of the information concerning Peterson was true.
On January 23, 1992, Peterson filed a motion for partial summary judgment on the issue of liability. On March 26, 1992, the City of Mitchell, Kirkus and Kaemingk filed their own motion for summary judgment. The motions were heard on May 11, 1992. On May 20, the circuit court entered its order granting the defense motion for summary judgment. The same day, the circuit court entered a summary judgment for all three defendants and dismissed Peterson's complaint with prejudice. Peterson appeals.
The standards for reviewing a summary judgment are well established:
Summary judgment proceedings are not a substitute for trial and the remedy is authorized only when the movant is entitled to judgment as a matter of law because there are no issues of material fact. The moving party has the burden to clearly show that no genuine issues of material fact exist. The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party opposing a motion for summary judgment must present specific facts which demonstrate the existence of genuine, material issues for trial; mere allegations are not sufficient to preclude summary judgment. Finally, on appeal, affirmance of a summary judgment is proper if there exits any basis which would support the trial court's ruling.
Mackintosh v. Carter, 451 N.W.2d 285, 286 (S.D.1990) (citations omitted).
The circuit court determined that the press release issued by Kaemingk was subject to a qualified privilege necessitating a showing that the release was issued with malice in order to sustain a defamation action. The circuit court further determined that Peterson had failed in any showing of malice sufficient to overcome the qualified privilege. Accordingly, the circuit court granted the defense motion for summary judgment. Peterson contends that the circuit court erred in ruling that malice must be shown by a private individual in a defamation action in order to overcome any qualified privilege enjoyed by law enforcement officials in issuing press releases. He asserts that the negligent and reckless act of Kaemingk in failing to do minimal research and verify issuance of the indictment subjects all three defendants to liability for defamation. We disagree.
The facts of this matter are relatively undisputed. The initial argument centers on the existence of any "privilege" protecting the defendants from liability for defamation flowing from issuance of the press release. Questions on the existence of any such privilege are for the court and, therefore, are freely reviewable. Bego v. Gordon, 407 N.W.2d 801 (S.D.1987).
Defamation is either libel or slander. SDCL 20-11-2. Both libel and slander are statutorily defined as "unprivileged" publications. SDCL 20-11-3, 20-11-4. Thus, if a communication is "privileged," it cannot constitute defamation of an individual. SDCL 20-11-5 defines those communications which are considered "privileged" and therefore outside the scope of the definitions of libel or slander. The statute provides:
A privileged communication is one made:
(1) In the proper discharge of an official duty;
(2) In any...
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