Riemers v. Mahar

• Decision Date: 15 May 2008
• Docket Number: No. 20070232.,20070232.
• Citation: 2008 ND 95,748 N.W.2d 714
• Parties: Roland C. RIEMERS, Plaintiff and Appellant v. Rick MAHAR, Defendant and Appellee.
• Court: North Dakota Supreme Court

748 N.W.2d 714

2008 ND 95

Roland C. RIEMERS, Plaintiff and Appellant v. Rick MAHAR, Defendant and Appellee.

No. 20070232.

Supreme Court of North Dakota.

May 15, 2008.

Roland C. Riemers (pro se), Emerado, N.D., plaintiff and appellant, submitted on brief.

Nicholas B. Hall, Hodny Currie Lawyers, Grafton, N.D., for defendant and appellee, submitted on brief.

CROTHERS, Justice.

[¶ 1] Roland Riemers appeals from a summary judgment dismissing his defamation action against Rick Mahar. We conclude Riemers failed to raise genuine issues of material fact about his claim, and we affirm the summary judgment.

I

[¶ 2] The Shared Parenting Initiative was an initiative on the state ballot in the November 2006 general election, which proposed changes to child custody and child support laws. The Family Law Reform Initiative proposed changes to child custody, divorce, domestic violence, and child support laws, but it did not receive enough signatures to be placed on the state ballot for the November 2006 general election. Riemers helped draft the Family Law Reform Initiative and was a proponent of both initiatives.

[¶ 3] Riemers sued Mahar for defamation after Mahar wrote an article published in the Walsh County Record, on September 20, 2006, criticizing the Shared Parenting Initiative and the Family Law Reform Initiative. Mahar's article also included statements about Riemers and his support of the initiatives:

"I have been following with considerable interest the progress of the Shared Parenting Initiative (SPI) and the Family Law Reform Initiative authored by Mitchell Sanderson and Roland Riemers respectively. Voters may recall that Messrs. Riemers and Sanderson ran for North Dakota Governor/Lt. Governor on the Libertarian ticket in the 2004 election. Mr. Riemers, who ran for Governor, and Mr. Sanderson, who ran for Lt. Governor, lost that one having received a paltry one percent of the votes.

. . . .

"I have spent hours and hours on the internet, reading blogs, reading newspaper articles, listening to radio talk shows, reading the initiatives, etc. I've even heard Mr. Sanderson present at the Walsh County Commission meeting on two occasions. The conclusion that I have reached is that neither Mr. Riemers nor Mr. Sanderson have any interest whatsoever in children or families. They are self-absorbed zealots who will stop at nothing to avenge what they perceive to be their ill-treatment by a court system who didn't happen to see things their way. These initiatives are about power, control, and winning at any cost. They are not about families and children.

"The reader can learn all about Mr. Riemers motives by simply going on line, Googling "Roland Riemers Court Case" and then follow the links to the N.D. 2001 Supreme Court ruling and the 2004 N.D. (Riemers v. Peters-Riemers) Supreme Court ruling.... If one reads, for example, the 2004 Supreme Court decision on his appeals and then the Family Law Reform Initiative one will no longer wonder what might have inspired the Initiative. His success at the Supreme Court was similar to his level of success in his bid for Governor. His attitude seems to be `if I do something and it is against the law then the answer is simple — change the law'. Again, this is opinion."

Rick Mahar, Kissing the High Ground Goodbye, Walsh County Record, Sept. 20, 2006. Mahar also criticized both initiatives, argued they would hurt families and the state and said, "Perhaps the system needs to be tweaked a little. It does not, however, need to be demolished. These initiatives are not the answer. They are the products of rage and vengeance and are truly the fruit of the poison tree." The article was submitted to the Associated Press and appeared in various other newspapers throughout the state.

[¶ 4] Riemers publicly supported both initiatives. Riemers wrote an article in support of the Family Law Reform Initiative, published in the Grand Forks Herald on May 17, 2006. He was interviewed for an article about the two initiatives, which was published in the Grand Forks Herald on July 24, 2006. Riemers responded to Mahar's article in a letter published in the Walsh County Record on October 4, 2006, in which he promoted the Shared Parenting Initiative and addressed Mahar's arguments and criticism. Riemers was also a candidate for the United States Senate in 2006 and wrote about his support for the two initiatives in an article about his candidacy, which was published in the Cavalier County Republican on October 30, 2006.

[¶ 5] Mahar moved for summary judgment, arguing his article does not contain defamatory statements about Riemers, the statements in the article are privileged political speech protected from defamation actions by the federal and state constitutions and Riemers is a public figure who must show the alleged defamatory statements were made with malice. In support of his motion, Mahar submitted an affidavit explaining his position, a copy of his article, copies of newspaper articles Riemers authored, copies of the two initiatives, answers to interrogatories from both Riemers and Mahar, and other evidence.

[¶ 6] Riemers opposed the motion for summary judgment. He argued Mahar's motion was lacking in substance, summary judgment is not appropriate in defamation cases, Mahar's article was not privileged communication, Riemers is not a public figure, and Mahar's statements in the article were defamatory and not merely hyperbole. Riemers did not submit any evidence in support of his argument.

[¶ 7] The district court granted Mahar's motion for summary judgment and dismissed the suit. The court considered each statement Riemers claimed was defamatory and concluded the statements either were true or were Mahar's opinion. The court concluded even if Mahar's statements could be considered false, the statements are privileged political speech, Riemers is a public figure and was required to provide evidence the defamatory statements were made with actual malice, Riemers failed to present any evidence of malice, and Mahar did not abuse the privilege extended to his statements. The court also noted that Riemers did not present any evidence Mahar's article caused him to experience hatred, contempt, ridicule or obloquy, that he was shunned or avoided, or that he was injured in his occupation.

II

[¶ 8] Riemers argues the district court erred in accepting Mahar's motion for summary judgment because the motion was defective and "totally lacking in substance." Riemers contends the motion denied him a clear direction about what he needed to respond to because the motion states, "This Motion is based upon the accompanying Memorandum Brief, Affidavits, and Exhibits attached herewith, as well as the record on file." Riemers contends the motion failed to comply with the specificity requirements of the Rules of Civil Procedure.

[¶ 9] Rule 7(b)(1), N.D.R.Civ.P., states that a motion "shall be made in writing, shall state with particularity the grounds therefore, and shall set forth the relief or order sought." However, a motion may be valid even though it fails to meet the particularity requirement on its face, if supporting papers or briefs filed contemporaneous with the motion detail grounds with specificity. Schaan v. Magic City Beverage Co., 2000 ND 71, ¶ 15, 609 N.W.2d 82; Eisenbarth v. Eisenbarth, 91 N.W.2d 186, 188 (N.D.1958).

[¶ 10] While Mahar's motion failed to meet the particularity requirement on its face, his accompanying brief detailed the grounds for the motion with specificity. We conclude the district court did not err in accepting Mahar's motion for summary judgment.

III

[¶ 11] Whether summary judgment was properly granted "is a question of law subject to de novo review." Riemers v. Grand Forks Herald, 2004 ND 192, ¶ 4, 688 N.W.2d 167. "Summary judgment is appropriate if, after viewing the evidence in the light most favorable to the party opposing the motion, there are no genuine issues of material fact or conflicting inferences that can reasonably be drawn from undisputed facts or if the only issues to be resolved are questions of law." Id. We have explained the burden on the parties when there is a motion for summary judgment:

"Although the party seeking summary judgment has the burden of showing that there is no genuine issue of material fact, the party resisting the motion may not simply rely upon the pleadings. Nor may the opposing party rely upon unsupported, conclusory allegations. The resisting party must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact and must, if appropriate, draw the court's attention to relevant evidence in the record by setting out the page and line in depositions or other comparable documents containing testimony or evidence raising an issue of material fact.

"In summary judgment proceedings, neither the trial court nor the appellate court has any obligation, duty, or responsibility to search the record for evidence opposing the motion for summary judgment. The opposing party must also explain the connection between the factual assertions and the legal theories in the case, and cannot leave to the court the chore of divining what facts are relevant or why facts are relevant, let alone material, to the claim for relief."

Fish v. Dockter, 2003 ND 185, ¶ 15, 671 N.W.2d 819 (quoting Anderson v. Meyer Broadcasting Co., 2001 ND 125, ¶ 14, 630 N.W.2d 46).

[¶ 12] Riemers argues the district court erred in concluding that he is a public figure and that he had to prove Mahar's statements were made with malice because Mahar's article never identified Riemers as a political candidate or sponsor of the initiatives and because Mahar was not attacking him as a public figure, and therefore the public figure defamation standard does not apply. He argues the court did not apply North Dakota statutory defamation laws, because North Dakota statutes do not restrict defamation suits against public figures,...