Smith v. Humane Soc'y of the U.S.

• Decision Date: 25 April 2017
• Docket Number: No. SC 95175,SC 95175
• Citation: 519 S.W.3d 789
• Parties: Mary Ann SMITH, d/b/a Smith's Kennel, Appellant, v. The HUMANE SOCIETY OF the UNITED STATES and Missourians for the Protection of Dogs, Respondents.
• Court: Missouri Supreme Court

519 S.W.3d 789

Mary Ann SMITH, d/b/a Smith's Kennel, Appellant,

v.The HUMANE SOCIETY OF the UNITED STATES and Missourians for the Protection of Dogs, Respondents.

No. SC 95175

Supreme Court of Missouri, en banc.

Opinion issued April 25, 2017

Rehearing Denied June 27, 2017

Stephen F. Gaunt, David L. Steelman, Steelman, Gaunt & Horsfield, Rolla, for Appellant.

Bernard J. Rhodes, Lathrop & Gage LLP, Kansas City, Bryan O. Wade, Ginger K. Gooch, Husch Blackwell LLP, Springfield, for Respondents.

Patricia Breckenridge, chief justice

Mary Ann Smith filed a petition against the Humane Society of the United States ("HSUS") and Missourians for the Protection of Dogs, alleging various statements made in documents related to the ballot initiative, the "Puppy Mill Cruelty Prevention Act," were defamatory and placed her in a false light. Specifically, Ms. Smith alleged the specific statements were defamatory because they falsely stated or implied her kennel was one of the worst "puppy mills" in Missouri, according to the research done by HSUS, had "atrocious" and "unconscionable" state and federal animal welfare violations, and had a variety of other specific animal welfare violations. Ms. Smith further alleged the statements placed her in a false light by misrepresenting the activities and conduct of both her and her kennel and by associating her kennel with those that had more severe animal welfare violations.

HSUS moved to dismiss, contending Ms. Smith could not maintain her defamation claims because the statements in the documents were "absolutely privileged opinions," because "ratings, rankings and grades are inherently subjective," and because Ms. Smith failed to plead any facts cognizable under a false light cause of action. Missourians for the Protection of Dogs joined the motion to dismiss filed by HSUS and further contended the claims against it should be dismissed because none of the statements in the various documents were attributable to them. The circuit court dismissed the petition on the motion filed by HSUS "for the reasons set forth in [d]efendant's motion." The circuit court did not rule on the separate ground for dismissal offered by Missourians for the Protection of Dogs.

Ms. Smith appeals, arguing that there is no absolute privilege for opinions and that she pleaded facts that, taken as true, entitled her to relief on her defamation and false light claims. Because none of the statements pleaded in the defamation claims were actionable as a matter of law and because she did not plead any facts cognizable in a false light claim, the circuit court did not err in dismissing the petition. The circuit court's judgment is affirmed.

Factual and Procedural Background

On November 2, 2010, Missouri citizens were slated to vote on the ballot-initiative Proposition B, the "Puppy Mill Cruelty Prevention Act," advocated for by the Humane Society of Missouri and Missourians for the Protection of Dogs.¹ To urge voters to support the ballot initiative, on October 5, 2010, HSUS published a 27–page report titled "Missouri's Dirty Dozen: A report on some of the worst puppy mills in Missouri," as well as a four-page summary of the report. Both were paid for by Missourians for the Protection of Dogs. In conjunction with these reports, Missourians for the Protection of Dogs issued a news release and HSUS Chief Executive Officer Wayne Pacelle authored a short article that was circulated to e-mail subscribers of his blog.

In the introduction of the Dirty Dozen report, HSUS explained the purpose and methodology of the report:

Researchers at The Humane Society of the United States (HSUS) have spent weeks poring over state and federal inspection reports, investigators' photographs, and enforcement records received via the Freedom of Information Act to compile a list of some of the worst puppy mills in Missouri, known as "Missouri's Dirty Dozen."

The purpose of the report is to demonstrate current problems that could be addressed by the passage of Proposition B .... Under Proposition B, the Puppy Mill Cruelty Prevention Act, many of these dealers' horrific violations would be backed by stronger enforcement opportunities.

All of the puppy mills on the Dirty Dozen list are licensed by the USDA, the state, or both .... Some sell puppies to pet stores and others over the Internet. One thing they have in common is atrocious violations of basic humane standards for the dogs in their care.

HSUS also explained how it selected the individual kennels included in the Dirty Dozen report:

Missouri's Dirty Dozen were selected as examples of some of the worst licensed kennels in the state, based upon the number and severity of state and/or federal animal welfare violations. Availability of photographs to verify the conditions was also a factor in some cases.

Some of the violations described in federal and state kennel inspection reports include thin-coated breeds like Italian greyhounds shivering in the cold in temperatures as low as 9–degrees, dogs with open oozing or bleeding sores, underweight dogs with their entire skeletal structures showing, and sick or dying puppies who had not been treated by a vet.

One kennel made the list because it noted on a proposed USDA program of veterinary care that the owner intended to dispose of unwanted dogs "by clubbing the dogs" ....

The Dirty Dozen report then stated that Proposition B would address "many of these dealers' horrific violations" by creating "stronger enforcement" and more protections.

Following this introduction, the Dirty Dozen report included specific information about 12 kennels under the heading "The Dirty Dozen" and eight kennels under the heading "Dishonorable Mentions." The kennels were not numerically ranked, and no information was included regarding the order of entries. The entry for each kennel included the kennel's name, the owner or owners of the kennel, the kennel's current state or federal licenses, and information summarizing and quoting various animal welfare violations.

The Dirty Dozen report included Ms. Smith's kennel as one of the "Dirty Dozen." Her kennel was the sixth kennel on the list of 12. The entry read:

A Decade of Problems

Mary Ann Smith—Smith's Kennel

•—Salem, MO

•—USDA license: 43–A–2296—USDA licensed from Aug. 1996 through August 2011

•—MDA license #: 3258—MDA licensed through 2010

Smith's Kennel has a history of repeat USDA violations stretching back more than a decade, including citations for unsanitary conditions; dogs exposed to below-freezing temperatures or excessive heat without adequate shelter from the weather; dogs without enough cage space to turn and move around freely; pest and rodent infestations; injured and bleeding dogs, dogs with loose, bloody stools who had not been treated by a vet, and much more.

The entry also included direct quotations from the inspection reports. One or more dogs in her kennel had been reported as having cherry eye, interdigital cysts, extremely long toenails, bloody feces, green matter in their eyes, and hair loss. It was further reported that her outdoor facilities had little bedding for the dogs even during freezing temperatures. A 2008 inspection report stated the issues with her kennel "remain[ed] constant with each inspection and more issues ha[d] surfaced since the last inspection." The entry for Smith's Kennel contained no photographs. The summary report associated with the Dirty Dozen report summarized the introduction of the Dirty Dozen report and included the lists of the "Dirty Dozen" and "Dishonorable Mentions."

The news release issued in conjunction with the reports was titled: "Dog Advocates Release New Report on Missouri's ‘Dirty Dozen,’ Some of the State's Most Deplorable Puppy Mills: Missourians encouraged to vote ‘Yes' on Proposition B to curb puppy mill cruelty." The news release announced the publication of the Dirty Dozen report, which it said included "some of the most deplorable puppy mills in the state[.]" It further stated that the "Dirty Dozen" were included in the report because they "repeatedly depriv[ed] dogs of the basics of humane care, such as food, shelter from the heat and cold and/or basic veterinary care ... and based in some cases on conditions seen in photographs taken by investigators earlier this year." The news release continued with a summary description of some of the specific violations of the first three "puppy mills" included in the Dirty Dozen report. The news release concluded by stating that Proposition B would stop the violations reported at the puppy mills, such as dogs being "crammed into small and filthy cages, denied veterinary care, exposed to extremes of heat and cold, and given no exercise or human affection." While the examples of the specific violations listed in the news release did not apply to each and every kennel in the report, some of the violations, such as a lack of shelter from the cold, did apply to Ms. Smith's kennel. Neither Ms. Smith's name nor the name of her kennel was included in the news release.

Mr. Pacelle also circulated an article titled "A Dozen More Reasons for Supporting Missouri's Prop B," following the release of the Dirty Dozen report. The article describes the report as a "painstakingly documented report synthesiz[ing] information gleaned from state and federal inspection reports, including enforcement records, animal care violations, and photographs" that "identified these Dirty Dozen puppy mills and eight dishonorable mentions." Like the news release, the article detailed a few specific violations included in the Dirty Dozen report without mentioning the name of any specific kennel. The news release did not include Mrs. Smith's name nor the name of her kennel.

On November 2, 2010, Missouri voters passed Proposition B, which was to take effect in November 2011 as the Canine Mill Cruelty Prevention Act, section 273.345, RSMo Supp. 2011. Following the law's passage, state legislators almost immediately began to introduce bills to repeal or amend the act. This...