Tatur v. Solsrud

• Court: Wisconsin Supreme Court
• Writing for the Court: DAY
• Citation: Tatur v. Solsrud, 498 N.W.2d 232, 174 Wis.2d 735 (Wis. 1992)
• Decision Date: 01 December 1992
• Docket Number: No. 91-1496,91-1496
• Parties: Randolph TATUR, Raymond Kramer, Eugene Dusell, Melvin Wedwick, Robert Martindale, Donald Molstad, Gerald Booth and Phillip J. Schneider, Plaintiffs-Appellants-Petitioners, v. David J. SOLSRUD and John Christman, Defendants-Respondents, John P. Kaiser and Alan Rathsack, Defendants. . Oral Argument:

Page 232

498 N.W.2d 232

174 Wis.2d 735

Randolph TATUR, Raymond Kramer, Eugene Dusell, Melvin Wedwick, Robert Martindale, Donald Molstad, Gerald Booth and Phillip J. Schneider Plaintiffs-Appellants-Petitioners, v. David J. SOLSRUD and John Christman, Defendants-Respondents John P. Kaiser and Alan Rathsack, Defendants.

No. 91-1496.

Supreme Court of Wisconsin.

Oral Argument: Dec. 1, 1992.

Opinion Decided April 20, 1993.

For the defendant-respondent, John Christman, there was a brief by Susan M. Zabel and Coe, Dalrymple, Heathman, Coe & Zabel, S.C., Rice Lake and oral argument by Susan M. Zabel.

DAY, Justice.

This is a review of a published decision of the court of appeals ¹ which affirmed an order of the circuit court for Rusk County, Honorable Roderick A. Cameron, Judge, dismissing the plaintiffs' defamation claim. The circuit court granted summary judgment in favor of the defendants, who allegedly misrepresented the plaintiffs' voting records while the plaintiffs were running for reelection to the Rusk County Board. This case presents the issue of whether the alleged misrepresentations concerning the plaintiffs' voting records are capable of a defamatory meaning.

The plaintiffs were incumbent candidates in the 1988 election for the Rusk County Board. Within four days before the election, the defendants composed and distributed letters to the plaintiffs' constituents. According to the plaintiffs, these letters contained three types of misrepresentations: (1) how the plaintiffs voted on specific resolutions; (2) the effect of specific resolutions; and (3) the procedural and factual background of specific resolutions. The defendants also placed a full page advertisement, containing essentially the same information as the letters, in a weekly newspaper.

The plaintiffs complained to the Rusk County District Attorney that the defendants' misrepresentations violated sec. 12.05, Stats.1987-88 ², which carries a penalty of not more than $1,000, or imprisonment not more than six months or both. ³ The plaintiffs then filed this action and the defendants moved for summary judgment. Although the circuit court originally denied the motion, the circuit court reversed itself on reconsideration and granted the defendants' motion for summary judgment. The plaintiffs appealed and the court of appeals affirmed the circuit court in a split decision on the grounds that the alleged misrepresentations are not capable of a defamatory meaning. This court then granted the plaintiffs' petition for review.

On review, the plaintiffs argue that the alleged misrepresentations contained in the letters are capable of a defamatory meaning. "It is the function of the court as a matter of law to determine whether a communication is capable of a defamatory meaning." Lathan v. Journal Co., 30 Wis.2d 146, 153, 140 N.W.2d 417 (1966); See also Schaefer v. State Bar, 77 Wis.2d 120, 122, 252 N.W.2d 343 (1977). The question on review, therefore, is whether the court of appeals was correct in holding that, as a matter of law, the alleged misrepresentations of the plaintiffs' voting records are not capable of a defamatory meaning.

Neither the plaintiffs' amended complaint nor the plaintiffs' brief to this court sets forth the particular statements alleged to be defamatory. Rather, the plaintiffs merely attached the eight letters to the complaint and cited three "examples" ⁴ of "defamation" in their brief. The court of appeals correctly noted that the plaintiffs' complaint was not in accordance with sec. 802.03(6), Stats., which requires that "in an action for libel or slander, the particular words complained of shall be set forth in the complaint." On appeal, the defendants did not raise the issue of the plaintiffs' non-compliance with sec. 802.03(6). Like the court of appeals, we assume that all the statements contained in the letters are false and examine each letter in its entirety for a statement which is capable of a defamatory meaning. We find none.

This court quoted with approval the test for defamation set forth in the Restatement. See Ranous v. Hughes, 30 Wis.2d 452, 460, 141 N.W.2d 251 (1966) (citing Lathan, 30 Wis.2d at 153, 140 N.W.2d 417). The Restatement provides that "[a] communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 559 (1977). Furthermore, "[i]n determining whether the language is defamatory, the words must be reasonably interpreted and must be construed in the plain and popular sense in which they would naturally be understood in the context in which they were used and under the circumstances they were uttered." Frinzi v. Hanson, 30 Wis.2d 271, 276, 140 N.W.2d 259 (1966) (citing Meier v. Meurer, 8 Wis.2d 24, 98 N.W.2d 411 (1959)).

In applying the test set forth above, we conclude that the letters attached to the plaintiffs' complaint do not contain any statements capable of a defamatory meaning. We agree with the court of appeals characterization that "most of the statements concern how the plaintiffs voted on issues regarding expenditures and taxes." None of the issues mentioned in the letter, however, are of the nature that a vote on one side or the other could harm the reputation of the voting official as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

Although the plaintiffs assert that the misrepresentations deterred electors from voting for them, this court held that a statement which is not libelous on its face is not made so by the fact that the statement causes some people to vote against the plaintiff. Frinzi, 30 Wis.2d at 278, 140 N.W.2d 259. In Frinzi, the plaintiff, a candidate for Governor, alleged that the defendant stated that "Dominic Frinzi, by stating that he is considering running as an independent has thrown away all pretense at being a Democrat." Id. at 274, 140 N.W.2d 259. This court held that the statement was not capable of a defamatory meaning and stated, "[i]t might be argued that such statement would cause some Democrats not to vote for Frinzi in the primary, but unless the statement is libelous on its face it is not made so because of the effect or damage it might have on Frinzi's candidacy." Id. at 278, 140 N.W.2d 259.

We do not hold that a misrepresentation of a voting record can never be capable of a defamatory meaning. We do hold that a plaintiff seeking to prove defamation must show more than the fact that a misrepresentation caused the candidate to lose votes. Specifically, a plaintiff must show that the misrepresentation was defamatory on its face. The plaintiffs failed to do so in this case.

Our holding comports with this court's decision in D'Amato v. Freeman Printing Co., 38 Wis.2d 589, 157 N.W.2d 686 (1968). In D'Amato, the plaintiff, a former district attorney running for the office of county judge, alleged that the defendant made the following statements: (1) the plaintiff solicited financial aid in violation of the corrupt practices law; (2) the plaintiff pretended on his campaign posters that he was already a judge; and (3) plaintiff wrongfully neglected to perform his duties as district attorney so that prostitution, gambling and liquor laws were openly violated. Although this court held that the statements were capable of a defamatory meaning, this court did not base it's holding on the fact that the statements caused some voters to refrain from...