Torgerson v. Journal/Sentinel, Inc., s. 95-1098

CourtUnited States State Supreme Court of Wisconsin
Citation210 Wis.2d 524,563 N.W.2d 472
Docket NumberNos. 95-1098,95-1857,s. 95-1098
Parties, 25 Media L. Rep. 2249 John W. TORGERSON, Plaintiff-Respondent-Petitioner, v. JOURNAL/SENTINEL, INC., Defendant-Appellant. John W. TORGERSON, Plaintiff-Appellant-Petitioner, v. JOURNAL/SENTINEL, INC., Defendant-Respondent.
Decision Date11 June 1997

For plaintiff-respondent/appellant-petitioner there were briefs by Brian E. Butler, Meg Vergeront and Stafford, Rosenbaum, Rieser & Hansen, Madison and oral argument by Brian E. Butler.

For the defendant-appellant/respondent there was a brief by Robert J. Dreps, Brady C. Williamson and La Follette & Sinykin, Madison and oral argument by Robert J. Dreps.

¶1 SHIRLEY S. ABRAHAMSON, Chief Justice

This is a review of an unpublished decision of the court of appeals, 1 affirming in part and reversing in part a judgment and order of the Circuit Court for Eau Claire County, Paul J. Lenz, Judge. The circuit court denied the motion for summary judgment of Journal/Sentinel, Inc. (the newspaper) in the first defamation action of John W. Torgerson (the plaintiff) and, in a separate proceeding, granted the newspaper's motion to dismiss the plaintiff's second action, which alleged defamation in other papers' republications of the originally challenged article. 2

¶2 The court of appeals granted the newspaper leave to appeal the circuit court's denial of the newspaper's motion for a summary judgment in the first action, and the plaintiff appealed the circuit court's grant of the newspaper's motion to dismiss the second action. The court of appeals consolidated the appeals. It concluded that the plaintiff failed to provide sufficient evidence of actual malice to go to trial, reversing the circuit court's denial of the newspaper's motion for summary judgment in the first action and affirming, on other grounds, the circuit court's dismissal of the second action.

¶3 The newspaper urges several grounds on which it is entitled to summary judgment: the articles are protected by a common law fair comment privilege, the articles make no actionable statements, the articles are not false and the articles were not published with actual malice. The plaintiff disputes each of these grounds.

¶4 We conclude, as did the court of appeals, that the motion for summary judgment must be granted because, as a matter of law, there was not sufficient evidence of actual malice. Were the fact finder to accept the plaintiff's version of the facts, it could not conclude that the newspaper had published with actual malice, that is, with knowledge of falsity or with reckless disregard for the truth in making the assertions in question. We therefore affirm the decision of the court of appeals.

¶5 We will discuss in turn: (1) the factual basis of the action; (2) the elements of a defamation action brought by a public figure against a media defendant; (3) the standard of appellate review and the appropriate summary judgment methodology in a public figure defamation action; and (4) the element of actual malice.

I.

¶6 The following recitation of facts is drawn from the extensive depositions and exhibits supporting the motion for, and brief opposing, summary judgment.

¶7 The plaintiff served as Wisconsin's Deputy Commissioner of Insurance from January 1991 until December 1992 and then as acting Commissioner through March 1993. While serving in the Office of Commissioner of Insurance (OCI), the plaintiff held a 50% ownership interest in and was secretary-treasurer of a title insurance agency regulated by the OCI.

¶8 In April 1991, at the plaintiff's request, Jonathan Becker, legal counsel for the State of Wisconsin Ethics Board, wrote a letter advising the plaintiff of conflicts of interest that might arise because of his concurrent business and government positions, and how to avoid them. The letter summarized the relevant statutes and opinions of the Ethics Board. It opined that the plaintiff's ownership of and employment by a title insurer "raise[d] issues under the Ethics Code," but that "the Ethics Code 'does not prevent any state public official from accepting other employment or following any pursuit which in no way interferes with the full and faithful discharge of his or her duties to the state.' " 3 R. 21 at 10-11. Becker's letter provided further advice and guidance for a public official to avoid situations of potential conflict as follows:

[T]he Ethics Board has recognized that if a state public official has a sizable investment in a business that the official's agency regulates, the official's personal interest in the performance of that business may conflict impermissibly with the official's regulatory responsibilities.

A public officer owes an undivided duty to the public whom he serves and should avoid placing himself in a position in which a conflict of interest might arise.... Thus, in determining when and how to avoid situations of potential conflict I advise erring on the side of caution.

R. 21 at 11 (citations omitted).

¶9 Becker's letter offered three additional pieces of guidance. First, it stated that, "at a minimum, it would be inappropriate for you to place yourself in a position in which you or your business would benefit directly from a decision or action you took specifically in respect to your business;" second, "you should refrain from similar action involving the business of any competitors"; third, with regard to rule making, the plaintiff should be guided as follows:

[I]n instances in which your agency is called upon to promulgate rules ... you should participate only if: (1) your action affects the whole class of similarly situated businesses; (2) your business's presence in the class is insignificant when compared to the total number of members in the class; and (3) the action's effect on your business is neither significantly greater nor less than upon other members of the class.

R. 21 at 11.

¶10 Early in 1992 an acquaintance of the plaintiff in the title insurance industry suggested to the plaintiff that the OCI amend an administrative rule so that title insurance companies would be exempt from filing reports of discounted title insurance rates with the OCI. The plaintiff asked OCI staff members to draft such a rule change if they found it advisable, good public policy and good for the agency. The amended rule was drafted and, in January 1993, approved by the plaintiff.

¶11 Also in January 1993 the Ethics Board provided a second letter advisory opinion at the plaintiff's request. The second letter, written by Ethics Board Executive Director R. Roth Judd, reaffirmed the January 1991 advice. Judd's letter characterized the 1991 letter as follows:

[W]e noted that state law would forbid you to use your position as deputy to obtain a substantial benefit for the title insurance company or to participate in matters in which you have a substantial financial interest. After noting that "a public officer owes an undivided loyalty to the public whom it serves and should avoid placing himself in a position in which a conflict of interest might arise," we advised erring on the side of caution.

R. 21 at 15. Judd's letter then repeated the three pieces of guidance given in the 1991 letter. 4

¶12 Later in January 1993 the newspaper published three related articles by staff writer James Rowen discussing the plaintiff's title insurance business and regulatory position and the Ethics Board letters. 5 The articles do not mention the rule change. The plaintiff does not claim that these articles were defamatory.

¶13 In October 1993 the newspaper published another article by Rowen discussing the plaintiff's concurrent business and government positions and the Ethics Board letters in the context of the rule change. 6 Under the headline "Torgerson cut rule despite ethics warning," the article stated that the plaintiff's concurrent positions had led "to two warnings by the state Ethics Board to avoid a conflict of interest by staying out of title insurance regulation," but that the plaintiff had helped to eliminate the discount rate filing rule.

¶14 The article discussed the effect of the rule change and reported the views of several persons, including the plaintiff and Becker. The article described Becker as "disappointed to learn that Torgerson had been involved in changing the rules governing title insurance regulation." Becker was quoted as follows: " 'Quite honestly, I'm just very surprised given what he said publicly and privately to us that he was uninvolved.' " Becker was also reported as saying that the "Ethics Board advice was meant to suggest caution in potential conflicts of interest because state laws did not absolutely prohibit officials from acting on matters in which they have personal interests."

¶15 The article reported the plaintiff's position as follows:

Torgerson told The Journal earlier this year, after it had disclosed his dual role as insurance regulator and insurance company co-owner, that he had stayed out of title insurance matters.

But he said in an interview Wednesday that he had initiated and approved the change in the rate filing rule because he thought it would cut the cost of writing policies and did not benefit him personally.

¶16 On November 3, 1993, counsel for the plaintiff wrote to the newspaper, pursuant to Wis.Stat. § 895.05(2)(1991-92), claiming that the October article was false and defamatory and asking the newspaper to print a retraction. The newspaper did not do so.

¶17 Rowen was informed of the request for retraction and understood its significance as a possible prelude to a defamation lawsuit. Rowen had also been informed by a reporter for another newspaper that the plaintiff intended to sue Rowen for defamation. Nonetheless, Rowen destroyed documents related to his investigation of the plaintiff and the title insurance industry, including his notes from interviews with Becker and others. 7 A few months later the...

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