Van Straten v. Milwaukee Journal Newspaper-Publisher

• Decision Date: 29 August 1989
• Docket Number: M,NEWSPAPER-PUBLISHE,No. 88-1801,88-1801
• Citation: 447 N.W.2d 105,151 Wis.2d 905
• Parties: , 16 Media L. Rep. 2408 Dennis J. VAN STRATEN, d Plaintiff-Appellant, v. MILWAUKEE JOURNALilwaukee Sentinel Newspaper-Publisher, Appleton Post-Crescent Newspaper-Publisher, Wausau Daily Herald Newspaper-Publisher, Oshkosh Northwestern Newspaper-Publisher, and Green Bay Press Gazette Newspaper-Publisher, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 105

447 N.W.2d 105

151 Wis.2d 905, 16 Media L. Rep. 2408

Dennis J. VAN STRATEN, ^d Plaintiff-Appellant, v. MILWAUKEE JOURNAL NEWSPAPER-PUBLISHER, Milwaukee Sentinel Newspaper-Publisher, Appleton Post-Crescent Newspaper-Publisher, Wausau Daily Herald Newspaper-Publisher, Oshkosh Northwestern Newspaper-Publisher, and Green Bay Press Gazette Newspaper-Publisher, Defendants-Respondents.

No. 88-1801.

Court of Appeals of Wisconsin.

Submitted on Briefs June 1, 1989.

Opinion Released Aug. 29, 1989.

Opinion Filed Aug. 29, 1989.

[151 Wis.2d 907] Dennis J. Van Straten, plaintiff-appellant pro se.

Richard M. Burnham and [151 Wis.2d 908] Brady C. Williamson of LaFollette & Sinykin, Madison, for Oshkosh Northwestern Newspaper-Publisher and Appleton Post-Crescent Newspaper-Publisher.

John R. Dawson and James L. Huston of Foley & Lardner, Milwaukee, for Milwaukee Journal Newspaper-Publisher and Milwaukee Sentinel Newspaper-Publisher.

John R. Dawson and James L. Huston of Foley & Lardner, Milwaukee, for Wausau Daily Herald.

John R. Dawson and James L. Huston of Foley & Lardner, Milwaukee, for Green Bay Press Gazette Newspaper-Publisher.

Before CANE, P.J., and LaROCQUE and DYKMAN, JJ.

CANE, Presiding Judge.

Dennis Van Straten appeals a summary judgment in favor of Milwaukee Journal Newspaper, et al (newspapers), dismissing his actions for violation of confidentiality under sec. 146.025(5), Stats., defamation, and invasion of privacy against six Wisconsin newspapers and some of their employees. The circuit court held that Van Straten failed to comply with sec. 802.08(3), Stats., requiring the responding party to a motion for summary judgment to set forth specific facts showing that there is a genuine issue for trial. The circuit court found that even disregarding this failure, the newspapers were entitled to summary judgment because Van Straten was a limited purpose public figure and he failed to make the required showing of actual malice. Additionally, the circuit court concluded that even if Van Straten was not a limited purpose public figure, the newspapers that relied on a wire service for the contents of their articles about Van Straten were not negligent as a matter of law. Because we agree that Van Straten was a limited purpose public figure who did not show actual malice, we affirm the summary judgment.

Van Straten attempted suicide on October 24, 1985, while he was an inmate awaiting On November 13, 1985, Outagamie County Sheriff Thomas Drootsan, informed reporters from the Appleton Post-Crescent Newspaper that jail personnel knew Van Straten was homosexual and that he exposed jailers to AIDS when he slashed his wrists during the suicide attempt. The Post-Crescent published a newspaper report on November 13 entitled "Sheriff vows he won't take AIDS prisoner." The report stated that Sheriff Drootsan would not accept a prisoner back into his jail who tested positive for exposure to the deadly AIDS virus, and who in a suicide attempt sprayed two jailers with his blood. The article also reported that jail deputies had requested the testing of Van Straten's blood because he was "a known bisexual, [and] had previously made his many homosexual experiences common knowledge." The article refered to the sheriff's conviction that guidelines and policies for handling AIDS in the jail setting should be developed in order to protect jail personnel and prisoners.

trial at the Outagamie County Jail. He was taken to a local hospital where he received more than forty stitches to wounds on his wrist and forearm. He was then involuntarily admitted to the Winnebago Mental Health Institution (WMHI) where his blood was tested for exposure to the AIDS virus. After returning to the Outagamie County Jail, Van Straten was informed, on November 8, that he had tested positive to exposure to the AIDS virus. He voluntarily transferred back to WMHI, but he never consented to a disclosure of any medical information to anyone.

On November 14, 1985, an official from the Public Affairs Office of the Department of Health and Social Services (DHSS) contacted an Appleton Post-Crescent reporter and told him that Van Straten did not have AIDS, but merely tested positive for HTLV-3 (exposure to the AIDS virus). The DHSS official stated that Sheriff Drootsan and others were overreacting to the situation. On the same day, the Appleton Post-Crescent printed an article reporting the information given by the DHSS official.

On November 15, Van Straten contacted a reporter from the Appleton Post-Crescent to rebut the allegations about him in earlier stories printed in the Post-Crescent. Among the allegations he denied were that he squirted jail personnel with his blood, that he is a known homosexual or bisexual, and that he has AIDS. ¹ On the same day, the Appleton Post-Crescent printed an article entitled "AIDS prisoner tells his side," reporting the substance of the interview with Van Straten.

On December 11, 1985, Van Straten was tried and convicted of the crimes for which he was held awaiting trial in the Outagamie County Jail. At Van Straten's request, a WMHI doctor wrote to the sentencing judge to confirm that Van Straten had tested positive for AIDS. Van Straten also wrote a letter to the judge asking for a lighter sentence because he had AIDS. ²

The Appleton Post-Crescent printed additional articles following up on the initial stories. These articles, like the first, were based on interviews with the jail personnel involved. Many of the later articles mention Van Straten and the suicide attempt only as incidental to Sheriff Drootsan's campaign to develop policies in the state correctional system for the handling of AIDS-infected inmates. The last article Van Straten complained of was dated April 12, 1987.

From the beginning, the Associated Press (AP) adopted the Post-Crescent articles and transmitted them via the wire service. Several Wisconsin newspapers, including the rest of the defendant-newspapers, republished the AP reports. These reports also continued for the next couple of years.

Van Straten brought suit against the newspapers, claiming that statements published in their newspapers defamed him, invaded his privacy, and violated his right to confidentiality of the AIDS test results. The newspapers moved for summary judgment, and the trial court granted the motion in favor of all the defendants.

On appeal, Van Straten argues that the trial court erred by holding that he was a limited purpose public figure for purposes of the AIDS controversy and that even if he was, he met his burden of showing actual malice. Alternatively, Van Straten argues that he was denied adequate discovery opportunity, thus disabling him from making the required showing. Finally, Van Straten argues that the trial court erred by granting summary judgment in his invasion of privacy and violation of confidentiality claims.

When reviewing a grant of summary judgment, we must apply the standards and methods set forth in sec. 802.08, Stats. According to this standard of review, we must uphold a grant of summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Sec. 802.08(2), Stats. Thus, this court will reverse the judgment of the circuit court only if it incorrectly decided a legal issue or if material facts are in dispute. Prince v. Bryant, 87 Wis.2d 662, 666, 275 N.W.2d 676, 678 (1979).

DEFAMATION CLAIM

The elements of a defamation claim, as stated in Restatement (Second) of Torts, sec. 558 (1977), include:

(a) a false and defamatory statement concerning another;

(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part of the publisher; and

(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

The United States Supreme Court, in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), established a constitutional element in defamation claims. It held that the first and fourteenth amendments require a public official bringing a defamation claim to prove "actual malice." Id. at 279-83, 84 S.Ct. at 725-28.

The definition of a "public official" has expanded since the New York Times decision. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974), in addition to "public officials," two types of "public figures" were discussed. The first type is the person who has such a pervasive fame or notoriety that he or she may be deemed a public figure for all purposes. The second type is one who, by being drawn in or injecting himself or herself into a public controversy, becomes a public figure for a limited range of issues. The Wisconsin Supreme Court has agreed that whether a plaintiff is a public figure for all purposes or a public figure for a particular controversy, he or she must establish that the news media acted with actual malice. Lewis v. Coursolle Broadcasting, 127 Wis.2d 105, 119, 377 N.W.2d 166, 172 (1985).

Our supreme court has delineated criteria applicable to whether a defamation plaintiff may be considered a limited purpose public figure. The two requirements, as established in Denny v. Mertz, 106 Wis.2d 636, 649-50, 318 N.W.2d 141, 147, cert. denied, 459 U.S. 883, 103 S.Ct. 179, 74 L.Ed.2d 147 (1982), are that: (1) there must be a public controversy; and (2) the court must look at the nature of the plaintiff's involvement in the public controversy to see whether he has injected himself into the controversy so as to influence the resolution of the issues involved. The Denny court, relying on Gertz, emphasized the importance of the factors that the plaintiff's status is such that he has access to the media in order to rebut the defamation and...