Wolfe v. VT Digger
| Citation | 2023 VT 50 |
| Docket Number | 22-AP-222 |
| Decision Date | 08 September 2023 |
| Parties | Kyle Wolfe v. VT Digger et al |
| Court | United States State Supreme Court of Vermont |
On Appeal from Superior Court, Rutland Unit, Civil Division David A. Barra, J.
Kyle T. Wolfe, Pro Se, Burlington Plaintiff-Appellant/Cross-Appellee.
Matthew B. Byrne of Gravel & Shea PC, Burlington, for Defendants-Appellees/ Cross-Appellants.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. Plaintiff Kyle Wolfe appeals from the civil division's dismissal of his lawsuit against Vermont Digger and its editor Anne Galloway (hereinafter collectively referred to as "VT Digger"), arguing that dismissal was improper and alleging that VT Digger's publication of articles about him was defamatory and constituted a hate crime. VT Digger cross-appeals, arguing that its special motion to strike under Vermont's anti-SLAPP statute should not have been denied as moot after its motion to dismiss was granted. We affirm the court's dismissal of plaintiff's complaint for failure to state a claim, but conclude that the trial court should have granted VT Digger's motion to strike, and therefore reverse and remand for the court to award attorney's fees to VT Digger pursuant to the anti-SLAPP statute.
¶ 2. In October 2021, plaintiff was arrested at the Vermont Statehouse on charges of aggravated disorderly conduct, disorderly conduct, and resisting arrest based on conduct directed toward the Speaker of the Vermont House of Representatives. VT Digger published an article on October 8, 2021, titled, "Man arrested at the Vermont Statehouse after threatening House speaker." The article named plaintiff, described his allegedly threatening conduct toward the House Speaker, referred to an unloaded gun found in plaintiff's car and "a prior criminal conviction that would prevent [plaintiff] from owning most types of guns," and noted that he had been admitted to a "medical facility for mental health screening under a mental health warrant."
¶ 3. In December 2021, plaintiff was released on conditions that required him to stay in Rutland County and prohibited him from possessing firearms or contacting the House Speaker. The same day, VT Digger published an article titled, "Defendant who threatened House speaker released with several conditions." The article described plaintiff's conditions of release, the charges against plaintiff, and some of the facts the court considered during plaintiff's bail hearing, and noted that plaintiff had a 2017 conviction for conspiracy to distribute narcotics.
¶ 4. The civil division issued a final order against stalking in December 2021, which prohibited plaintiff from communicating with the House Speaker electronically or coming within three hundred feet of her, her residence, her motor vehicle, and her place of employment. In February 2022, plaintiff allegedly posted annotated photographs of firearms to his social media accounts, "tagged" the House Speaker in a Facebook post, and asked others to contact the House Speaker, noting in a comment on Facebook, "Yes, I am aware this is technically 'illegal.'" Due to this conduct, plaintiff was charged in March 2022 with violating the anti-stalking order. A few days later, plaintiff was further charged with violating the Rutland County travel restriction condition after he allegedly traveled to South Burlington. The court imposed new conditions of release that expanded on plaintiff's prior conditions.
¶ 5. VT Digger subsequently published an article on March 3, 2022, detailing plaintiff's new conditions of release. Finally, on March 7, VT Digger published another article describing plaintiff's social media posts that led to the charge of violating the order against stalking and his conditions of release.
¶ 6. Plaintiff filed a complaint against VT Digger in May 2022 accusing it of defamation by libel and slander and requesting the civil division enjoin VT Digger from publishing further articles about him. In support of his defamation claim, plaintiff referred to the four abovedescribed VT Digger articles from October 8 and December 13, 2021, and March 3 and March 7, 2022. He also cited Vermont's hate-crime statute but did not specifically allege that VT Digger had violated it.
¶ 7. VT Digger moved to dismiss, arguing that plaintiff's request for injunctive relief sought a restraint on speech that was protected by statutory and constitutional privileges. VT Digger's motion further asserted that plaintiff failed to state a claim for defamation.
¶ 8. In July 2022, the civil division issued an order directing plaintiff to file a more definite statement of his claim. The next day, VT Digger filed a special motion to strike the complaint under 12 V.S.A. § 1041(a), asserting that plaintiff's complaint "attack[ed] the Vermont Digger's right to speak on issues of public concern" and was therefore the type of anti-free-speech lawsuit the Legislature aimed to stop with its anti-SLAPP legislation.
¶ 9. Plaintiff subsequently filed materials with the court that purported to be a more definite statement of his claim. These included copies of the articles of organization for his business, his curriculum vitae, his college transcript, one of the VT Digger articles, and a redacted October 2021 mental-health order. He also filed an affidavit in which he provided links to his social media pages, listed the four VT Digger articles, claimed that he was not a public figure, and argued that VT Digger had harmed his reputation, business, and mental health by falsely suggesting that he was violent, mentally unstable, and had broken the law. In addition to reiterating his defamation claim, he asserted that by discussing his prior conviction and mental health proceedings in the articles, VT Digger committed hate-motivated crimes under 13 V.S.A. §§ 1455 and 1457.
¶ 10. The civil division granted VT Digger's motion to dismiss, concluding that plaintiff failed to state a claim for defamation or for violation of the hate-crime statute because the VT Digger articles were speech protected by the U.S. and Vermont Constitutions. In a separate order, the court denied VT Digger's motion to strike the complaint as moot. Both parties appealed.
¶ 11. Plaintiff appeals from the civil division's order granting VT Digger's motion to dismiss his complaint for failure to state a claim. In his brief, plaintiff argues that VT Digger was motivated by hate in publishing the articles. He argues that the articles did not involve a matter of public concern and caused him severe emotional and reputational harm.
¶ 12. We review the trial court's decision on a motion to dismiss without deference. Ferry v. City of Montpelier, 2023 VT 4, ¶ 8, ____ Vt. ____, 296 A.3d 749. A motion to dismiss for failure to state a claim "may not be granted unless it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Wool v. Off of Pro. Regul., 2020 VT 44, ¶ 8, 212 Vt. 305, 236 A.3d 1250 (quotation omitted). "Where pleadings rely upon outside documents, those documents merge into the pleadings and the court may properly consider them under a Rule 12(b)(6) motion to dismiss." Davis v. Am. Legion, Dep't of Vt., 2014 VT 134, ¶ 13, 198 Vt. 204, 114 A.3d 99 (quotation omitted) (alteration omitted).
¶ 13. To state a claim for defamation, a plaintiff must allege the following:
(1) a false and defamatory statement concerning another; (2) some negligence, or greater fault, in publishing the statement; (3) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory damages.
Lent v. Huntoon, 143 Vt. 539, 546-47, 470 A.2d 1162, 1168 (1983) (footnote omitted). A defamatory statement is one that tends to tarnish a plaintiff's reputation and "expose her to public hatred, contempt or ridicule." Davis, 2014 VT 134, ¶ 22 (quotation omitted). "Truth . . . is a complete defense to defamation." Lent, 143 Vt. at 548, 470 A.2d at 1169. "[F]or the defense of truth to apply, it is now generally agreed that it is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is substantially true." Russin v. Wesson, 2008 VT 22, ¶ 8, 183 Vt. 301, 949 A.2d 1019 (quotation omitted).
¶ 14. Construed in the light most favorable to plaintiff, his complaint fails to state a claim for defamation. Plaintiff only identified two specific statements as defamatory: that plaintiff was arrested for threatening the House Speaker and that he was accused of stalking the House Speaker. However plaintiff does not allege that these statements were false. He contested the validity of the charges and the anti-stalking order, but did not deny that they existed. Plaintiff also asserted that the articles harmed his reputation by labeling him as mentally ill and ridiculed him for a preexisting health condition. However, plaintiff identified no specific false statements related to this claim. Two of the articles stated that, after his arrest in October 2021, he had been "screened by Washington County Mental Health and admitted to a secure medical facility under a mental health warrant." Plaintiff did not allege in his complaint, or assert on appeal, that this was untrue, and it is supported by the affidavit filed by the Capitol Police. Another article stated that the court had ordered plaintiff to undergo a competency evaluation, and quoted a deputy state's attorney as saying that "according to the Brattleboro Retreat, [plaintiff] was not in compliance with his medication and treatment, and made vague, nonspecific threats while he...
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