Tatur v. Solsrud

LaROCQUE, J.

Randolph Tatur, Raymond Kramer, Eugene Dusell, Melvin Wedwick, Robert Mar-tindale, Donald Molstad, Gerald Booth and Phillip J. Schneider, candidates running for reelection to the Rusk County Board, appeal a summary judgment in favor of David J. Solsrud and John Christman, sued for defamation because they allegedly misrepresented the candidates' voting records in letters they sent out to electors during the election race.1 The trial court held that misrepresenting how the candidates had voted on specific issues is not defamatory as a matter of law. We agree and affirm.

We apply the summary judgment statute, sec. 802.08(2), Stats., in the same manner as the circuit court. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816, 820 (1987). Because that methodology is well known, it need not be repeated here. Paape v. Northern Assur. Co., 142 Wis. 2d 45, 50, 416 N.W.2d 665, 667 (Ct. App. 1987).

The issue on appeal is whether the alleged misrepresentations concerning the candidates' voting records are capable of a defamatory meaning. "A communication is defamatory if it tends so to harm the reputation of *269another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Ranous v. Hughes, 30 Wis. 2d 452, 460, 141 N.W.2d 251, 254 (1966) (quoting 3 Restatement of Torts § 559 (1938)). In determining whether language is defamatory, "the words must be construed in the plain and popular sense in which they would naturally be understood." Meier v. Meurer, 8 Wis. 2d 24, 29, 98 N.W.2d 411, 414 (1959) (quoting Leuch v. Berger, 161 Wis. 564, 571, 155 N.W. 148, 151 (1915)). 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, 421 (1966).

The candidates allege that the letters sent by Sol-srud and Christman to electors contained false statements and misrepresentations regarding how they voted on specific resolutions, the effect of their vote and the procedural and factual backgrounds of the resolutions. The candidates, however, never specifically state in either their complaint or their amended complaint what particular statements in the two- to three-page letters they find objectionable. Rather, they merely attached the letters to the complaint. We note that this is not in accordance with sec. 802.03(6), Stats., which requires that "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint . . .." However, because this issue was not raised on appeal, we deem it abandoned.2 Young v. Young, 124 Wis. 2d 306, 317, 369 N.W.2d 178, 182 (Ct. App. 1985). For the purposes of this appeal, we will assume that all *270the statements concerning the candidates' voting records are false. Most of the statements concern how the candidates voted on issues regarding expenditures or taxes. Examples of the statements contained in the letters are as follows:

My opponent,
Voted against "Elimination of New Hiring & Replacements" in an effort made to curb more spending and higher taxes. Positions would not have been filled without the full approval of the County Board.
Voted against the repeal of the 6% double penalty on delinquent real estate taxes. There already was a 12% interest rate and the penalty put that much more burden on the taxpayer who could not pay his taxes on time.
Voted to pay $6,184.00 for back retirement tax to State of Wisconsin. This was on top of $16,808.00 payments and interest to the State which have accumulated since 1980 because of a County management oversight.

The candidates contend that Christman and Sol-srud, by intentionally misleading the public as to their voting records, attempted to lower the candidates in the estimation of the community and attempted to deter electors from voting for them. While we do not condone such illegal campaign tactics3 as allegedly used by *271Christman and Solsrud, misrepresenting how someone votes on an issue is not defamatory as a matter of law because it does not assault a person's character such that it would lower a person's esteem in a community. The situation presented here is analogous to Frinzi v. Hanson, 30 Wis. 2d 271, 140 N.W.2d 259 (1966).

Frinzi argued that the statement "Dominic Frinzi, by stating that he is considering running as an independent has thrown away all pretense at being a Democrat," id. at 277, 140 N.W.2d at 262, was defamatory because it characterized him as "a deceiver, a man unworthy of public confidence, a man having a pretended character and a man who is a premeditated liar." Id. The court held that running as an independent is not disgraceful as to hold a person up to public ridicule or contempt. Id. at 278, 140 N.W.2d at 262. The court further held that the thrust of the statement implying that Frinzi was not a good Democrat was also not libelous even though it might cause some Democrats not to vote for him. Id. Likewise, how elected officials vote on issues is not disgraceful so that it would lower their esteem in the community even though it might cause some electors not to vote for them. The candidates attempt to distinguish Frinzi on the basis that here false factual statements were intentionally made four days before the election in order to persuade voters not to vote for them. However, the fact that the alleged misrepresentations were intended does not render a nondefamatory statement defamatory. See Converters Equip. Corp. v. Condes Corp., 80 Wis. 2d 257, 262-64, 258 N.W.2d 712, 714-15 (1977); see also 53 C.J.S. Libel and Slander § 10 (1987).

The candidates further argue that the violation of sec. 12.05, Stats., which makes it a criminal offense to *272publish false representations pertaining to a candidate, should constitute defamation per se. They argue that the relationship between sec. 12.05 and the law of defamation may be analogized to the relationship between safety statutes and the common-law of negligence where, generally, violation of a safety statute will constitute negligence per se. See Locicero v. Interpace Corp., 83 Wis. 2d 876, 884, 266 N.W.2d 423, 427 (1978). However, statutes are not to be construed as changing the common-law unless the purpose to effect such a change is clearly expressed therein and such purpose is demonstrated by language that is clear, unambiguous and peremptory. Leahy v. Kenosha Mem'l Hosp., 118 Wis. 2d 441, 449, 348 N.W.2d 607, 612 (Ct. App. 1984). Because there is nothing in ch. 12 or sec. 12.05 suggesting that it was intended to change the common-law of defamation, we conclude that a violation of sec. 12.05 does not constitute defamation per se.4 Because we conclude that the statements concerning the candidates' voting records were not defamatory as a matter of law, we affirm.

The dissent would hold that the letters are defamatory because it makes the plaintiffs "appear as spendthrifts and not caring how taxpayer money was spent." Because the plaintiffs are public officials, such a holding would require a further analysis of the first amendment issues as established in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). As was the case in Frinzi, we do not *273reach these issues because we hold that the letters are not defamatory. Id. at 276, 140 N.W.2d at 261.

By the Court. — Judgment affirmed.

The other defendants, John P. Kaiser and Alan Rathsack, are not parties to this appeal. Kaiser did not seek summary judgment, and the trial court in an earlier opinion granted summary judgment in favor of Alan Rathsack, which was not appealed.

Christman and Solsrud did raise this issue before the trial court. The trial court found that under Wisconsin's liberal notice pleadings, the complaint was sufficient, but this finding was not challenged on appeal.

Section 12.05, Stats., makes it a criminal offense to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate which is intended or tends to affect voting at an election."

Even if a plaintiff can demonstrate the legislative intent to impose civil liability for violation of a statute, it must be shown that the statute aims to prevent the harm allegedly inflicted and that the plaintiff is in the class sought to be protected. Leahy, 118 Wis. 2d at 449, 348 N.W.2d at 612. Here, in addition to the absence of a demonstrated legislative intent to alter the well-established laws of defamation, there arises a question of whether the plaintiffs are part of the class to be protected.