Diesen v. Hessburg

SIMONETT, Justice

(concurring specialty)-

I concur with Part II of the majority opinion. Because I do not reach the actual malice issue, I do not join in Part III. Plaintiffs theory of the case was “that the series of articles are the [defamatory] statement.” In a sense this is correct, but it still leaves a need to articulate the implication in the newspaper stories that is claimed to be defamatory and false.

The three articles are long, much too long to repeat here. But some description of the articles is necessary if the issues are to be discussed intelligently, even though to summarize is to engage, I suppose, in one’s own statement by implication.

I.

The first article, on the front page, is entitled Is justice denied battered women in Carlton County? The article states that men who batter women seldom face felony charges and seldom go to jail, and that felonies are generally plea-bargained to misdemeanors. “These generalizations,” says the article, “have been verified by an investigation of Carlton County records * * Local judges, attorneys, and law enforcement officers are quoted on the problems involved in family assault matters. Several battered women cases are then discussed, namely, the Carlton County cases of Henry Wallin, Kenneth K. Clark, Chip Martin, and Donald Defoe. In each case either felony charges were reduced to misdemeanors or only misdemean- or charges were filed, and the defendant served no jail time. One of the charges against Defoe was still pending at the time of the article. Diesen is quoted at some length, explaining the “family dynamics” that require his office to proceed cautiously in family assault matters.

The second article, on page ID, is headlined Justice denied? The case of Kathy Berglund. The article describes two violent physical attacks on Berglund by Melvin Defoe, 9 months apart. Without consulting with Berglund or her personal attorney, Diesen dismissed the felony charges against Defoe for the first assault and accepted a misdemeanor plea with a stayed jail sentence. Defoe was charged with two misdemeanors for the second attack, which charges were still pending. Berglund’s personal attorney was quoted as saying Diesen was “not pushing.” Dies-en chose not to comment on the second attack charges because they were still pending, even though a year had gone by. As to the first attack, Diesen explained his reasons why the felony charges were dropped (devastating effect of a trial on participants — unavailability of witnesses— and in the final analysis, “a judgment call”).

Finally, the third article, entitled County Attorney Donald Diesen — Critics say he’s not tough on domestic abuse, appeared on the focus/editorial page. The second and third paragraphs state:

Critics charge Diesen has ineptly handled battered women’s cases through callous treatment of victims, half-hearted prosecution of their complaints, a tendency to demand too much evidence and undue willingness to plea bargain felony assaults down to misdemeanors.
On the other hand, Diesen is seen by supporters — and even some hard-line opponents — as scrupulously honest, a soft-spoken gentleman, a man who works hard and is not controlled by any special interest. * * * *

*455This article consists primarily of quotations from one attorney and two law enforcement officers, which are favorable to Diesen, and quotations from some five attorneys and two battered women advocates which are unfavorable.

II.

I believe articulation of the defamatory implication is a question of law for the court to decide. Utecht v. Shopko Dept. Store, 324 N.W.2d 652, 653 (Minn.1982). It seems to me, as it did to the trial judge, that the implication of the articles is “one of vague derogation of plaintiff in his official capacity.” The implication is that Dies-en was less than vigorous in prosecuting domestic violence cases; that he was not doing the job he should have been doing and should be removed from office; that, in short, Diesen was a poor prosecutor.1

If a statement is defamatory (as here), the next step is whether it is false. In my view, the statement “Diesen is a poor prosecutor” is what Judge Robinson calls a “hybrid statement,” ie., a statement expressing an opinion which relies on underlying facts. Ollman v. Evans, 750 F.2d 970, 1023 (1984) (Robinson, J., dissenting). Indeed, it is difficult to imagine a more fact-laden hybrid than a derogatory conclusion wholly implied from published facts.2 Diesen may therefore prove, if he can, the falsity of the defamatory implication of prosecutorial unfitness. He may do so by proving that the underlying facts, as reported in the newspaper, were either: (a) untrue (as was done in Harte-Hanks);3 or (b) that some underlying facts were omitted from the published articles, which, if they had been reported, would have refuted the implication of prosecutorial unfitness. Here the published facts are true. Plaintiffs only hope was to prove falsity by omission of critical predicate facts. I agree with the trial judge that plaintiff failed in such proof as a matter of law.

Justice Yetka’s dissent sets out certain underlying facts that should have been in the articles but were not. Even so, these facts omitted from the articles do not make the true facts that were published untrue. Because Kathy Berglund may at one time have been ambivalent about her assaulter going to jail does not necessarily mean, in view of the other facts which are also true, that the prosecution should not have *456sought a jail sentence. Nor do the omitted facts in the Berglund case detract from the facts of the Wallin, Clark, Martin, and Donald Defoe cases indicating overly lenient prosecutions in those instances. If all the underlying facts are taken into account, both published and unpublished, it might be argued that the articles as published lacked balance; but it cannot be said the implication in the articles that Diesen was a poor prosecutor was false. Consequently, I would hold the jury’s finding that the defamatory implication of the articles was substantially false is manifestly contrary to the evidence and, as the trial judge ruled, must be set aside.

If the defamatory implication was “Dies-en is guilty of malfeasance or misfeasance in office,” as Diesen argues, then I think a jury could find that this defamation was false and Diesen could recover if he could also prove actual malice. I do not, however, for reasons already stated, see footnote 1, believe the three articles support the implication of that defamatory statement.

In deciding whether the defamatory statement “Diesen is a poor prosecutor” is a false statement, I do not subscribe to the Janklow /Oilman test as to what is fact and what is opinion. It seems to me this test goes too far in extending the mantle of protected speech over statements that are a hybrid of fact and opinion.

Plaintiff’s cause of action fails here because the statement “Diesen is a poor prosecutor” is not false. By this I mean no more than that when all the underlying predicate facts are considered, with all their conflicting inferences, the statement is not provable one way or the other. One might say this is the same thing as saying that the statement is only an opinion and, in the words of Gertz, “there is no such thing as a false idea”; in other words, the statement is analyzed in terms of whether it is an opinion to determine its falsity. I think it is more accurate to say that what we have here is a hybrid statement where the factual content as evidenced by the underlying facts cannot, as a matter of law, support a finding of falsity.

III.

I decline to join Part III of the majority opinion. My concern is not with reporter Hessburg’s less than admirable conduct, but with the editors’ actions. Diesen submitted to an llVa-hour interview with reporter Hessburg, for which Hessburg could account for only 5½ hours of tape. Diesen, believing (with some cause) that the reporter was building an unfair case against him, asked to meet with someone from the paper other than Hessburg. What is unusual about this case is that the editors were aware Hessburg had developed a dislike for Diesen and that Hessburg’s personal feelings had impaired his journalistic judgment. Yet, rather than have another reporter meet with Diesen, the editors elected only to edit and recheck the facts insofar as reported to them by Hessburg, without knowing whether or not there were other facts or circumstances that Diesen might supply which would tell a different story.

As it so happened, lucky for the newspaper, there were no other facts omitted from the newspaper articles that would have required any change in the tenor of the articles. If there had been, I think the newspaper’s turning a deaf ear to Diesen might, arguably, have supported a jury finding of actual malice. See Harte-Hanks, supra (newspaper’s failure to investigate was a purposeful evasion of the truth). Because Diesen was a public official, he had to prove actual malice as part of his cause of action. In my view, the defamatory implication not having been proven to be false, like the trial judge, I do not reach the issue of actual malice.

. One of the difficulties with defamation by implication is the difficulty in stating what is being implied, as the implication varies with the implicator. One can say the articles imply Dies-en is an inept prosecutor, or an unfit one, or a capable prosecutor who only lacks a necessary forcefulness in prosecuting certain types of cases. Plaintiff Diesen contends the implication is that he is guilty of misfeasance or malfeasance in office, but this, it seems to me, is indulging in rhetorical hyperbole. The articles do not support an implication that Diesen intentionally failed or refused to perform a known mandatory, nondiscriminatory, ministerial duty of his office. See Minn.Stat. § 609.43 (1988) (misconduct of public officers). The articles only suggest that Diesen should have used his prosecutorial discretion more forcefully in battered women cases.

The formulation “Diesen was a poor prosecutor” or "Diesen lacked prosecutorial fitness” seems to me to encompass pretty well the various permissible derogatory connotations, and, therefore, these are the formulations X will use.

. The third article, entitled Critics say he's not tough on domestic abuse, is based on interviews with persons familiar with Diesen's handling of battered women cases. The article quotes generously what these persons had to say about Diesen’s exercise of his prosecutorial powers, which, with a few exceptions, was uncomplimentary.

It was shown at trial that all persons quoted were quoted accurately. The newspaper does not claim it is immune from liability because it was only accurately reporting the views of others. Rather, the newspaper accepts responsibility for its use of these quotations to convey whatever derogatory statement is implicit in the three articles taken together.

.In Harte-Hanks Communications, Inc. v. Connaughton, — U.S. -, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989), the defendant newspaper stated explicitly that plaintiff, a candidate for judicial office, had engaged in "dirty tricks.” In support of this accusation the newspaper reported statements by a witness who claimed that plaintiff had promised the witness and her sister jobs and a vacation trip if the sister would testify to bribery activity in the incumbent judge’s office. In fact, as the jury found, the plaintiff had made no such promises and the published report of such promises was, therefore, false. Because the "dirty tricks” statement was specifically tied to the (falsely) reported promises, the statement as to dirty tricks was also, necessarily, false.