This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Crookston Times Printing Co.,
d/b/a Crookston Daily Times,
Polk County District Court
File No. C998656
Kay Nord Hunt, Stephen C. Rathke, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for appellant)
Paul R. Hannah, 2625 Firstar Center, 101 East 5th Street, St. Paul, MN 55101-1808; and
Kenneth F. Johannson, Johannson, Taylor, Rust & Fagerlund, PO Box 605, 407 North Broadway, Crookstone, MN 56716 (for respondent)
Dennis McDaniel, 805 North Point, Crookston, MN 56716 (respondent pro se)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.*
Appellant Gerardo Moreno challenges the trial court’s amended order granting respondent’s motion for summary judgment. The trial court ruled that there were no genuine issues of material fact concerning whether a defamatory newspaper article was published with actual malice. Because we conclude that there are no genuine issues of material fact and that the trial court did not err, we affirm.
Gerardo Moreno, a Crookston police officer, brought a defamation claim against respondent Crookston Times Printing Co., d/b/a Crookston Daily Times (Times), and Dennis McDaniel arising out of a March 10, 1998 meeting of the Crookston city council. The city council allows anyone in attendance to have an opportunity to speak publicly before a meeting concludes. At the close of the March 10 meeting, Dennis McDaniel received permission to address the council. He stated that the children in Crookston
got problems with drugs and it’d help if we could get Mr. Moreno to quit dealing with drugs out of the back of his police car.
McDaniel also claimed that Moreno’s drug dealing was common knowledge among the kids and that he knew of witnesses to the dealing. Consistent with the city council’s practice, McDaniel’s statements were noted in the council minutes. Times city editor Mike Christopherson was present at the meeting and heard the statement. Although Christopherson wrote an article about the council meeting in the March 11, 1998 Times, he did not include any reference to McDaniel’s statements, because Christopherson felt that “it wasn’t a lot to go on at that point.”
Days after the meeting, an acquaintance of Christopherson’s asked him if he was going to do anything about the story and stated that “[e]veryone [knew]” that the allegations were true. On Friday morning, March 20, 1998, the Times publisher, Randy Hultgren, encouraged Christopherson to check into the story, given the many rumors circulating about it. While Christopherson worked at his desk that morning, he overheard someone state that local radio station KROX had reported that some police officers had been arrested for selling drugs.
Christopherson met with Crookston Police Chief Paul Monteen that afternoon and explained that there were rumors circulating about the story. Monteen replied that Moreno had not been arrested, but stated that the department would be remiss if it did not investigate the allegations and that an outside authority was conducting the inquiry. Monteen also told Christopherson that he had asked McDaniel if he wished to file a formal complaint against Moreno, but McDaniel declined to do so. After meeting with Monteen, Christopherson went to the KROX radio station to see if it, in fact, had broadcast a story of a police officer’s arrest. He discovered that the station had never reported such a story.
At that point, Christopherson decided to write a story about McDaniel’s allegations. Given the nature of the allegations, Christopherson took the precaution of giving the story to Hultgren for review. Hultgren approved the story. The title and text of the article were as follows:
CPD reacting to accusation
By Mike Christopherson
The Crookston Police Department is following up on a citizen’s accusation of wrongdoing by a police officer made at the conclusion of the March 10 City Council meeting.
Council meetings are open to public comment at their conclusion, but rarely are any comments made. At the meeting, however, as ward six alderman and Vice-Mayor Frank Lindgren—sitting in for the absent Mayor Don Osborne—prepared to adjourn for the evening, ward one resident Dennis McDaniel asked for an opportunity to speak.
When recognized and told he had the floor, McDaniel said that young people in Crookston have a lot of problems, including drugs, and he said their drug problems would be decreased if someone would do something to stop Crookston Police officer Gerry Moreno from selling drugs out of the trunk of his squad car. McDaniel also said he had witnesses.
After getting McDaniel’s name and address, Lindgren said the council would take the matter under advisement.
Police Chief Paul Monteen on Friday limited his comments on the matter, saying only that the police department “would be remiss” not to see that McDaniel’s accusation is followed up on. When the process is concluded, Monteen said more information would be forthcoming.
After McDaniel’s comments at the March 10 meeting, Monteen spoke with him.
“I asked him if he wanted to make a formal complaint, and he declined to do so,” Monteen said. “I haven’t talked to him since.”
As Friday wore on, rumors of an officer or officers being “busted” for wrongdoing circulated around town. Monteen said the rumors were untrue. He said he had been at a training session with officer Moreno for the better part of Friday.
If McDaniel’s name sounds familiar, that’s because it is. He’s an outspoken citizen, and is a frequent contributor to the Times’ Editorial Page.
The article appeared on the lower left front page of the newspaper, bordered in red ink.
Moreno demanded a retraction of the story on April 10, 1998. On April 15, 1998, Christopherson spoke with McDaniel. McDaniel stood by his story but said that his witnesses were scared and he would not identify them. Christopherson attempted to contact one individual who allegedly had information about the allegations, but discovered that the individual had died. On April 16, 1998, Christopherson talked with the U.S. Drug Enforcement Agency about the case and an agent informed him that the investigation was complete and yielded nothing to support McDaniel’s statements. On April 20, 1998, the Times published the following article:
Investigation finds nothing improper
By Mike Christopherson
An investigator with the federal Drug Enforcement Agency office in Fargo had investigated allegations of wrongdoing made by a local citizen against a Crookston Police officer at a recent City Council meeting, and found no evidence of wrongdoing.
“My investigation is over and done with, I found nothing in regard to the allegations, so it’s done.” DEA investigator Todd Taylor said. “I did do a report, but that’s as far as it went because nothing was found.”
At the conclusion of the March 10 City Council meeting, Crookston resident Dennis McDaniel stood up and accused officer Gerardo Moreno of wrongdoing.
Police Chief Paul Monteen said he asked McDaniel immediately after he went public with his allegations if he wanted to file a formal complaint, and McDaniel declined to do so.
Respondent published this article rather than a retraction because its CEO, Ken Sorata, felt that the March 23 article was not defamatory and that a retraction was not necessary.
This case has an extensive procedural history. Moreno brought suit against the Times and McDaniel, alleging that the Times defamed him by publishing the article with negligent and reckless disregard for truth and with malice. Prior to trial, the Timesmoved for judgment on the pleadings or summary judgment on the ground that the March 23 article was protected by the fair report of a public proceeding privilege. The trial court ruled that the article was privileged because it was a fair and accurate report of the events at a city council meeting and granted the Times’ motion. The trial court ruled that Restatement (Second) of Torts § 611 is the governing law in Minnesota. This section states that the fair and accurate privilege
exists even though the publisher himself does not believe the defamatory words he reports to be true and even when he knows them to be false.
Restatement (Second) of Torts § 611 cmt. a. Under section 611, a showing of malice will not defeat the privilege. The trial court, therefore, found a malice analysis unnecessary and granted summary judgment, dismissing the complaint as to the Times.
Moreno challenged the trial court’s order granting summary judgment. This court reversed and remanded, holding that section 611 does not state Minnesota law and that a showing of malice can defeat the fair and accurate reporting privilege. See generally Moreno v. Crookston Times Printing Co., 594 N.W.2d 555, 559 (Minn. App. 1999), rev’d and remanded, 610 N.W.2d 321 (Minn. 2000).
The Times appealed to the supreme court and Moreno cross-appealed. The supreme court reversed this court’s decision and held that the fair and accurate reporting privilege applies to reports of events at a city council meeting and that a showing of common law malice does not defeat the privilege. Moreno, 610 N.W.2d at 333. But the court held that the privilege is not absolute. It can be defeated by a showing that the report is not fair and accurate. See id. Otherwise stated, the privilege only applies if the report was truly fair and accurate. See id. at 331. The privilege does not apply if the report includes material extraneous to the actual event:
Even though a fair and accurate report of a city council meeting is privileged, that privilege can be defeated if additional contextual material, not part of the proceeding, is added that conveys a defamatory impression or comments on the veracity or integrity of any party. The entire report then would be subject to evaluation as any other allegedly defamatory statement.
Id. at 333. Applying this standard to the case, the supreme court noted that the March 23 article was not limited to the events of the meeting. See id. at 334. Rather, it referenced events that occurred subsequent to the meeting. See id. Therefore, the supreme court remanded the case to the trial court to determine whether the fair and accurate reporting privilege applied to the article or, if not, whether the article was defamatory or other privileges applied. See id.
On remand, the trial court again granted summary judgment for the Times and issued an amended order. The trial court held that the fair and accurate privilege did not protect the March 23 article because the article described events that were extraneous to McDaniel’s statements at the city council meeting. Because the article was not protected, a showing of actual malice would allow Moreno to recover damages. But the trial court ruled that Moreno could not recover damages here because he did not prove by clear and convincing evidence that the Times acted with actual malice in publishing the article. This appeal follows.
D E C I S I O N
When considering an appeal from a summary judgment motion, this court “consider[s] whether there are genuine issues of material fact and whether the district court erred in applying the law.” Buchanan v. Minnesota State Dep’t of Health, 573 N.W.2d 733, 736 (Minn. App. 1998) (citing State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990)). We view the evidence on appeal in the light most favorable to the nonmoving party. See id. (citing Fabio v. Bollomo, 504 N.W.2d 758, 761 (Minn. 1993)). Since this case presents a constitutional question, however, independent review of the record is necessary. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 1958 (1984) (noting that appellate courts must review the record independently in First Amendment cases to avoid unconstitutional intrusions into the realm of free expression). The Minnesota Supreme Court affirmed this standard in Diesen v. Hessburg, 455 N.W.2d 446, 452 (Minn. 1990) (explaining that the court follows the “independent review standard set forth by the United States Supreme Court” in examining the record for evidence of actual malice).
The tort of defamation consists of three elements. First, the report must be disseminated to someone other than the plaintiff. Woody v. Krueger, 374 N.W.2d 822, 824 (Minn. App. 1985). Second, the report must be “false.” Id. (quoting Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980)). Third, the report must be harmful to the plaintiff’s reputation and “lower him in the estimation of the community.” Id. (quoting Stuempges, 297 N.W.2d at 255). The trial court in this matter ruled that the March 23 article was defamatory. But that does not conclude the analysis.
The First Amendment allows the press to publicize misconduct by public figures. See Diesen, 455 N.W.2d at 453. Moreno is a public figure. See Hirman v. Rogers, 257 N.W.2d 563, 566 (Minn. 1977) (noting that police officers are public officials). He has the burden to prove that the Times published the March 23 article with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726 (1964). The standard for proving actual malice is high. “Actual malice” means
that the statement was false and that it was written or spoken “with knowledge that it was false or with reckless disregard of whether it was false or not[.]”
Beatty v. Ellings, 173 N.W.2d 12, 18 (Minn. 1969) (quoting New York Times Co., 376 U.S. at 279, 84 S. Ct. at 726). The Minnesota Supreme Court described actual malice as
more than mere negligence and probably even more than highly unreasonable conduct. * * * Mere errors in judgment are not sufficient to constitute actual malice and a defamatory statement must have been made with an awareness of its probable falsity, as demonstrated by “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” * * * [A] public official * * * must prove that the publication was made with a high degree of awareness that it was probably false.
Hirman, 257 N.W.2d at 566 (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323, 1325 (1968)). The supreme court has also characterized actual malice as “actual ill will, or a design causelessly and wantonly to injure plaintiff.” McBride v. Sears, Roebuck & Co., 306 Minn. 93, 98, 235 N.W.2d 371, 375 (1975). Malice is never presumed, and Moreno bears the burden of proving the existence of malice with “convincing clarity.” Rose v. Koch, 278 Minn. 235, 261, 154 N.W.2d 409, 427 (1967) (quoting New York Times Co., 376 U.S. at 285, 84 S. Ct. at 729).
Courts may consider a variety of factors and circumstances in deciding whether an item was published with actual malice. See Karnes v. Milo Beauty & Barber Supply Co., 441 N.W.2d 565, 568 (Minn. App. 1989) (“Malice may be proved by extrinsic evidence of personal ill feeling or by intrinsic evidence such as the exaggerated language or extent of publication.”). One factor relates to the investigative activities undertaken by a newspaper. If the publisher makes insufficient efforts to ascertain the truth or falsity of the story, a finding of malice is more likely. See Mahnke v. NW Publ’ns, Inc., 280 Minn. 328, 337, 160 N.W.2d 1, 7-8 (1968) (describing an earlier opinion finding liability “because of a reckless failure to find out the true facts before publication” of a story that related to a police officer’s supposed refusal to arrest a known child molester); Hammersten v. Reiling, 262 Minn. 200, 207, 115 N.W.2d 259, 265 (1962) (finding that publication of an article was malicious because defendant presented no evidence that his charges were true or that he attempted to investigate them). A reporter’s knowledge that he should verify the information behind the story before its publication and the reporter’s subsequent failure to do so can also lead to a finding of malice. See Mahnke, 280 Minn. 341, 160 N.W.2d at 10.
Second, the length of time between the event and the publication of an article is also a relevant factor. See id. at 340, 160 N.W.2d at 9. A long period of time may lead to a finding of malice because the publisher presumably had more time to investigate the truth or falsity of the story. See id. Third, the “defamatory character” of an article can lead to a finding of malice. Id. (noting that an article accusing a police officer of refusing to arrest a known child molester was defamatory in nature). Fourth, the Mahnke court noted that the mechanical details of publication such as title and placement with the publication may be relevant. See id. (noting that the article’s title and placement on the front page could lead the casual reader to believe that the police officer may have been involved in child molestation). Finally, other factors for consideration include the “inherent [improbability]” of the statement and reliance on a dubious source of information. St. Amant, 390 U.S. at 733, 88 S. Ct. at 1326.
Moreno’s primary argument in support of his claim that the Times published the article with reckless disregard of its truth or falsity is that the Times failed to conduct an adequate investigation before publishing the article. In support of his position, Moreno notes that Christopherson did not contact him or McDaniel before the story ran. Even if Moreno’s allegation were true, this court has held that a failure to conduct a thorough investigation, in and of itself, does not indicate actual malice. See Connelly v. NW Publ’ns, Inc., 448 N.W.2d 901, 904 (Minn. App. 1989) (“Mere failure to investigate an article before publication can never, standing alone, establish actual malice.”), review denied (Minn. Feb. 21, 1990). This rule is not necessary to the resolution of this case, however, because Christopherson did some investigation of the allegations before the article appeared. The trial court found that Moreno failed to present clear and convincing evidence of the Times’s actual knowledge or reckless disregard of the truth or falsity of the statements. We agree.
Christopherson decided not to publish McDaniel’s allegations in his March 11 article because he felt that they were an insufficient basis for a story. Christopherson specifically chose not to write about the story until he had determined there actually was a story and was able to gather more information about it. In the two weeks following the meeting, Christopherson heard rumors about the story from his publisher and an acquaintance. He also overheard someone say that they had heard of an officer’s arrest on the radio. Christopherson met with Monteen to determine whether the rumors were true or false. Monteen informed him that McDaniel had not filed a formal complaint and Moreno had not been arrested, but that there was a routine investigation in process. Christopherson subsequently confirmed that no story of arrest had been aired by checking with KROX.
Christopherson, therefore, undertook to determine the truth or falsity of the story. Examples of publication with actual malice include “where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call.” St. Amant, 390 U.S. at 732, 88 S. Ct. at 1326. None of these circumstances are present. Although Christopherson may not have conducted the investigation that Moreno alleges he should have, he made an adequate investigation into the allegations and did not publish the story while entertaining serious doubts about its veracity.
Moreno alleges that Christopherson should not have relied on McDaniel because he was a dubious source of information. See id. at 733, 88 S. Ct. at 1326 (noting that reliance on a questionable source of information is a factor in malice analysis). The record indicates that McDaniel harbored conspiracy theories about “auxiliary” law enforcement officers tracing his movements. Yet at the time the March 23 article was published, Christopherson had no specific knowledge of McDaniel’s unconventional beliefs. All he knew was that McDaniel frequently wrote letters to the editor, expressing his views on religious issues. In addition, Christopherson based his story, in part, on his interview with Monteen. He specifically stated that he was not solely relying on McDaniel’s allegations, because he felt that they did not form a sufficient basis for a story. Therefore, Christopherson’s use of McDaniel as one source for the article does not lead to the conclusion that the Times acted with actual malice.
Moreno’s other allegations of actual malice are also insufficient to meet the standard. Moreno alleges that the fact that Christopherson waited almost two weeks after the city council meeting to publish the article is proof of actual malice because Christopherson had time to investigate the truth or falsity of the story before publishing it. This argument overlooks the fact that Christopherson did some investigation of the allegations.
The Times’s decision not to publish a retraction of the article is also insufficient to support a finding of malice. Rather than retract the story, Christopherson continued to investigate the allegations post-publication and then published the March 28 article stating that the DEA’s investigation found nothing to support McDaniel’s statements.
Moreno also argues that Christopherson should have anticipated that Moreno’s Hispanic heritage and name would lead community residents to give more credence to the allegations. While Christopherson testified in his deposition that Moreno’s ethnic heritage might give the allegations more credence in the minds of some members of the community, Moreno’s ethnicity did not affect his view of the story. Appellant’s claim that the Times was partially motivated by racial animus in publishing the article is unsupported by the record.
Moreno claims that the Times’s publication of the name of an uncharged individual was inconsistent with and a violation of its own, internal policy and, therefore, is evidence of malice. Although the inclusion of a name of an uncharged individual may not have been the newspaper’s standard procedure, there is no evidence in the record to indicate that this decision stemmed from a malicious desire to harm Moreno.
Finally, Moreno claims that the red border placed around the March 23 article evinced an intent to make the article more noticeable and, therefore, is indicative of malice. The color of the border was an editorial decision determined by the printing staff without input from Christopherson. An editorial decision is “within the Newspaper’s discretion, as long as the final product was not published with reckless disregard for truth or falsity.” Diesen, 455 N.W.2d at 453. As the trial court found, no other evidence supports the argument that the Times acted with reckless disregard of the truth or falsity of the statements. Thus, this argument fails.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.