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Maethner v. Someplace Safe, Inc.

Supreme Court of Minnesota

June 26, 2019

Kurt A. Maethner, Respondent,
Someplace Safe, Inc., Appellant, Jacquelyn Jorud, f/k/a Jacquelyn Hanson Maethner, Appellant.

          Court of Appeals Office of the Appellate Courts

          Marshall H. Tanick, Teresa J. Ayling, Meyer Njus Tanick, PA, Minneapolis, Minnesota, for respondent.

          Margaret A. Skelton, Christian R. Shafer, Timothy A. Sullivan, Ratwik, Roszak & Maloney, P.A., Minneapolis, Minnesota, for appellant Someplace Safe, Inc.

          Michael J. Morley, Morley Law Firm, Ltd., Grand Forks, North Dakota; and John J. Bursch, Bursch Law PLLC, Caledonia, Michigan, for appellant Jacquelyn Jorud.

          Daniel J. Cragg, Eckland & Blando LLP, Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

          Lindsay Brice, Minnesota Coalition Against Sexual Assault, Saint Paul, Minnesota; and Elizabeth Richards, Coalition for Battered Women, Saint Paul, Minnesota, for amici curiae Minnesota Coalition Against Sexual Assault and Minnesota Coalition for Battered Women.

          Eugene Volokh, UCLA School of Law, Los Angeles, California; and John Arechigo, Arechigo & Stokka, P.A., Saint Paul, Minnesota, for amici curiae Profs. Eugene Volokh, et al.

          Amy E. Lauricella, Standpoint, Minneapolis, Minnesota; Lisa C. Stratton, Christy L. Hall, Gender Justice, Saint Paul, Minnesota; Evon M. Spangler, Domestic Abuse Legal Advocacy Center, PSC, Saint Paul, Minnesota; Sarah J. Runchey, Mary Catherine Lauhead, and Michael D. Dittberner, Minnesota State Bar Association Family Law Section, Minneapolis, Minnesota; and Ben M. Henschel, David L. Olson, Minnesota Chapter of the American Academy of Matrimonial Lawyers, Minneapolis, Minnesota, for amici curiae Standpoint, et al.


         1. If the challenged statements in a defamation action involve a matter of public concern, a private plaintiff may not recover presumed damages absent a showing of actual malice. To determine whether speech addresses a matter of public concern, the court considers the totality of circumstances, including the content, form, and context of the speech.

         2. In the absence of evidence creating an issue of fact that an advocacy organization had reason to doubt the veracity of a former client's statements, the organization did not breach its duty of care by failing to investigate that client's statements relating to domestic violence before publishing those statements.

         Affirmed in part, reversed in part, and remanded.


          GILDEA, Chief Justice.

         This defamation appeal requires us to strike a delicate balance between the State's interest in providing redress for citizens claiming reputational injury and the free speech protections the First Amendment provides. Respondent Kurt Maethner brought this defamation and negligence action against appellant Someplace Safe, Inc., an advocacy organization for victims of domestic violence, and appellant Jacquelyn Jorud, his former wife, contending that their statements accused him of committing domestic violence. The district court granted summary judgment to Someplace Safe and Jorud, but the court of appeals reversed and remanded for trial. The court of appeals concluded that Maethner provided sufficient evidence of damages and breach of duty to warrant a trial on his claims. Because we conclude that the damages question requires a remand, and that summary judgment was properly awarded to Someplace Safe on negligence, we affirm in part, reverse in part, and remand to the district court for further proceedings consistent with our opinion.


         Kurt Maethner and Jacquelyn Jorud married in 1995, separated in 2008, and divorced in 2010. During the separation and divorce proceedings, Jorud was a client of Someplace Safe, a nonprofit organization that provides services for victims of domestic violence. A dissolution decree was issued in October 2010. That dissolution decree did not reference domestic violence. Jorud never sought an order for protection against Maethner and no criminal charges were filed against Maethner for domestic violence. After the divorce, Jorud kept "Maethner" as her legal surname, but also used "Jorud" after she remarried.

         A few years after the divorce, Jorud began volunteering with Someplace Safe and speaking at community events about her experience as a survivor of domestic violence. On October 4, 2013, Jorud posted the following to her Facebook page, under the name Jacki Hansen Maethner: "By God's grace I am a survivor. Because of His love I am living with many blessings today! Domestic violence is real."

         In 2014, Someplace Safe presented Jorud with a "Survivor Award" at its 35th anniversary fundraising banquet. To advertise the event, Someplace Safe issued a press release, which noted that "Jacki Maethner Jorud" would be receiving the award. Several local newspapers republished this information. Someplace Safe presented Jorud with a certificate at the banquet, which recognized her for "empowering [herself] and inspiring others to stand against violence."

         After the banquet, Someplace Safe and Jorud posted pictures on Facebook of Jorud holding the award certificate. The Facebook page of Someplace Safe has over 1, 000 followers. In addition, Jorud wrote an article for the fall 2014 newsletter of Someplace Safe that was published to approximately 2, 500 people. The newsletter was seven pages long, with the last page containing a request for donations.

         Jorud's article was approximately one page long, was signed "Jacki Maethner Jorud," and was accompanied by a photo of Jorud with her husband and stepchildren. The article did not mention Maethner by name nor did it specifically state that the domestic violence happened during Jorud's prior marriage to Maethner. Nonetheless, Maethner identifies the following statements from the article as defamatory:

• "I was asked to write a short article celebrating the fact of not just surviving domestic violence, but thriving through recovery."
• "Getting out of an unhealthy, threatening and dangerous relationship is hard. It is scary."
• "I don't know if there will ever be a time when I can be certain I am no longer being stalked and watched."
• "I didn't want to live in a constant state of fear."
• "I didn't want daily conflict and fighting."

         Months later, on February 1, 2015, Jorud posted the following to her Facebook page: "I, Jacki Maethner, will continue to speak out and educate against domestic violence. Neither the uncomfortableness of the subject, nor intimidation from others will keep me from speaking out. I am not just a survivor. I have learned to thrive in a life rich with blessings of LOVE, RESPECT, KINDNESS and EQUALITY."

         Maethner sued Someplace Safe and Jorud for defamation. Maethner alleges that Someplace Safe defamed him by presenting Jorud with the Survivor Award at its banquet, publicizing the award in its press release and on its Facebook page, and publishing Jorud's article in its fall 2014 newsletter. Maethner alleges that Jorud defamed him by posting pictures and statements on Facebook that identified her as a survivor of domestic violence, as well as writing the article for Someplace Safe's newsletter. Although the statements did not identify him by name, Maethner asserts that a reasonable person in the community would understand the statements to refer to him because the Maethner surname is not common and his marriage to Jorud was well known in the community. Maethner further alleges that Someplace Safe was negligent in publishing the newsletter article without investigating the accuracy of Jorud's statements. Maethner requests damages for emotional harm, including anxiety, headaches, stomach aches, and difficulty sleeping. He also argues that his damages may be presumed because the statements accuse him of "criminal behavior or moral turpitude" and such statements are "deemed to be defamatory per se."

         Someplace Safe and Jorud each filed motions for summary judgment. The district court determined that there was a genuine issue of material fact as to whether the defamatory statements were "about" Maethner, even though none of the statements explicitly named him.[1]

         Nonetheless, the district court granted summary judgment to Someplace Safe and Jorud on the defamation claims, concluding that (1) the statements were protected by a qualified privilege, and Maethner failed to establish a genuine issue of material fact on malice; and (2) Maethner had not shown proof of actual damages. The district court also granted summary judgment to Someplace Safe on the negligence claim, concluding that Someplace Safe did not have a duty to investigate Jorud's statements.

         The court of appeals reversed and remanded. See Maethner v. Someplace Safe, Inc., 907 N.W.2d 665');">907 N.W.2d 665, 675-76 (Minn.App. 2018). The court of appeals rejected each of the bases on which the district court relied in granting summary judgment. First, the court of appeals concluded that "the allegedly defamatory statements were not protected by a qualified privilege because they were made to raise funds for Someplace Safe and not to protect Jorud or to report a crime." Id. at 667. Next, the court of appeals concluded that Maethner must prove negligence as an element of his defamation claim against Someplace Safe, and therefore, he "does not have a separate negligence claim" against Someplace Safe. Id. at 673. In addition, the court of appeals determined that Someplace Safe owed a duty to exercise reasonable care before publishing Jorud's statements, and "[w]hether Someplace Safe breached its duty of reasonable care raised a fact question for the jury." Id. at 674. Finally, the court of appeals said that "Maethner produced sufficient evidence of damages to survive summary judgment." Id. Therefore, the court of appeals remanded for trial on Maethner's defamation claims. Id. at 675-76.

         Someplace Safe and Jorud each petitioned for further review. We granted both petitions.


         This is a defamation case. To provide a framework for our analysis, we begin with some general principles. Under the common law, a plaintiff pursuing a defamation claim "must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in [an] unprivileged publication to a third party; (c) that harmed the plaintiff's reputation in the community."[2] Weinberger v. Maplewood Review, 668 N.W.2d 667');">668 N.W.2d 667, 673 (Minn. 2003). As the second element suggests, the common law recognizes privileges, both absolute and qualified, that operate to defeat a defamation claim. Harlow v. State Dep't of Human Servs., 883 N.W.2d 561, 569 (Minn. 2016). A qualified privilege is overcome if the plaintiff demonstrates that the defendant made the statement with malice. Bahr v. Boise Cascade Corp., 766 N.W.2d 910');">766 N.W.2d 910, 920 (Minn. 2009). Malice under the common law means that the defendant made the statement "from ill will and improper motives, or causelessly and wantonly for the purpose of injuring the plaintiff." Stuempges v. Parke, Davis & Co., 297 N.W.2d 252');">297 N.W.2d 252, 257 (Minn. 1980) (citation omitted) (internal quotation marks omitted).

         To avoid chilling constitutionally protected speech, the Supreme Court has imposed prerequisites to recovery in certain types of defamation actions. For example, the Court has held that public figures and public officials must meet a higher standard when challenging defamatory statements, requiring proof of actual malice.[3] See generally Curtis Publ'g Co. v. Butts, 388 U.S. 130, 155 (1967); New York Times Co. v. Sullivan, 376 U.S. 254, 278-80 (1964). To satisfy the constitutional actual-malice standard, a statement must be "made with the 'knowledge that it was false or with reckless disregard of whether it was false or not.'" Weinberger, 668 N.W.2d at 673 (quoting New York Times, 376 U.S. at 279-80); see also Moreno v. Crookston Times Printing Co., 610 N.W2d 321, 329 (Minn. 2000) (defining "actual malice" and noting that "it is important to distinguish between 'actual malice' and 'common law malice' ").

         With this framework in mind, we turn to the issues raised here. First, we address whether Maethner produced sufficient evidence of damages to survive summary judgment, including whether he may rely on presumed damages. Second, we address whether Someplace Safe had a duty to investigate the truthfulness of Jorud's statements before publishing the statements. Because this case comes to us on appeal from summary judgment, we conduct a de novo review to determine "whether there are any genuine issues of material fact and whether the district court erred in its application of the law to the facts." Capistrant v. Lifetouch Nat'l Sch. Studios, Inc., 916 N.W.2d 23, 27 (Minn. 2018). In making that determination, "we view the evidence in the light most favorable to the nonmoving party and resolve all doubts and factual inferences against the moving parties." 328 Barry Ave., LLC v. Nolan Props. Grp., LLC, 871 N.W.2d 745, 751 (Minn. 2015).[4]


         We turn first to the issue of damages. The damages issue presented here focuses on the third element of a defamation claim-reputational harm. Weinberger, 668 N.W.2d at 673. The district court dismissed Maethner's defamation claims on summary judgment, concluding that Maethner did not offer evidence to create an issue for trial on reputational harm. The court of appeals reversed. On appeal, Maethner argues that he offered sufficient proof of damages to survive summary judgment. He contends that he suffered emotional-harm damages as result of the defamatory statements. He also argues that he is entitled to presumed damages because his claims are for defamation per se. We consider each aspect of Maethner's damages argument in turn.


         We first consider Maethner's argument that his defamation claims survive because he offered proof of emotional-harm damages. Maethner asserts that he is entitled to recover damages for his emotional distress, which includes "headaches, stomach aches, difficulty sleeping, and similar ailments." Someplace Safe and Jorud argue that Maethner's emotional-harm damages are not recoverable under our decision in Richie v. Paramount Pictures Corp., which held that "emotional damages are not compensable" in a defamation action "absent harm to reputation." 544 N.W.2d 21, 28 (Minn. 1996).

         We explained in Richie that a defamation plaintiff generally must establish harm to reputation because defamation actions compensate for injury to reputation, in contrast to invasion of privacy torts, which "compensate for 'mental distress from having been exposed to public view.'" Id. (quoting Time Inc. v. Hill, 385 U.S. 374, 384-85 n.9 (1967)). Accordingly, we concluded that emotional-harm damages are allowed in Minnesota only as "parasitic" damages. Id. at 27. Put another way, emotional-harm damages" 'are insufficient in themselves to make the slander actionable, but once the cause of action is made out without them, they may be tacked on as "parasitic" to it.'" Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 112, at 794-95 (5th ed. 1984)). Maethner does not ask us to reconsider this aspect of Richie.

         Instead, on appeal, Maethner cites to his deposition where he testified that others saw the statements at issue. But, as the district court found, Maethner also testified at his deposition that he did not know whether the statements at issue "had any impact on his reputation." And he "could not name anyone who thought ill or less of him because of the statements." Because Maethner did not offer evidence to satisfy the "reputational harm prerequisite" that Minnesota law imposes in defamation actions, Richie, 544 N.W.2d at 28, his defamation claims fail as a matter of law unless he can recover presumed damages. We turn to that question now.


         Maethner argues that he can recover presumed damages because "[a]ccusations of criminal behavior or moral turpitude, like those made here, are deemed to be defamatory per se." In cases of defamation per se, "the common law allowed harm to reputation to be presumed." Richie, 544 N.W.2d 21 at 25. And we have held that defamation per se is "actionable without any proof of actual damages." Stuempges, 297 N.W.2d at 255. Courts allow presumed damages because statements that are defamatory per se are "virtually certain to cause serious injury to reputation, and that this kind of injury is extremely difficult to prove."[5] Carey v. Piphus, 435 U.S. 247, 262 (1978).

         Statements that we have recognized as defamatory per se include "false accusations of committing a crime and false statements about a person's business, trade, or professional conduct." Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655');">401 N.W.2d 655, 661 (Minn. 1987). We agree with Maethner that some of the challenged statements here, when viewed in the light most favorable to him, could be capable of being understood as accusing him of a crime-namely, domestic assault, see Minn. Stat. § 609.2242 (2018), and stalking, see Minn. Stat § 609.749 (2018).

         That the statements could be construed as involving criminal behavior, however, does not end the analysis. This is because, like all laws regulating speech, the doctrine of defamation per se cannot offend the constitutional guarantees of the First Amendment. See Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 481 (Minn. 1985). We have recognized that "personal reputation has been cherished as important and highly worthy of protection" throughout history. Id. at 491. But at the same time, courts cannot offer recourse for injury to reputation at the cost of chilling speech on matters of public concern, which "occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." Snyder v. Phelps, 562 U.S. 443, 452 (2011) (internal quotation marks omitted) (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)). We must determine how that balance between cherished reputational rights and free speech protections tips here on Maethner's claim of presumed damages.


         The district court and court of appeals grounded their presumed-damages rulings on Richie v. Paramount Pictures Corp., so we begin our analysis there. Richie arose from an episode of the Maury Povich Show, "a nationally syndicated television program." 544 N.W.2d at 23. The plaintiffs' goddaughter appeared on the show to discuss her successful civil suit against her parents arising out of sexual abuse. Id. at 23-24. Prior to filming, the goddaughter's attorney provided the show with a photograph, which she believed depicted the goddaughter with her parents. Id. at 24. The photograph, in fact, depicted the goddaughter with the plaintiffs. Id. The photograph was shown during the episode while the goddaughter was discussing the abuse, which suggested that the plaintiffs were the perpetrators. Id. After the show aired, the plaintiffs sued the producer of the show, the production company, and the goddaughter's attorney for defamation. Id. at 23.

         In analyzing whether the plaintiffs could recover presumed damages, we described Supreme Court precedent as holding that "in a private plaintiff defamation action against a media defendant speaking on a matter of public concern, states may not constitutionally 'permit recovery of presumed . . . damages, at least when liability is not based on a showing of falsity or reckless disregard for the truth.'" Id. at 25 (alteration in original) (footnote omitted) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974)). Applying this rule, we held that "damages cannot be presumed" and "a showing of actual harm to reputation" is required "where the defamatory statements were made by the media, involved a matter of public concern, and there have been no allegations of actual malice." Id. at 26, 28.

         The district court in this case relied on Richie to conclude that Maethner could not recover presumed damages "based on the facts and evidence presented" and "in the absence of any showing of malice or knowledge of falsity or reckless disregard for the truth." But the court of appeals ruled that the district court's reliance on Richie was "misplaced." Maethner, 907 N.W.2d at 675. According to the court of appeals, "Richie is inapposite because it considered First Amendment restrictions on defamation claims against the media," whereas this case involves statements made by a private individual and "a nonprofit organization that was soliciting donations." Id. Therefore, the ...

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