MacDonald appeal may pivot on ‘public figure’ meaning

Listen to this article

Whether a political candidate’s public-figure status switches on and off—and when that happens—was a central focus last week during oral arguments in Michelle MacDonald’s defamation-suit appeal.

A Minnesota Court of Appeals panel, led by presiding Judge Lucinda Jesson, heard arguments in the case on Dec. 12.

If MacDonald is a public figure—something her attorney Karlowba Adams Powell does not concede—it is only during periods from her official candidacy filing to the end of that election cycle, MacDonald’s attorney said.

During periods in between campaigns, MacDonald is not a public figure, her lawyer argued. If the court accepts that, MacDonald would not have to prove that “actual malice” lay behind some of respondent Michael Brodkorb’s writings and her case might survive.

MacDonald is appealing Ramsey County District Court Judge Richard H. Kyle, Jr.’s March 1 grant of summary judgment to Brodkorb, which dismissed her suit. She brought the case to the Court of Appeals on April 30.

As “a perennial candidate for statewide office,” Kyle ruled, MacDonald is a public figure. She has challenged incumbent Supreme Court justices three times since 2014, netting 825,770 votes—44% of the total—in a losing 2018 bid to unseat Associate Justice Margaret Chutich. Meanwhile, MacDonald said Thursday, she plans to run again in 2020.

Being tagged a public figure means MacDonald must demonstrate that Brodkorb showed “actual malice under a heightened clear-and-convincing standard,” Kyle ruled. She can’t do that, because Brodkorb’s writing “was either factually accurate or there is an absence of issues of material facts relating to actual malice.”

In her appellant’s brief, Adams Powell asserts that Kyle erred. There are many active fact disputes, she wrote. Kyle also wrongly denied MacDonald due process by dismissing her case without requiring Brodkorb to answer her complaint and then ruled without granting MacDonald time for discovery.

However, under questioning from Jesson, Adams Powell acknowledged she never filed District Court motions seeking either discovery or a delay of summary judgment.

Adams Powell also contends that Kyle was wrong to declare MacDonald a public figure at all. His finding conflates the concepts of “public official” and “public figure,” according to her brief, because Kyle relied on defamation cases involving elected county attorneys. But MacDonald was never elected.

“This constituted a misapplication of the law in the context of the motions,” Adams Powell wrote.

Case’s ‘linchpin’

During oral arguments, Jesson called the public figure question the case’s “linchpin.”

If the Court of Appeals rejects the District Court’s finding and instead rules MacDonald is a public figure only during active campaigns, Jesson asked Adams Powell, are there claims against Brodkorb that would not be subject to the actual-malice bar?

Yes, the attorney replied, because Brodkorb’s defamation has been ongoing since 2015 and MacDonald was not a candidate when some of that allegedly defamatory material got published.

“And so how does that work as a matter of law?” asked Court of Appeals Judge Kevin Ross. “A person floats in and out of public figure status?”

“If the court determines that she’s a public figure when she’s running for Supreme Court justice, then yes, that would absolutely be the case,” Karlowba Powell replied. “Because, just as a lay person sitting here today, she is not a public figure.”

MacDonald accuses Brodkorb of committing at least seven acts of defamation, all relating to three main allegations.

First, Brodkorb is accused of repeatedly writing on his website, MissinginMinnesota.com, that Lakeville police considered MacDonald a “person of interest” in the disappearance of two teen-aged girls. Several people were indicted and convicted in that case, including the girls’ mother, Sandra Grazzini-Rucki, MacDonald’s legal client. But MacDonald was never arrested or charged.

Second, Brodkorb repeatedly ran an unflattering photo of MacDonald, which MacDonald brands “a false image.” Third, Brodkorb allegedly falsely published information that MacDonald had been convicted for DUI. That is untrue. But Brodkorb maintains he never reported that she has a DUI conviction.

The photo came up only fleetingly during oral arguments and the DUI not at all. The “person of interest” matter was discussed, however, resulting in an odd exchange between Ross and Adams Powell.

‘The only evidence’

Adams Powell said Brodkrob demonstrated malice when he publicly tarnished MacDonald as a “person of interest,” despite knowing it to be untrue.

But the evidence suggests Brodkorb got that information from law enforcement, Ross said. Nonetheless, Adams Powell said, “He was advised that this was not true and he was asked to cease and desist.”

“He was advised by whom?” Ross asked. “My client,” she said.

So, Ross asked, Brodkorb could not reasonably report information from law enforcement without acting maliciously, simply because MacDonald contends the information is false? “You’ve identified, so far, your client telling him that she didn’t believe she was a person of interest,” Ross said. “Is that the only evidence there is?”

“That is the only evidence,” Adams Powell said. “She told him time and time again.”

Brodkorb’s lawyer, Nathan Hansen, agreed the public figure question is the key to the case. He argued that MacDonald’s public figure status is not a “serious question” and was properly found by the lower court.

Ross and Jesson both pressed him to cite on-point case law supporting that, but Hansen couldn’t. Ross then asked for input on how the court might craft new case law.

“Let’s assume we’re going to publish on this question and we have to establish a rule of law to determine the on and off moment of public-figure status,” the judge said. “How would we guide potential plaintiffs and defendants in defamation cases as to when an individual is a public figure?”

“I think you leave it up to the discretion of the trial court,” Hansen replied, “because of the number of permutations you can have about who’s a public figure.”

Retired Judge John P. Smith, sitting with the court, said that Hansen seemed to suggest the question was a fact matter for a jury. But Hansen said it falls under judicial notice, because the judge easily and independently found that MacDonald was a perennial candidate.

So, how should courts handle the time gaps between candidacies? Ross asked. “The argument is surely that there must be some moment where it ends.” he said.

“If she was a candidate maybe 20 years ago or something and been a private citizen ever since, it might be a different analysis,” Hansen said. “But as these facts are set before us, I don’t think that that inquiry is necessary.”

Volatile issue

Marshall Tanick, a constitutional law attorney, said public-figure status is a volatile legal issue. In September, for example, the Minnesota Supreme Court found in McGuire v. Bowlin that Nathan McGuire, a high school basketball coach, was not a public figure under the Times v. Sullivan “actual malice” defamation standard.

The U.S. Supreme Court has offered little guidance, leaving state courts and legislatures to grapple with the question, he said.

Still, Tanick doubts that MacDonald’s public-figure status is seriously in doubt. In addition to her perennial-candidate status, he said, she has been a high-profile serial litigant and a not-infrequent newsmaker.

“While one couldn’t say once a public figure, you’re always a public figure,” Tanick said, “I think one would have to significantly retreat from the public eye for a long period of time to lose that public-figure classification.”

As to Karlowba Powell’s contention that Brodkorb was on notice that MacDonald was no person of interest, Tanick called the argument “pretty thin.”

Asked after the Dec. 12 hearing how they thought oral arguments had gone, both Adams Powell and Hansen said they mostly felt positive. MacDonald, however, did not share their optimism. It was distressing, she said, to hear Ross cite court rules to suggest that a District Court judge can impose summary judgment “at any time.”

“Those kinds of questions lead me to believe that this particular court is not interested in particularized facts—you know, the forensic facts,” MacDonald said. It only serves to underscore why she has wanted to become an appellate judge, she said.

“A lot of times, the appellate courts rubber stamp what the judges do below,” she said. “Time and time again, they’re just affirming. And, to me, it feels like a rubber stamping of what the courts are doing.”