Michelle L. MacDonald, et al., Appellants,

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0665

Michelle L. MacDonald, et al.,
Appellants,

vs.

Michael Brodkorb, et al.,
Respondents.

Filed February 24, 2020
Affirmed; motion granted in part
Ross, Judge

Ramsey County District Court
File No. 62-CV-18-4145

Karlowba R. Adams Powell, St. Paul, Minnesota (for appellants)

Nathan M. Hansen, North St. Paul, Minnesota (for respondents)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Smith, John,
Judge.*
S Y L L A B U S
I. A candidate for public office is a limited-purpose public figure whose claims
for defamation require proof of actual malice.
II. A candidate for public office may remain a public figure after an election
loss by repeatedly seeking elective office.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
III. A public-figure candidate for public office cannot maintain a claim of
defamation by implication.
O P I N I O N
ROSS, Judge
Appellants Michelle MacDonald and MacDonald Law Firm LLC sued respondents
Michael Brodkorb, Missing in Minnesota LLC, and others, alleging defamation for
statements referring to MacDonald’s arrest on suspicion of drunk driving and her
involvement in a high-profile family-law case. Respondents moved for summary judgment,
and the district court dismissed the claims, reasoning that MacDonald was a public figure,
that defamation by implication was not actionable, and that there was no genuine issue of
material fact about either the truth of respondents’ statements or respondents’ lack of actual
malice. MacDonald and her law firm ask us to reverse and remand, arguing that the
district court prematurely granted respondents’ summary-judgment motion in violation of
due process, that the district court misapplied the law, and that the district court improperly
resolved genuine issues of material fact. We affirm because the district court correctly held
that MacDonald was a public figure, that the defamation- by-implication claim failed as a
matter of law, and that no genuine dispute of material fact prevented summary judgment.
FACTS
Appellants Michelle MacDonald and MacDonald Law Firm LLC (together,
MacDonald) sued respondents Michael Brodkorb, Missing in Minnesota LLC (together,
Brodkorb), and “John and Mary Does” in June 2018 for defamation generally, defamation
per se, and defamation by implication. MacDonald alleged that Brodkorb defamed her in
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numerous statements falling into three general categories. First, she alleged that Brodkorb
falsely identified her as a “person of interest” in the disappearance of the Rucki sisters,
daughters of MacDonald’s client Sandra Grazzini-Rucki. 1 Second, she alleged that
Brodkorb falsely reported that an appellate court affirmed MacDonald’s conviction for
driving under the influence. 2 Third, she alleged that Brodkorb repeatedly published a
photograph “as if a mug shot” so as to imply that MacDonald was a criminal, a “drunk,”
or mentally ill.
MacDonald filed her complaint in both Dakota County and Ramsey County,
prompting Brodkorb to move for sanctions against MacDonald in Ramsey County, arguing
that her lawsuit was harassing and needlessly increased costs in light of the Dakota County
filing. The Dakota County District Court ultimately dismissed its case without prejudice,
and the Ramsey County case proceeded.
MacDonald moved for default judgment in September 2018, arguing that Brodkorb
had failed to serve a timely answer. She supported the motion with her “affidavit,” which
was a restatement of the amended complaint. The “affidavit” was neither n otarized nor
signed under penalty of perjury. Brodkorb moved for summary judgment the day aft er

1 Grazzini-Rucki spirited two of her teenage daughters into hiding on a ranch where they
remained for two years, ultimately resulting in Grazzini- Rucki’s convictions for
deprivation of parental rights. State v. Grazzini-Rucki, No. A16-1997, 2017 WL 5077562,
at *1–2 (Minn. App. Nov. 6, 2017), review denied (Minn. Jan. 16, 2018).

2 A jury found MacDonald guilty of test refusal and obstructing legal process and not guilty
of driving under the influence of alcohol, and we affirmed her convictions on appeal. State
v. Shimota, 875 N.W.2d 363, 365, 373 (Minn. App. 2016), review denied (Minn. Apr. 27,
2016).
4
MacDonald’s default-judgment motion, supporting his motion with his own affidavit and
exhibits. In his affidavit, Brodkorb admitted to identifying MacDonald as a person of
interest in the Grazzini-Rucki criminal case, but he asserted that the Star Tribune had
already described her that way and that investigating police officers had confirmed
MacDonald’s person-of -interest status “on multiple occasions.” He denied having ever
reported that she was convicted of drunk driving. Brodkorb also stated that the disputed
“mug shot” photograph was in fact an actual booking photograph of MacDonald that he
obtained from the Dakota County Sheriff’s Department. Brodkorb argued that no genuine
dispute of material fact existed and that summary judgment was appropriate.
The district court denied MacDonald’s default motion, a decision she does not
challenge on appeal. The district court granted Brodkorb’s motion for summary judgment.
It concluded that MacDonald was a public figure based on her “perennial” candidacy for
public office in 2014, 2016, and 2018, a conclusion that would defeat her defamation
claim unless she provided proof of Brodkorb’s actual malice. It dismissed MacDonald’s
defamation-by-implication claim, reasoning that Minnesota has rejected the cause of action
by public officials.
Addressing MacDonald’s person-of -interest defamation allegations, the district
court concluded that MacDonald had offered no evidence to create a genuine dispute that
Brodkorb acted with actual malice. It focused on Brodkorb’s and MacDonald’s competing
“affidavits”: Brodkorb’s affidavit asserted that investigating police had informed him that
MacDonald was in fact a person of interest in the Grazzini-Rucki criminal case, while
MacDonald’s “affidavit” asserted that police had told her she was not a person of interest.
5
The district court reasoned that MacDonald’s statement was inadmissible hearsay but that
Brodkorb’s statement was not hearsay because it was offered to prove his lack of actual
malice rather than to prove the truth of the matter asserted. The district court concluded
that the record was therefore “devoid of evidence that [ Brodkorb] broadcasted [the]
statements . . . knowing that the information was false or that [ Brodkorb] entertained
serious doubts as to the truth of [the] statements.”
Addressing MacDonald’s drunk-driving defamation allegations, the district court
observed that MacDonald had failed to produce the alleged twitter.com “tweet” in which,
according to her, Brodkorb falsely announced that she had been convicted of drunk driving.
The district court recognized that Brodkorb denied tweeting the claimed false
announcement, and it considered whether any evidence before it supported MacDonald’s
allegation. It assessed a missinginminnesota.com post in which Brodkorb reported only
that MacDonald was found guilty of test refusal, obstructing legal process, and speeding,
not of drunk driving.
Addressing MacDonald’s “mug shot” defamation allegations, the district court
rejected MacDonald’s premise that the photograph was defamatory on its face, noting that
it was never purported to be a mug shot. The district court instead clarified her argument:
“What [ MacDonald is ] really arguing is that the unflattering photograph and caption
containing the reference to MacDonald being a ‘person of interest,’ even if true or lacking
actual malice, are defamatory by implication.” It rejected the claim based on Minnesota’s
rejection of defamation-by-implication claims as to public officials.
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MacDonald appealed. Brodkorb moved to strike two documents from her
addendum: a June 22, 2018 letter MacDonald filed in Dakota County indicating her case
filing was made in error; and a photograph purporting to show the February 16, 2016 tweet
in which Brodkorb allegedly claimed an appellate court affirmed MacDonald’s “DWI”
conviction. We chose to decide the motion and appeal together.
ISSUES
I. Should portions of MacDonald’s addendum be stricken from the appellate record?

II. Did MacDonald waive any due-process arguments by failing to raise them before
the district court?
III. Did the district court err by granting Brodkorb’s motion for summary judgment?
ANALYSIS
MacDonald argues that the district court prematurely granted summary judgment,
improperly resolved factual disputes, and misapplied the law. Brodkorb urges us to affirm
the district court, and he also asks us to strike portions of MacDonald’s addendum. For the
following reasons, we grant in part and deny in part Brodkorb’s motion to strike, and we
affirm the district court’s summary-judgment decision dismissing MacDonald’s claims.
I
Brodkorb asks us to strike two documents from MacDonald’s addendum because
they were not in the district court’s record. “The documents filed in the trial court, the
exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal
in all cases.” Minn. R. Civ. App. P. 110.01. We generally will not consider matters outside
the record on appeal or evidence not produced and received in the district court. Thiele v.
7
Stich, 425 N.W.2d 580, 582– 83 (Minn. 1988). One challenged document is a copy of
a letter MacDonald filed with the Dakota County District Court on June 22, 2018,
representing that she had filed her case in Dakota County in error. The other is a photograph
of a cell -phone screen depicting an image of the February 16, 2016 tweet in which
Brodkorb allegedly represented that MacDonald was convicted of drunk driving. The two
documents prompt different conclusions.
We deny Brodkorb’s motion as to the letter. We may take judicial notice of, or
refuse to strike, public documents not received into evidence in the district court. See State
v. Rewitzer, 617 N.W.2d 407, 411 (Minn. 2000). Although the letter was not included
in the record in this case, it is part of the Dakota County District Court’s public record.
See MacDonald v. Brodkorb, No. 19HA-CV -18-2643 (Minn. Dist. Ct. June 22, 2018)
(correspondence). The district court in this case adopted the Dakota County District Court’s
stated procedural history, which itself referenced the letter. Because the correspondence is
a public document and the district court took judicial notice of it, we decline to strike it on
appeal.
We grant Brodkorb’s motion as to the tweet photograph. MacDonald failed to
produce the photograph in the district court. Its absence expressly factored into the district
court’s decision. MacDonald argues that the tweet was referenced in the civil complaint in
this case and therefore was incorporated into the record. She cites no authority for the
proposition that an appellate court reviewing a summary -judgment decision should
consider evidence not considered or even properly offered during the summary -judgment
proceeding simply because it was mentioned in a different pleading. And incorporation
8
by reference is typically limited to situations where the district court’s consideration of
documents referenced in a complaint does not convert a motion to dismiss under Minnesota
Rule of Civil Procedure 12.02 into a motion for summary judgment. See N. States Power
Co. v. Minn. Metro. Council, 684 N.W.2d 48 5, 490 (Minn. 2004). Because the evidence
was not in the district court record, it is not properly before us.
II
MacDonald argues that the district court violated her due-process rights by granting
summary judgment without requiring an answer or affording time for discovery. We
generally decline to address issues raised for the first time on appeal. See Thiele,
425 N.W.2d at 582. The rule is flexible, and we may review forfeited issues as the interests
of justice require. See Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002); see also Minn. R.
Civ. App. P. 103.04. Brodkorb accurately emphasizes that MacDonald failed to raise the
argument in the district court, failed to seek permission to conduct discovery, and failed
to request a continuance to facilitate any discovery she now asserts was necessary.
MacDonald had ample opportunity to seek relief to avoid an early -stage summary
judgment:
If a nonmovant shows by affidavit that, for specified
reasons, it cannot present facts essential to justify its
opposition, the court may:
(a) defer considering the motion or deny it;
(b) allow time to obtain affidavits or to take
discovery; or
(c) issue any other appropriate order.
9
Minn. R. Civ. P. 56.04. MacDonald failed to pursue the relief available under rule 56.04.
Her counsel briefly addressed the issue during oral arguments before the district court,
stating, “[A]ccording to the rules [respondents’] motion could possibly be premature
because discovery has not even beg[u]n. . . . So their motion is really technically
premature.” This passing reference by counsel falls far short of the affidavit procedure
authorizing the district court to grant the relief that counsel was suggesting. It is neither a
sufficient ground for us to deem the issue preserved for our consideration on appeal under
Thiele nor timely presented under the general-practice rules. See Minn. R. Gen. Prac.
115.03(b) (2018) (requiring responsive memoranda to be served and filed “at least 9 days
prior to the hearing”).3 The argument is forfeited.
III
MacDonald challenges the district court’s summary -judgment decision on
numerous bases, generally contending that the district court improperly resolved factual
disputes and misapplied the law. Summary judgment is appropriate if the moving party
shows that there is no genuine issue of material fact and that he is entitled to judgment as
a matter of law. Minn. R. Civ. P. 56.01. We review a district court’s summary -judgment
decision de novo, assessing whether any genuine issues of material fact exist and whether
the district court misapplied the law. Melrose Gates, LLC v. Chor Moua, 875 N.W.2d 814,
819 (Minn. 2016). We view the evidence in the light most favorable to the nonmoving

3 Minnesota Rule of General Practice 115.03(b) was amended, effective January 1, 2020,
to require responsive memoranda to be filed at least 14 days before the hearing. We refer
to the rule that was in effect at the time of the parties’ motions.
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party and resolve doubts regarding the existence of material facts in that party’s favor.
Senogles v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017).
A plaintiff alleging defamation must establish four elements: (1) that the defendant
communicated a statement to a third party; (2) that the statement was false; (3) that the
statement tends to cause reputational harm; and (4) that the recipient of the statement
understands that it refers to a specific individual. McKee v. Laurion, 825 N.W.2d 725,
729–30 (Minn. 2013). Defamation affecting a plaintiff’s “business, trade, profession, office
or calling” is defamation per se. Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 920 (Minn.
2009) (quotation omitted). But if the plaintiff is a public figure, her defamation claim
requires clear and convincing proof that the defendant acted with actual malice, meaning
he willfully or recklessly disregarded the truth or falsity of the allegedly defamatory
statements. Metge v. Cent. Neighborhood Improvements Ass’n, 649 N.W.2d 488, 496–97
(Minn. App. 2002), review dismissed (Minn. Oct. 15, 2002). One form of defamation is
defamation by implication. Id. at 498. This type of defamation may involve truthful
statements that imply defamatory content, and it occurs when a defendant either
“juxtaposes a series of facts to imply a defamatory connection between them ” or “creates
a defamatory implication by omitting facts.” Id.
MacDonald failed to provide evidence creating any genuine dispute of material fact.
MacDonald rests several claim-specific arguments on her general contention that
the district court improperly resolved genuine disputes of material fact. Our de novo review
of the record convinces us that MacDonald failed to present any genuine dispute of material
fact to challenge the facts asserted in Brodkorb’s affidavit. As the summary -judgment
11
movant, Brodkorb bore the initial burden of showing that no genuine fact issue exists.
See Minn. R. Civ. P. 56.01; see also Anderson v. State, Dep’t of Nat. Res., 693 N.W.2d
181, 191 (Minn. 2005). MacDonald, in response and as the nonmoving party , could not
avoid summary judgment by resting on mere assertions. See Stringer v. Minn. Vikings
Football Club, LLC, 705 N.W.2d 746, 754 (Minn. 2005). She instead could avoid summary
judgment only by producing substantial evidence creating a disputed factual issue to
be resolved by a fact- finder. Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371
(Minn. 2008).
Brodkorb met his burden as the moving party. His motion included a signed, sworn,
notarized affidavit avowing from first-hand information that police had informed him that
MacDonald was a “person of interest” in the Rucki investigation, that the photograph
MacDonald’s complaint referenced was indeed a law-enforcement booking photo, and
that he had never reported that MacDonald was convicted of drunk driving . If the facts
in Brodkorb’s affidavit stand unchallenged, they generally defeat key components of
MacDonald’s defamation claim s. The question then becomes whether MacDonald
presented evidence challenging the facts in Brodkorb’s affidavit. The answer is no.
Although the district court treated MacDonald’s “affidavit” on its merits when it
analyzed Brodkorb’s summary-judgment motion, our de novo review leads us to treat the
submission differently. “An affidavit used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant is competent to testify on matters stated.” Minn. R. Civ. P. 56.03(d). An affidavit is
either “a document that has been signed, sworn, and notarized” or “ a document that has
12
been signed under penalty of perjury pursuant to Minnesota Statutes, section 358.116,
provided that the signature is affixed immediately below a declaration” that says something
like, “I declare under penalty of perjury that everything I have stated in this document is
true and correct.” Minn. R. Gen. Prac. 15. MacDonald’s so-called affidavit was neither
notarized nor signed under penalty of perjury. It is at most an attempted affidavit. It
therefore is not evidence that can challenge the facts asserted in Brodkorb’s affidavit so as
to create a material-fact dispute. We consider MacDonald’s specific arguments in this
context.
The district court may consider defenses on a motion for summary judgment.
MacDonald argues that the district court erred by “ruling on the defense, without
ruling on the [appellants’] defamation case in chief.” The argument ignores the objective
of a summary-judgment motion: “A party may move for summary judgment, identifying
each . . . defense—or the part of each . . . defense—on which summary judgment is
sought.” Minn. R. Civ. P. 56.01 (emphasis added). The district court properly considered
Brodkorb’s defenses.
MacDonald was a public figure at the relevant times.
The district court determined that MacDonald was a “public figure” at all relevant
times because of her candidacy for public office. Based on this determination, the district
court subjected MacDonald’s defamation claims to the actual-malice standard and, in turn,
dismissed the defamation-by-implication claim. Whether a plaintiff is a public figure is a
question of law subject to de novo review. See Jadwin v. Minneapolis Star & Tribune Co.,
367 N.W.2d 476, 483 (Minn. 1985). But it is a question of law that might involve disputes
13
of material fact. Chafoulias v. Peterson, 668 N.W.2d 642, 649 (Minn. 2003). Alternative
methods are available to resolve facts necessary to a public-figure determination:
“submission to a jury for special interrogatory verdicts or under specific instruction as to
the elements of the privilege,” or “pretrial submission to the district court for determination
by specific findings of fact based upon an evidentiary hearing.” Id. at 650. But neither of
these methods was necessary here because MacDonald’s recurring candidacy was not
disputed.
MacDonald contends that the district court made its public -figure determin ation
sua sponte, depriving her of any opportunity to challenge the determination. The record
does not support her contention. Brodkorb raised the issue of MacDonald’s potential
public-figure status in his memorandum supporting his motion for summary judgment, and
the argument featured prominently in both the briefing and oral arguments before the
district court. MacDonald does not contest the district court’s factual predicate that she
“has been a perennial candidate for statewide office, challenging incumbent justices for a
seat on the Minnesota Supreme Court in 2014, 2016 and again in 2018.” She conceded that
factual determination below and again on appeal, and that she l ost her elections in
November of each election year. We may take judicial notice of public documents not part
of the record below, see Rewitzer, 617 N.W.2d at 411, and we observe that MacDonald
filed her affidavits of candidacy for the 2014, 2016, and 2018 elections in May of those
years. MacDonald does not identify any specific public-figure factual dispute that she was
deprived of raising in the district court. Nor does the record reflect that she either made any
effort to pursue an evidentiary hearing before the district court or even suggested that one
14
was necessary to decide the question. She has identified no error in the procedure followed
here.
Challenging the merits of the district court’s public -figure determination,
MacDonald argues that the district court misapplied caselaw and that the defamation
concerned periods during which MacDonald was not a candidate. We begin with the
well-settled precept that the “freedom of expression upon public questions is secured by
the First Amendment.” New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S. Ct. 710,
720 (1964). The Supreme Court held that the First and Fourteenth Amendments “delimit[]
a [s]tate’s power to award damages for libel in actions brought by public officials against
critics of their official conduct,” and that such claims require proof of actual malice. Id. at
283, 84 S. Ct. at 727. The Court extended its actual-malice rule to “public figures” in Curtis
Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S. Ct. 1975, 1991–92 (1967). And in Gertz
v. Robert Welch, Inc., it identified three categories of public figures: involuntary public
figures, who attain their status throug h no purposeful action; all-purpose public figures,
like celebrities; and limited-purpose public figures, who “have thrust themselves to the
forefront of particular public controversies in order to influence the resolution of the issues
involved.” 418 U.S. 323, 345, 94 S. Ct. 2997, 3009 (1974).
MacDonald clearly does not qualify as either an involuntary or an all-purpose public
figure, and Brodkorb does not contend otherwise. This leaves the question of whether she
is a limited-purpose public figure. The answer depends on three factors: “(1) whether a
public controversy existed; (2) whether the plaintiff played a meaningful role in the
15
controversy; and (3) whether the allegedly defamatory statement related to the
controversy.” Chafoulias, 668 N.W.2d at 651.
We conclude first that a contested election for the office of a Minnesota Supreme
Court justice constitutes a public controversy . “A public controversy requires two
elements: (1) there must be some real dispute that is being publicly debated; and (2) it must
be reasonably foreseeable that the dispute could have substantial ramifications for persons
beyond the immediate participants.” Id. at 652. A contested supreme court election meets
both public-controversy elements. The state supreme court as a body is the final interpreter
of all state constitution al provisions, the final authority on the meaning of disputed state
statutes, and potentially the final arbiter on every issue—large and small—in every case in
the state judiciary. It has the power to finesse the common law, modify the rules of criminal
and civil procedure in all lower courts, and discipline state attorneys and judges. The
qualitative merit of two persons competing to retain or obtain one of seven seats on the
court constitutes a real and public debate. And the contest necessarily has substantial
ramifications far beyond the immediate participants, reaching not only all Minnesotans but
also non-Minnesotans whose interests may be decided in Minnesota courts.
We conclude second that, of course, MacDonald played a meaningful role in the
controversy. By choosing to seek the post, MacDonald effectively invited every eligible
adult Minnesotan to consider casting a vote in her favor, and she necessarily “thrust
[her]self to the forefront of the controversy . . . so as to achieve a ‘special prominence’ in
the debate and become a factor in resolving the controversy.” Id. at 653.
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And we conclude third that the alleged ly defamatory statements related to the
controversy. The statements are of a nature that could theoretically call into question
MacDonald’s qualifications for the position she has frequently sought. Judges must act in
a manner “that promotes public confidence in the independence, integrity, and impartiality
of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Minn.
Code Jud. Conduct Rule 1.2. And candidates for judicial office must likewise “act at
all times in a manner consistent with the independence, integrity, and impartiality of the
judiciary.” Minn. Code Jud. Conduct Rule 4.2(A)(1). MacDonald has alleged as
defamation various statements suggesting that police considered her involvement to be
relevant in their criminal investigation concerning children kept illegally from their
father. The content of the alleged defamation also revealed her criminal conduct
surrounding her arrest on suspicion of drunk driving. Statements suggesting unethical,
improper, or illegal behavior by a candidate for judicial office relate to the contest and
qualifications for the office.
We are not persuaded to a different conclusion by MacDonald’s underdeveloped
temporal argument. She argues on appeal that the defamation included “periods when Ms.
MacDonald was not a candidate for office.” But she did not so contend in the district court
or produce any evidence disputing the periods of her candidacy. A review of her complaint
and its cursory timeline along with the import of MacDonald’s recurring candidacy leads
us to reject her argument.
The amended complaint indicates that it concerns incidents “leading up to and
following incidents on June 22, 2016,” and alleges that Brodkorb “began a social media
17
campaign against Ms. MacDonald” (emphasis added) approximately in September 2016.
The amended complaint also alleges that MacDonald learned on August 3, 2016, that
Brodkorb was labeling MacDonald as a “person of interest.” Given MacDonald’s May
2016 filing for candidacy, Brodkorb began his allegedly defamatory campaign while
MacDonald was an active candidate for office. MacDonald alleges instances of Brodkorb’s
tweeting the “mug shot,” identifying her as a person of interest, and also implying that she
“crashed” a press conference, all of which she alleges occurred on June 5, 2018—again
during her active candidacy. The amended complaint is silent as to some of the dates of
alleged defamation. We decline to assume from the vagueness of MacDonald’s complaint
that alleged defamation occurred at times when MacDonald was not an active candidate.
The amended complaint does allege that Brodkorb began posting the “mug shot” in
January 2017—a period after MacDonald’s 2016 election loss but before her 2018 active
candidacy. But we share the district court’s view that MacDonald’s “perennial candida[cy]
for statewide office” on the supreme court established her public-figure status at all relevant
times.
At oral argument, MacDonald’s counsel suggested that MacDonald’s status as a
public figure came and went with each new bid for office and election loss, giving rise to
and then extinguishing her public-figure status. The argument supposes that gaps between
MacDonald’s May election filings and her November election losses establish only
periodic, approximately six-month-long terms as a public figure. The argument assumes,
we think unpersuasively, that MacDonald’s public-figure status immediately terminated at
the end of each active election cycle. Candidacy for public office might for some be a
18
one-time occurrence, while for others, like MacDonald, it is recurrent. And it is commonly
known that campaigns for public office are rarely confined to the active, official campaign
period between filing and election. Determined candidates for public office may
demonstrate a long-term campaign strategy that includes persistent refilings and elections
interspersed with f undraising or publicity -enhancing efforts unbounded b y the official
election period. By the time of Brodkorb’s alleged 2017 defamation, MacDonald had
already demonstrated a persistent objective of repeated challenges rather than a
single-occurrence effort.
This case does not require us to determine the shelf life of a candidate’s
public-figure status. It is likely true that, under other circumstances, a judicial candidate’s
public-figure status may have ended before allegedly defamatory statements occurred. It is
not difficult to imagine a case where a candidate who once clearly thrust herself into the
forefront of public controvers y has since clearly retreated, abandoning her public-figure
role. MacDonald presented no facts to the district court suggesting that this is such a case.
We hold that a candidate for public office is a limited-purpose public figure and that a
recurring candidate remains a public figure between formal election periods. MacDonald
remained a public figure by not retreating after thrusting herself into the forefront of public
controversy and by continually seeking a supreme court seat. The district court did not err
by concluding that she was a public figure.
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A public-figure candidate for public office cannot maintain a claim for defamation by
implication.
MacDonald argues that the district court erred by conflating public officials with
public figures when it dismissed her defamation-by-implication claim. The district court
relied on Diesen v. Hessburg, in which the supreme court held that any implication arising
from true statements about a public official are “constitutionally protected criticism of
a public official” and are not def amation as a matter of law. 455 N.W.2d 446, 452 (Minn.
1990). We review questions of law de novo. See State v. Minn. Sch. of Bus., Inc.,
935 N.W.2d 124, 132 (Minn. 2019). We conclude that the district court properly dismissed
MacDonald’s defamation claim by relying on Diesen.
MacDonald accurately observes that Diesen’s express holding was limited to public
officials, not public figures. And public figures and public officials are different in nature.
Unlike a public official, “[a] person becomes a public figure not by her government
employment, but by voluntarily entering a public controversy.” Britton v. Koep ,
470 N.W.2d 518, 521 n.1 (Minn. 1991) . In Diesen, the Carlton County Attorney sued
media parties for articles criticizing his job performance in prosecuting domestic abuse.
455 N.W.2d at 447. The Diesen court recognized that Diesen, “as county attorney, was a
public official and as such, ‘[ran] the risk of closer public scrutiny than might otherwise be
the case.’” Id. at 450 (quoting Gertz, 418 U.S. at 344, 94 S. Ct. at 3009). The court also
explained that this heightened scrutiny is a “necessary and positive element of our
democracy,” and that the “free speech and free press rights at stake” could expose public
officials to reputational harms for which they might have no recovery. Id. In precluding
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defamation-by-implication claims brought by public officials, the Diesen court agreed with
a federal court’s explanation that “speech about government and its officers, about how
well or badly they carry out their duties, lies at the very heart of the First Amendment.” Id.
at 451–52 (quoting Janklow v. Newsweek, Inc., 788 F.2d 1300, 1304 (8th Cir. 1986)).
It is true that MacDonald was not a public official, but was only seeking to become
one. But the Diesen court’s reasoning about protecting critics of public officials f rom
punishment applies with equal force to protecting critics of persons whose public-figure
status rests on their efforts to become public officials. The First Amendm ent interests are
congruent, a fact the United States Supreme Court recognized when consi dering the
breadth of the actual -malice standard: “There is little doubt that public discussion of the
qualifications of a candidate for elective office presents what is probably the strongest
possible case for application of the New York Times rule.” Harte-Hanks Commc’ns, Inc. v.
Connaughton, 491 U.S. 657, 686, 109 S. Ct. 2678, 2695 (1989) (quotation omitted). Like
this case, the Harte-Hanks case involved an “unsuccessful candidate” for a judgeship. Id.
at 660, 109 S. Ct. at 2682. Public discussion of candidates for an elective office is a “value
[that] must be protected with special vigilance,” and “[v]igorous reportage of political
campaigns is necessary for the optimal functioning of democratic institutions and central
to our history of individual liberty.” Id. at 687, 109 S. Ct. at 2695–96.
And in Monitor Patriot Co. v. Roy, the Court also observed that the distinctions
between public figures and public officials were largely immaterial with regard to the
constitutional interests involved:
21
The trial judge instructed the jury that Roy, as a candidate for
elective public office, was a ‘public official,’ and that
characterization has not been challenged here. Given the later
cases, it might be preferable to categorize a candidate as a
‘public figure,’ if for no other reason than to avoid straining the
common meaning of words. But the question is of no
importance so far as the standard of liability in this case is
concerned, for it is abundantly clear that, whichever term is
applied, publications concerning candidates must be accorded
at least as much protection under the First and Fourteenth
Amendments as those concerning occupants of public
office. . . . [I]t can hardly be doubted that the constitutional
guarantee has its fullest and most urgent application precisely
to the conduct of campaigns for political office.
401 U.S. 265, 271–72, 91 S. Ct. 621, 625 (1971) (emphasis added).
Although Harte-Hanks and Monitor Patriot addressed the standard of liability, their
analysis of constitutional interests informs our decision here. And it leads us to conclude
that the Diesen standard for defamation by implication applies to candidates for public
office. Where the motives and functioning of government officials are proper targets for
the heightened protection of public discourse, see Diesen, 455 N.W.2d at 450–52, the same
must be true for candidates seeking to become public officials. We therefore reject the
claim in MacDonald’s complaint that a “technically true” statement may support a claim
of defamation by implication in this case. To the extent Brodkorb’s statements were true,
MacDonald’s defamation case cannot rest on the potential falsity of their implication. The
district court therefore properly dismissed the claim.
There is no genuine dispute that Brodkorb lacked actual malice in making the
person-of-interest statements.
MacDonald argues that the district court improperly determined facts and
erroneously concluded that Brodkorb lacked actual malice in claiming MacDonald was a
22
“person of interest.” We have already determined that the MacDonald “affidavit” was not
an affidavit for the purposes of presenting evidence opposing the summary -judgment
motion. That police informed Brodkorb that MacDonald was a person of interest is
therefore an undisputed fact for the purposes of summary judgment.
Although the district court unnecessarily considered the merits of MacDonald’s
so-called affidavit, it accurately concluded that the affidavit created no genuine dispute as
to Brodkorb’s lack of actual malice. “An affidavit used to support or oppose a motion must
be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant is competent to testify on matters stated.” Minn. R. Civ. P. 56.03(d)
(emphasis added). The district court reasoned that Brodkorb’s affidavit, which declared
that “Lakeville Police investigators had confirmed to me, on m ultiple occasions, that
plaintiff was a ‘person of interest’ in the investigation,” was the only admissible evidence
about Brodkorb’s alleged actual malice. The district court properly concluded that
Brodkorb’s representation about his communication with police was not hearsay, as
Brodkorb did not offer it to prove the truth of any officer’s understanding of whether
MacDonald was actually a person of interest. See Minn. R. Evid. 801(c) (defining hearsay).
The district court relied on the Brodkorb affidavit on this point instead only to disprove
MacDonald’s theory that Brodkorb had made the report knowing it was false, or with
disregard for its truth or falsity. This was an appropriate, limited use of that part of his
affidavit. Because the district court properly concluded MacDonald was a public figure,
and because the district court properly determined that MacDonald offered no admissible
23
evidence of Brodkorb’s alleged actual malice, it properly dismissed any defamation claim
resting on the person-of-interest theory.
No genuine dispute exists about Brodkorb’s alleged tweeting about a drunk-driving
conviction.
The district court rejected MacDonald’s drunk-driving- tweet claim because she
provided no evidence of the purported tweet, because Brodkorb’s affidavit denied posting
the alleged tweet, and because Brodkorb’s actual report did not describe the dispositions
of MacDonald’s criminal cases inaccurately. MacDonald argues that the “post clearly
sets forth that a DUI conviction was upheld, which i s false.” The argument rests on
information we have already stricken from our consideration. Based on this and on our
determination that MacDonald’s “affidavit” is not an affidavit that merits consideration
during the summary-judgment analysis, the district court properly dismissed MacDonald’s
claims about the alleged February 2016 tweet.
The district court properly rejected MacDonald’s “mug shot” claims.
The district court reasoned that Brodkorb had not referred to the contested
photograph as a “mug shot” or booking photograph, and that the crux of MacDonald’s
argument was that the “unflattering photograph” and caption were defamatory by
implication. Brodkorb’s affidavit avowed that the photograph actually is a booking
photograph, and MacDonald offered no competing evidence. She argues instead that the
district court improperly rejected any implication of defamation because “[t]he innuendo
that one is a criminal, drunk, and mentally ill is clearly defamatory and it would be up to a
jury[—]not a judge[—]to determine whether that meaning was the one actually conveyed.”
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Our holding that MacDonald cannot maintain a claim on a defamation-by -implication
theory disposes of the argument. The district court properly dismissed the defamation
claims resting on the posting of the “mug shot.”
The district court did not err by dismissing MacDonald’s claims by limiting its
consideration to three areas of alleged defamation.
MacDonald argues that the district court improperly dismissed her claims by
limiting its analysis to only three instances of alleged defamation when, “[i]n fact, the
complaint was not confined to three defamatory statements.” We have addressed
MacDonald’s contentions about the person-of-interest statements, the 2016 drunk-driving
tweet, and the “ mug shot” postings. Nothing in what remains of MacDonald’s amended
complaint provides any basis to reverse. She says that a radio host called her a “masochist,”
that other Twitter users called her “ deranged” and needing of a straitjacket, and that
Brodkorb claimed that she inappropriately crashed a press conference. Brodkorb is liable
for neither statements by third parties, see Maethner v. Someplace Safe, Inc., 929 N.W.2d
868, 873 (Minn. 2019) (defamation requires proof that the defendant made the statement),
nor his opinions about the appropriateness of MacDonald’s press-conference attendance,
see Diesen, 455 N.W.2d at 452. The district court did not err by addressing only the three
specific areas of alleged defamation.
The district court properly dismissed all claims by MacDonald Law.
MacDonald and MacDonald Law imply that the district court improperly dismissed
the claims to the extent they applied to MacDonald Law rather than to MacDonald
personally. They cite no part of their complaint alleging defamation against MacDonald
25
Law, and our review uncovers none. Consistent with how we have discussed the claims,
the complaint is framed so as to demonstrate that MacDonald Law’s claims are entirely
contingent on MacDonald’s claims personally. All claims were properly dismissed.
D E C I S I O N
We partly grant and partly deny respondents’ motion to strike. We affi rm the
district court’s summary-judgment decision dismissing all defamation claims because no
material-fact issues exist, MacDonald was a public figure, and defamation by implication
is not actionable here.
Affirmed; motion granted in part.