Brian Madison, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0794

Brian Madison,
Appellant,

vs.

Todd County, et al.,
Respondents,

Morrison County, et al.,
Respondents.

Filed April 12, 2021
Affirmed
Bjorkman, Judge

Morrison County District Court
File No. 49-CV-19-309

Zorislav R . Leyderman, The Law Office of Zorislav R. Leyderman, Minneapolis,
Minnesota (for appellant)

Kristi A. Hastings, Kendra E. Olson, Pemberton Law Firm, P.L.L.P., Fergus Falls,
Minnesota (for respondents Todd County and Deputy Scott Dirkes)

Cally Kjellberg-Nelson, Dyan J. Ebert, Quinlivan & Hughes, PA, St. Cloud, Minnesota
(for respondents Morrison County and Sheriff Shawn Larsen)

Considered and decided by Bjorkman, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.

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NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellant challenges summary judgment dismissing his defamation and data -
practices claims relating to statements made in connection with an employment
background investigation. He also contests the denial of his motion to amend his complaint
to seek punitive and exemplary damages. Because we conclude that (1) the alleged
defamatory statements are true, express opinion s rather than fact s, or are protected by
conditional privilege, and (2) appellant did not produce evidence of damage caused by the
claimed data-practices violations, we affirm.
FACTS
Appellant Brian Madison was the Chief of Police for the City of Motley from 2007
through 2015. In 2014, Madison applied for a position with respondent Morrison County
Sheriff’s Office. He was selected for an interview, which he attended while wearing his
Motley police uniform. Morrison County did not hire him . In 2015, Madison resigned
from the Motley police department and went to work as campground manager for the City
of Elbow Lake.
After resigning from Elbow Lake in 2016, Madison sought to rejoin the law -
enforcement community. By September, he had been offered a position as a deputy in
respondent Todd County Sheriff’s Office conditioned on successfully passing a
background investigation. Todd County assigned respondent Sheriff’s Deputy Scott
Dirkes to conduct the investigation.

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During his investigation, Deputy Dirkes spoke to a number of individuals employed
by Motley, Elbow Lake, and Morrison County. His September 23, 2016 report (report)
was unfavorable toward Madison and included the following statements:
 Madison “was employed with the city of Motley, Minnesota as the Police
Chief internship.”

 Members of the Morrison County Sheriff’s Office told Deputy Dirkes that
Madison “lacked the inability to follow through with misdemeanor, gross
misdemeanor, and felony cases within the city of Motley and would hand
them off at a moments notice to the county to follow up on.”

 Madison attended his 2014 interview with Morrison County “in a city of
Motley uniform and upon investigation . . . he was on the clock employed by
the city of Motley for that interview.”

 Madison was “on the clock” during the Morrison County interview
“indicating unethical use to this backgrounder of this candidate’s use of
time.”

Todd County ultimately declined to hire Madison because of how he left his employment
with Elbow Lake—resigning via text message with no notice before a busy weekend at the
campground.
The next year, Madison applied for a law-enforcement position with Crow Wing
County. A Crow Wing County background investigator contacted respondent Morrison
County Sheriff Shawn Larsen. Madison did not ge t the position, later learning he failed
the background investigation, which included Deputy Dirkes’s report. Madison requested
a copy of the report from Todd County, and scheduled a meeting with Sheriff Larsen .
Madison later discovered that Deputy Dirkes emailed the report to Sheriff Larsen on the
morning of the meeting.

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Madison commenced this action alleging the above statements defamed him 1 and
that Todd County and Deputy Dirkes violated the Minnesota Gov ernment Data Practices
Act, Minn. Stat. §§ 13.01 -.99 (2020) , by sending the report to Morrison County staff
without Madison’s permission, and by failing to provide the report to him within ten days
of his request. The complaint also assert s negligence and emotional-distress claims.
Respondents moved for summary judgment as to all claims. Todd County and Deputy
Dirkes argued that conditional privilege applies to all the challenged statements, and in the
alternative, the statements are true or express opinions. Morrison County and Sheriff
Larsen argued that the statements are non-actionable opinion or are true, and that Madison
was not entitled to presumed damages because he could not prove actual malice. Madison
moved for leave to amend his complaint to assert claims for punitive and exemplary
damages.
Following a hearing, the district court granted respondents’ motions. The court
concluded that the challenged statements are either true, non-actionable opinion, or subject
to a conditional privilege that Madison did not overcome with evidence of common-law
malice. The district court also concluded the data -practices claims fail as a matter of law
because Madison did not provide evidence that he suffered his claimed emotional damages.
And the district court denied Madison’s motion to amend the complaint to add punitive
and exemplary damages claims. Madison appeals.2

1 Madison sued Deputy Dirkes and Sheriff Larsen individually for defamation, and
included Todd County and Morrison County under a theory of vicarious liability.

2 Madison does not challenge the dismissal of his negligence and emotional-distress claims.

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DECISION
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ.
P. 56.01. We review de novo whether —when viewing the evidence in the light most
favorable to the nonmoving party —there are genuine issues of material fact and whether
the district court erred in its application of the law. Maethner v. Someplace Safe, Inc., 929
N.W.2d 868, 874 (Minn. 2019).
Madison challenges the dismissal of his defamation and data -practices claims and
the denial of his motion to assert claims for punitive and exemplary damages. We turn first
to his defamation claim.
I. Madison’s defamation claim fails as a matter of law because the challenged
statements are true, express an opinion, or are conditionally privileged.

To prevail on a defamation claim, a party must establish that
(1) the defamatory statement was communicated to someone
other than the plaintiff; (2) the statement is false; (3) the
statement tends to harm the plaintiff’s reputation and to lower
the plaintiff in the estimation of the community ; and (4) the
recipient of the false statement reasonably understands it to
refer to a specific individual.

Larson v. Gannett Co. , 940 N.W.2d 120, 130 (Minn. 2020) (quotation omitted). When
such a statement concerns “a person’s business, trade, or professional conduct,” it is
defamation per se , which does not require proof of actual damages. Becker v. Alloy
Hardfacing & Eng’g Co. , 401 N.W.2d 655, 661 (Minn. 1987). But a plaintiff alleging
defamation per se must prove the remaining elements to succeed on his defamation claim.

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Bebo v. Delander, 632 N.W.2d 732, 739 (Minn. App. 2001), review denied (Minn. Oct. 16,
2001).
We begin our analysis by considering fundamental principles of defamation law.
True statements are not defamatory. McKee v. Laurion , 825 N.W.2d 725, 730 (Minn.
2013). Statements that reflect opinions rather than verifiable facts are not defamatory. See
Jadwin v. Minneapolis Star & Tribune Co. , 390 N. W.2d 437, 441 (Minn. App. 1986)
(“Expressions of opinion, rhetoric, and figurative language are generally not actionable if,
in context, the audience would understand the statement is not a representation of fact.”).
Neither are statements incapable of conveying a defamatory meaning. McKee, 825 N.W.2d
at 732. “[W]hether a statement’s language reasonably conveys a defamatory meaning” is
a question of law. Id. at 731. And even untrue statements of fact are not defamatory if
they are made upon a “proper occasion,” with “proper motive,” and based on “reasonable
or probable cause.” Hunt v. Univ. of Minn. , 465 N.W.2d 88, 92 (Minn. App. 1991) . In
such cases, the statements are conditionally privileged, and actionable only if the party
seeking relief demonstrates common-law malice. Id.
Madison argues that the four challenged statements3 support a defamation claim he
is entitled to present to a jury. We consider each statement in turn.

3 We consider defamation claims based on the statements identified in the complaint. See
Benson v. Nw. Airlines, Inc. , 561 N.W.2d 530, 538 (Minn. App. 1997) (concluding
statements not contained in the complaint were “beyond the scope” of the defamation
claim), review denied (Minn. June 11, 1997). Madison agrees that certain statements he
referenced in opposing s ummary judgment, but did not include in his complaint , are not
before us on appeal.

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A. “Chief internship”
The report states that Madison “ was employed with the city of Motley, Min nesota
as the Police Chief internship.” Madison contends that this statement is defamatory
because he was, in fact, the Chief of Police for M otley—not an intern. We are not
persuaded for two reasons.
First, when viewed in the context of the entire report, it is clear that the reference to
an “internship” is a clerical error incapable of conveying a defamatory meaning . See
Jadwin, 390 N.W.2d at 443 (“The defamatory character of any particular statement must
be construed in the context of the . . . whole.”). The words “Police Chief internship” appear
at the end of the “Employment” section of the report. The very next section is titled
“Internship.” That section states “No internship was asked about or indicated in the
background packet .” And the remainder of the report repeatedly refers to Madison’s
position as “police chief” or “chief of police.” In context, the isolated reference to Madison
being an intern is a mistake that does not undermine the overall accuracy of the report’s
description of his employment.
Second, we are not convinced that the word “internship” carries a defamatory
meaning. Madison cites no legal authority for the proposition that being an intern harms a
person’s reputation in the community. And we are not aware of such authority. See
McKee, 825 N.W.2d at 732 (stating a jury question exists only if “the words are capable of
conveying a defamatory meaning”). The internship reference is not defamatory.

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B. “Hand [cases] off at a moments notice”
The report states that Madison would “hand [cases] off at a moments notice” to
Morrison County while he was the Motley police chief. Madison contends this is
defamatory because he did not “hand of f” cases to the county. We are not persuaded this
statement is anything other than a non-actionable statement of opinion.
When determining whether a statement expresses a fact or an opinion, we consider
“(1) a statement ’s precision and specificity; (2) a statement’s verifiability; (3) the social
and literary context in which the statement was made; and (4) a statement’s public context.”
Fine v. Bernstein, 726 N.W.2d 137, 144 (Minn. App. 2007), review denied (Minn. Apr. 17
2007).
The reference to handing off criminal cases is contained in the portion of the report
where Deputy Dirkes describes his conversations with Morrison County employees who
said Madison “lacked the inability to follow through” 4 with criminal cases and “w ould
hand them off at a mo ments notice to the county to follow up on.” These statements are
not precise or capable of “being proven true or false.” Hunt, 465 N.W.2d at 94. First, they
do not identify the name, nature, or number of criminal cases Madison “handed off” to the
county. Second, whether Madison possessed or lacked the ability to “follow through” on
these unspecified criminal cases is vague and cannot be proven wholly true or false. Third,
the assertion that he would transfer cases “at a moments notice” is figurative language that
expresses an opinion rather than verifiable fact. Moreover, in the overall context of the

4 The parties agree, and we assume for purposes of summary judgment, that the phrase
“lacked the inability” is meant to and does convey the same meaning as “lacked the ability.”

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report, these statements clearly reflect that Morrison County employees felt Madison was
too quick to turn over cases to the county’s j urisdiction. Because these statements are
imprecise and reflect opinion, they are not defamatory.
C. “On the clock”—Sheriff Larsen and Morrison County
The report states that Madison attended the 2014 Morrison County interview “in a
city of Motley uniform,” and that “upon investigation by the Sheriff’s Office he was on the
clock employed by the city of Motley for that interview.” In his deposition, Deputy Dirkes
attributes this statement to Sheriff Larsen. Madison contends this statement is false
because his timesheet from that day demonstrate s he was not working for the city at the
time of his interview. We agree with Madison that this statement is a verifiable statement
of fact which can be proven true or false. But we are not persuaded that Sheriff Larsen’s
statement supports a defamation claim.5
Statements that are otherwise defamatory a re not actionable if they are
“conditionally privileged and the privilege was not abused.” Hunt, 465 N.W.2d at 92.
Statements made in connection with employment background investigations are generally
subject to conditional privilege. Id. This is so “because the public interest is best served
by encouraging accurate assessments of an employee’s performance .” Id. Accordingly,

5 Madison argues that Morrison County and Sheriff Larsen forfeited any conditional
privilege because they did not raise the argument in t he district court or on appeal. But
they asserted the privilege in their answer and the district court concluded that the
statements attributed to them are conditionally privileged. Moreover, this court may
“affirm a grant of summary judgment if it can be sustained on any grounds.” Doe v.
Archdiocese of St. Paul & Minneapolis, 817 N.W.2d 150, 163 (Minn. 2012).

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we consider whether Sheri ff Larsen made his statement “upon a proper occasion, from a
proper motive, and based upon reasonable or probable cause.” Id.
It is undisputed that Sheriff Larsen made the statement in response to Deputy
Dirkes’s request for an employment reference; thi s is a well -recognized proper occasion.
Id.; see also Stuempges v. Parke , Davis & Co. , 297 N.W.2d 252, 257 (Minn. 1980) (“ In
the context of employment recommendations, the courts generally recognize a qualified
privilege . . . .”). Sheriff Larsen had a proper motive—he was relating what he knew based
on his office’s interactions with Madison. And because it is undisputed that Madison was
wearing his Motley police uniform during his interview with Morrison County, it was
reasonable to conclude that Madison was in the city’s employ . Sheriff Larsen’s “on the
clock” statement is thus subject to conditional privilege.
Because the challenged statement is conditionally privileged, Madison m ust
establish that Sheriff Larsen made the statement with malice as defined by the common
law. Hunt, 465 N.W.2d at 92. Common -law malice means “actual ill will, or intent to
causelessly and wantonly injure the plaintiff.” Id. (quotation omitted). “Malice may be
shown by extrinsic evidence of personal i ll will . . . .” Id. Isolated conduct, such as
canceling a meeting or other personal slights do not demonstrate the “personal animosity”
required to show ill will. Id. at 90-92. And extrinsic evidence of ill will does not exist
when the plaintiff does not allege personal an imosity. Id. at 92; accord Karnes v. Milo
Beauty & Barber Supply Co. , 441 N.W.2d 565, 568 (Minn. App. 1989) (deciding no
extrinsic evidence supported the jury’s finding of actual malice where the plaintiff “did not
allege any personal animosity”), review denied (Minn. Aug. 15, 1989). Madison does not

11
allege that Sheriff Larsen harbored personal animosity toward him. Thus, there is no
extrinsic evidence of common-law malice.
Common-law malice may also be shown by “intrinsic evidence,” such as the use of
“exaggerated language” within the statement or the extent of the statement’s publication .
Hunt, 465 N.W.2d at 93. Madison does not point us to any such evidence. While Sheriff
Larsen admitted that he did not personally conduct the referenced investigation, failing to
investigate an allegation does not conclusively establish malice. See Chafoulias v.
Peterson, 668 N.W.2d 642, 655 (Minn. 2003) (concluding a “mere failure to investigate”
does not establish malice in the context of actual malice and public figures); see also Wirig
v. Kinney Shoe Corp., 461 N.W.2d 374, 381 (Minn. 1990) (concluding a company’s
“failure to investigate” before firing an employee for theft does not “ris[e] to the level of
willful indifference” consistent with common-law mal ice). Sheriff Larsen made a
reasonable assumption that a person wearing a full on -duty uniform to an interview was
indeed on-duty at the time. He merely relayed this reasonable assumption to Deputy Dirkes
as part of an employment investigation. In short, Madison presented no evidence of actual
ill will or intent to injure Madison.
But even if Madison established disputed material facts as to malice, his defamation
claim fails as a matter of law because he has not demonstrated actual damages. As noted
above, parties seeking recovery based on statements that defame their business or
profession generally do not need to prove actual damages. Becker, 401 N.W.2d at 661.
But they must do so if the challenged statements relate to matters of public c oncern.
Maethner, 929 N.W.2d at 878 -79. Whether a statement is a matter of public concern

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depends on the “totality of the circumstances,” including “the content, form, and context
of the speech” as well as “what was said, where it was said, and how it wa s said.” Id. at
881 (quotation omitted). Sheriff Larsen is a public employee. He made the “on the clock”
statement in that capacity in response to a reference check by another public entity. The
challenged statement directly relates to Madison’s prior conduct as a public employee ,
specifically whether he acted ethically during his Morrison County interview. These
undisputed facts convince us that Sheriff Larsen’s statement related to a matter of public
concern.
Madison contends that there are genuine fact issues as to his actual damages. He
first contends Todd County did not hire him because of the defamatory statement. But
Todd County employees testified by deposition that Todd County did not hire Madison
because he abruptly ended his employment with Elbow Lake by text on the eve of a busy
camping weekend.6 And although Crow Wing County did not hire Madison after receiving
the report from Deputy Dirkes, Madison did not produce evidence t hat Sheriff Larsen’s
“on the clock” statement contributed to the decision.7 And Madison presents no evidence
that his ongoing struggl e to find employment in the law -enforcement field is in any way

6 Madison does not allege that this part of the report is defamatory.

7 We acknowledge that M adison presented an affidavit from a Crow Wing County
employee to support his claim of actual damages. The district court did not consider the
affidavit because Madison submitted it after the summary judgment and other motions had
been fully briefed. Accordingly, it is not within the scope of this court’s review. And, to
the extent that Madison challenges the district court’s decision not to consider the affidavit,
we discern no abuse of discretion on this record. See Underdahl v. Comm’r of Pub. Safety
(In re Comm’r of Pub. Safety ), 7 35 N.W.2d 706, 711 (Minn. 2007) (stating we do not
disturb a district court’s discovery orders absent a clear abuse of discretion).

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directly tied to Sheriff Larsen’s alleged statements. In sum, Madison’s claim against
Sheriff Larsen and Morrison County based on the “on the clock” statement fails as a matter
of law because the statement is conditionally privileged, made without common -law
malice, and did not cause actual damages.
D. “On the clock” and “unethical use of time” —Deputy Dirkes and Todd
County

The final challenged statement is the portion o f the report in which Deputy Dirkes
quotes Sheriff Larsen and opines that Madison’s actions indicated “unethical use to this
backgrounder of this candidate’s use of time.” Madison contends this is def amatory
because he did not act unethically during the interview. Todd County and Deputy Dirkes
argue that conditional privilege protects both parts of this statement. We agree and further
conclude that the reference to “unethical use of time” is a protected opinion.
As we have discussed, to be conditionally privileged, the statement “must be made
upon a proper occasion, from a proper motive, and based upon reasonable or probable
cause.” Hunt, 465 N.W.2d at 92. Deputy Dirkes was assigned to investigate and report on
Madison’s employment background to evaluate his candidacy f or a deputy sheriff’s
position in Todd County. Thus, Deputy Dirkes made his statement on a proper occasion.
He testified at his deposition that he prepares his background reports with an eye to relating
what he was told by the pe ople he interviewed in light of factors he believes are relevant
to the candidate’s fitness for the job. This motive for including the “on the clock” statement
is proper. And the statement was based up on reasonable cause ; Deputy Dirkes reported

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what he was told by Sheriff Larsen about Madison’s conduct during his Morrison County
interview. As such, the statement is conditionally privileged.8
Because the “on the clock” statement attributed to Deputy Di rkes is subject to
conditional privilege, Madison must show common-law malice—actual ill will or intent to
causelessly and wantonly injure Madison. See id. Madison concedes there was no personal
animosity between him and Deputy Dirkes, so there is no ext rinsic evidence of ill will.
Madison instead contends that failure to investigate the statement and exaggerated
language in the report constitute intrinsic evidence of common-law malice. But the failure
to investigate an allegation is not dispositive on the issue of malice. Chafoulias, 668
N.W.2d at 655 ; Wirig, 461 N.W.2d at 381 . And when reporting the “on the clock”
statement itself, Deputy Dirkes does not us e exaggerated language; he merely recites the
fact that Madison attended the interview wearing the Motley uniform, and reports that
“upon investigation by the Sheriff’s Office” Madison was “on the clock” during the
interview. T he rote recitation of facts from another source without embellishments or
exaggerations does not constitute intrinsic evidence of common-law malice. Absent such
evidence, conditional privilege applies to Deputy Dirkes’s “on the clock” statement.
And the second part of Deputy Dirke’s challenged statement —that Madison’s
attendance at the interview while on the City of Motley’s payroll constitutes “unethical use

8 Madison argues that the report is not protected by conditional privilege because Deputy
Dirkes was later disciplined in connection with the report. But the criticism and discipline
were based only on Deputy Dirkes’s failure to identify the persons he interviewed in the
report. The fact Deputy Dirkes did not follow the internal policy on identifying sources in
a background report does not mean he acted with common -law malice when he spoke to
the persons he did and reported what they had to say.

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to this backgrounder of [Madison’s] use of time” —expresses an opinion rather than
verifiable fact. A statement is only verifiable if it is capable of “being proven true or false.”
Hunt, 465 N.W.2d at 94. Madison does not explain how “unethical use” of his time can be
proven true or false. The statement does not identify any policies, rules, or statutes that
define the ethical use of time or demonstrate Madison did not meet such a standard. And
by qualifying the assessment “to this backgrounder,” Deputy Dirkes clearly signaled that
he was expressing his personal opinion that Madison’s conduct was unethical. This
expression does not support a defamation claim.
II. Madison’s claims under the Minnesota Government Data Practices Act fail as
a matter of law because he did not produce evidence sufficient to support
recovery of emotional damages.

Madison alleges two violations of the Minnesota Government Data Practices A ct:
(1) Todd County’s failure to provide him with the background report within ten days after
his request as required by Minn. Stat. § 13.04, subd. 3; and (2) Deputy Dirkes emailing the
report to Sheriff Larsen without Madison’s authorization as required by Minn. Stat.
§ 13.05, subd. 4(d). Assuming without deciding that these actions violate the act, Madison
is only entitled to relief if he proves damages. Minn. Stat. § 13.08, subd. 1; accord Adams
v. Harpstead , 947 N.W.2d 838 , 842 (Minn. App. 2020) , review denied (Minn. Oct. 1,
2020).
Madison alleges he has suffered emotional distress as a result of these violations. A
person may recover damages fo r emotional harm arising from data -practices violations,
but only if he demonstrates “that emotional injury occurred under circumstances tending
to guarantee its genuineness .” Navarre v. S. Washington Cty. Sch s., 652 N.W.2d 9, 30

16
(Minn. 2002) (quotation omitted ). This heightened standard is based on our supreme
court’s historical reluctance “to expand the availability of emo tional-distress damages
because of concerns regarding liability and the potential for abuse.” Adams, 947 N.W.2d
at 843 (citing Navarre, 652 N.W.2d at 30). For this reason, a plaintiff’s conclusory
allegations of emotional distress are not sufficient. Rather, courts look for corroborative
evidence such as medical treatment and physical symptoms, or the particular circumstances
of the alleged violation. Navarre, 652 N.W.2d at 16-18, 30; Adams, 947 N.W.2d at 844-45.
The circumstances here are materially different from those in Navarre, where the
supreme court determined the plaintiff’s allegations of emotional harm were supported by
circumstances that guaranteed their genuineness even in the absence of medical evidence.
Navarre, 652 N.W.2d at 16 -18, 30 . In Navarre, the plaintiff school teacher claimed
emotional distress after her private personnel data —namely, complaints made about her
job performance from “teachers, students, and parents” —was widely disseminated to
parents (via letters) and various media outlets. Id. The supreme court determined evidence
of this widespread disclosure “was sufficient to allow” the plaintiff’s claim for emotional
damages “to be submitted to the jury, ” because it reasonably indicated the disclosure did
in fact make the plaintiff “extremely upset” and “caused her to be afraid to go out in
public.” Id. at 30. The record here contains no such corroborative evidence. Madison did
not seek treatment for his claimed emotional distress and does not allege physical
symptoms, such as loss of sleep. And, unlike in Navarre, the two data-practices violations
did not involve widespread disclosure to the general public from which resulting emotional
distress is reasonably expected. See Adams, 947 N.W.2d at 844-45 (contrasting Navarre

17
with limited disclosure “involving only county personnel and the misdelivery of mail to a
single fellow client-patient”).
On this record, Madison’s emotional-distress claim does not clear the heightened
evidentiary burden set forth in Navarre and Adams. And because Madison does not claim
or present evidence of other damages caused by the data -practices violations, his data -
practices claims fail as a matter of law.9
Affirmed.

9 Because Madison’s underlying defamation claim and data-practices claims fail as a matter
of law, we need not consider Madison’s motion to seek punitive or exemplary damages.