Abraham v. Post.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
RHONDA ABRAHAM,
Plaintiff,
v.
DON POST,
Defendant.
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C.A. No. K11C-08-001 WLW
Submitted: June 8, 2012
Decided: September 26, 2012
ORDER
Upon Defendant’s Motion for Summary Judgment.
Granted.
James E. Liguori, Esquire of Liguori & Morris, Dover, Delaware; attorney for
Plaintiff.
Jeffrey A. Young, Esquire of Young & McNelis, LLC, Dover, Delaware; attorney for
Defendant.
WITHAM, R.J.
Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
Upon consideration of Defendant Don Post’s Motion for Summary Judgment,
Plaintiff’s response thereto, and the parties’ oral arguments, the Court finds that this
is an action for libel predicated upon two letters written by Defendant Don Post
(hereinafter “Defendant”) to the editor of the Cape Gazette.1 The first letter, dated
December 3, 2010 (hereinafter “the December letter”), concerns a November public
hearing over which Plaintiff Rhonda Abraham (hereinafter “Plaintiff), a Milton
councilwoman, was scheduled to preside. In this letter, Defendant expressed his
misgivings about Plaintiff’s potential conflicts of interest.2 Specifically, Defendant
wrote that “the council person in question, who was the same person, by ruled
decision of the State Public Integrity Commission, [that] could not preside on the
public hearing of the chief due to the alleged allocations [sic]” would place the town
in a “serious compromising position.”3 Although Plaintiff is unnamed, Defendant
1
The following facts are set forth in a matter most favorable to Plaintiff Rhonda Abraham,
the non-moving party. See Super. Ct. Civ. R. 56(c)(when reviewing a motion for summary
judgment, the court must view the record in a light most favorable to the nonmoving party).
2
Defendant served as the mayor of Milton from 2006 until March of 2010. See Deposition
of Donald Post [hereinafter Post Dep.], E-File 43652840, at 5-6. Defendant did not hold a public
office at the time that he wrote the December letter.
3
Def. Mot. for Summ. J., E-File 43652840, Ex. C. Defendant maintains that Plaintiff was the
subject of an advisory opinion issued by the Delaware Public Integrity Commission (hereinafter “the
Commission”), which is tasked with promoting and enforcing ethical conduct among state
employees. See Post Dep. at 8-9; 29 Del. C. § 5808(a) (charging the Commission with the
enforcement of the state ethics code). Defendant alleges that Mary Schrider-Fox, the town’s solicitor
at the time, requested that the Commission issue an advisory opinion on whether it was appropriate
for Plaintiff to recuse herself from participating in a hearing due to her personal relationship with
the police chief. See Post Dep. 8-9 (noting the reasons for the request).
2
Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
concedes that Ms. Abraham was the councilwoman in question.4
The parties ascribed different meanings to the word “allegations” as it appears
in the December letter. Plaintiff contends that the Defendant was referring to
allegations that she was engaged in an extramarital affair with the chief of police of
the Milton Police Department,5 a charge she vehemently denies.6
Defendant
maintains that he neither alluded to nor mentioned the alleged affair in the December
letter,7 and was merely admonishing Plaintiff for participating in a hearing where a
potential conflict could arise.
In the second letter (hereinafter “the March letter”), published March 4, 2011
in the Cape Gazette,8 Defendant detailed his grievances with Plaintiff and three other
Milton officials. The March letter reads, in pertinent part:
Councilwoman Abraham, you are well aware of perception, that is why the
Public Integrity Commission established its ruling regarding your nonparticipation in the chief’s previous public hearing. Your actions the other
night provided me closure on the candidates for the coming election.
Councilwoman Abraham, you should not represent the people of Milton. Your
actions are too much of a liability for the town.9
4
Post Dep. at 7.
5
Pl. Resp. to Def. Mot. for Summ. J. [hereinafter “Pl. Resp.”], E-File 43830352, ¶ 6.
6
Pl. Resp. ¶ 7.
7
Post Dep. at 43.
8
Don Post, Letter to the Editor, Milton Being Taken Down Road of No Return, Cape Gazette,
Mar. 4, 2011, at 8.
9
Id.
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Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
Plaintiff alleges that her husband filed for divorce as a result of the publication of
these two letters,10 and that she lost her bid for re-election.11
Plaintiff subsequently commenced this action, alleging that the aforementioned
statements were both libelous and in violation of 29 Del. C. § 5807(d).12 Defendant
moved for summary judgment on both claims on April 13, 2012.
Summary judgment should be granted only if the record shows that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law.13 The facts must be viewed in the light most favorable to the nonmoving party. 14 Summary judgment may not be granted if the record indicates that
a material fact is in dispute, or if it seems desirable to inquire more thoroughly into
the facts in order to clarify the application of the law to the circumstances.15
However, when the facts permit a reasonable person to draw but one inference, the
question becomes one for decision as a matter of law.
A. Defamation Claim
Defendant asserts that he is entitled to summary judgment on Plaintiff’s
defamation claim because Plaintiff has failed to prove that the pertinent statements
10
Compl. ¶ 16.
11
Compl. ¶ 23.
12
See id. at 1-3.
13
Super. Ct. Civ. R. 56(c).
14
Guy v. Judicial Nominating Comm’n, 659 A.2d 777, 780 (Del. Super. Ct. 1995).
15
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
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Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
in either the December or March letter were libelous. Rather, Defendant maintains
that he was simply expressing his concerns that Plaintiff would not recuse herself
from the November hearing in spite of her alleged conflict, and thus the statements
are constitutionally protected expressions of opinion. Alternatively, Defendant
contends that he is entitled to summary judgment because Plaintiff, as a public
official, is unable to demonstrate that a reasonable jury would find clear and
convincing evidence of actual malice as required under New York Times Co. v.
Sullivan.16
A statement is defamatory “if it tends to harm the reputation of another as to
lower him in the estimation of the community or to deter third persons from
associating or dealing with him.”17 Under Delaware law, a plaintiff in a defamation
action must plead and ultimately prove that “1) the defendant made a defamatory
statement; 2) concerning the Plaintiff; 3) the statement was published; and 4) a third
party would understand the character of the communication as defamatory.”18
Additionally, a plaintiff who is a public figure must also plead and prove that 5) the
16
376 U.S. 254 (1964); see also Anderson v. Liberty Lobby, 477 U.S. 242, 254 (1986) (when
determining whether a genuine factual issue exists as to actual malice in a libel suit brought by a
public figure, “there is no genuine issue if the evidence presented in the opposing affidavits is of
insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and
convincing evidence”).
17
Spence v. Funk, 396 A.2d 967, 967 (Del. 1978) (quoting Restatement (First) of Torts § 559
(1938)).
18
Doe v. Cahill, 884 A.2d 451, 463 (2005) (citing Read v. Carpenter, 1995 WL 945544, at
*2 (Del. Super. 1995)). Defendant has conceded that the Plaintiff has met her burden of proof as to
the second and third requirements.
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Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
statement is false19 and 6) that the defendant made the statement with actual malice.20
At oral argument, Defendant argued that Plaintiff’s claim fails chiefly because
she did not plead and prove actual malice. But the threshold issue in any libel action
is whether the statements are, in fact, defamatory.21
Whether a statement is
defamatory is a question of law that is proper for this Court to resolve.22 In answering
this question, Delaware courts must determine first whether the alleged defamatory
statements are expressions of fact or protected expressions of opinion.23 Generally,
a statement must be one of fact to be actionable.24 In contrast, most expressions of
opinion are protected by the First Amendment and are not actionable.25
1. Are The Statements Defamatory?
Plaintiff contends that the December and March letters are libelous because
they allege that she engaged in an extramarital sexual affair with the chief of police
of the Milton Police Department. Although neither letter makes this direct allegation,
19
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1984).
20
See New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964).
21
See Riley v. Moyed, 529 A.2d 248, 251 (Del. 1987) (holding that should a court find that
the statements at issue are not defamatory, it need not reach the actual malice issue).
22
Id.
23
Doe, 884 A.2d at 463 (quoting Riley, 529 A.2d at 251)).
24
Riley, 529 A.2d at 251.
25
Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)).
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C.A. No. K11C-08-001 WLW
September 26, 2012
Delaware law recognizes a cause of action for libel by implication.26 However, when
alleging libel by implication, a plaintiff must make an especially rigorous showing.27
To qualify as an actionable statement, “the language must ... be reasonably read to
impart false innuendo.”28 Furthermore, to demonstrate the requisite level of intent,
the language must “affirmatively suggest that the author intends or endorses the
reference.”29 The Court finds there is nothing within the body of either the December
or March letter that could impart the defamatory implication that Plaintiff was
engaged in an extramarital affair. Defendant never uses the word “affair,” nor alludes
to the existence of Plaintiff’s alleged adultery. The plaintiff has not proved that,
when read in context, the “allegations” and “perceptions” to which Defendant alludes
refer to rumors of Plaintiff’s infidelity.
Nonetheless, the Court finds that these letters are capable of defamatory
meaning to the extent that they charge Plaintiff with ethical impropriety. Whether
Defendant’s statements are, in fact, actionable turns on whether they are in the form
of opinions that are absolutely privileged. Only pure expressions of opinion are
constitutionally protected.30 As the Delaware Supreme Court explained in Riley, a
26
Klein v. Sunbeam Corp., 94 A.2d 385, 390 (Del. Super. 1985) (citing Rice v. Simmons, 2
Harr. 417, 429 (Del. 1839)).
27
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993).
28
Id. at 1092-93.
29
Id.
30
Gertz v. Robert Welch, Inc., 418 U.S. at 339-40.
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C.A. No. K11C-08-001 WLW
September 26, 2012
pure opinion “is one that is based on stated facts or facts that are known to the parties
or assumed by them to exist.”31 Pure opinions are distinguished from “mixed”
opinions, which, “while an opinion in form or context ... gives rise to the inference
that there are undisclosed facts that justify the forming of the opinion expressed by
the defendant.”32 The actionable element of a mixed opinion is not the opinion itself,
but rather the underlying factual assertions that support the speaker’s opinion.33
In Gannett Co. v. Kanaga, the Delaware Supreme Court clarified this often
blurry distinction.34 In Kanaga, the petitioner, an obstetrician-gynecologist, sued a
newspaper, a former patient, and a reporter for libel after the newspaper published an
article alleging that the doctor had recommended a course of treatment for pecuniary
gain.35 The article, entitled “Patient feels betrayed-Says proposed hysterectomy
wasn’t needed,” quoted the patient as stating that she “could only conclude that Dr.
Kanaga ... chose the treatment plan that was most profitable to her with no concern
for me.”36 The trial court granted Defendant’s motion for summary judgment on the
grounds that the statement was constitutionally protected as an expression of the
31
Riley, 529 A.2d at 251.
32
Restatement (Second) of Torts § 566 cmt. b (1977). For example, to say that a person is
a thief without saying why may, depending on the circumstance, imply that the subject of the
communication has committed thievery. Id.
33
Rammuno v. Cawley, 705 A.2d 1029, 1036 (Del. 1998).
34
Gannett Co., Inc., v. Kanaga, 687 A.2d 173 (Del. 1996).
35
Id. at 173.
36
Id. at 176.
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C.A. No. K11C-08-001 WLW
September 26, 2012
patient’s pure opinion.37
The Supreme Court reversed on the basis that the
defamatory material, although expressed as an opinion, implied the existence of
undisclosed facts.38 Since it was not clear that an ordinary reader would conclude that
“he or she was being offered pure conjecture,” the court held that the issue of whether
the article was defamatory was for the jury.39
As in Kanaga, the statements Defendant made in the December and March
letters suggest a defamatory factual basis that is not disclosed by the speaker. The
written statements in question disparage Plaintiff’s fitness to serve on the town’s
council on the basis of an apparent ruling from the state Public Integrity Commission.
It is unclear from the record whether this ruling was publicly disseminated. In fact,
Defendant testified that he was one of only a handful of officials that had received a
copy of the alleged ruling from the town’s solicitor. Drawing all reasonable
inferences in favor of the Plaintiff, an ordinary reader could infer, from Defendant’s
letters, the existence of undisclosed facts which are capable of being proved true or
false. Those facts include a) that Plaintiff was, in fact, the subject of a Commission
investigation, and b) that she had violated the state employees’s code of conduct.
Since it is not “clear to the reader that he is being offered conjecture and not solid
37
Id.
38
Id. at 181. The court gave a number of facts that a reader could surmise from the article,
including, for example, that “Dr. Kanaga knew or believed that the recommended hysterectomy was
not necessary,” and that “Dr. Kanaga’s motive was the personal gain she would receive, without
concern for the patient, by recommending the more expensive hysterectomy rather than [a]
myomectomy.” Id.
39
Id.
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C.A. No. K11C-08-001 WLW
September 26, 2012
information,” 40 the issue of whether the statements in question constitute a mixed or
a pure opinion is one for the jury.
2. Were The Statements Made with Actual Malice?
Assuming that a jury could find that the statements in question were libelous,
Defendant contends that Plaintiff’s libel claim must fail as a matter of law because
she has failed to adequately plead that Defendant’s statements were made with actual
malice. The Court agrees.
Municipal council members are public officials;41consequently, they must plead
and prove that allegedly defamatory statements were published with actual malice to
prevail in a libel action.42 A defamatory statement is made with actual malice when
it is made with actual knowledge that it is false or with reckless disregard as to its
truth or falsity.43 The U.S. Supreme Court has repeatedly held that, at the summary
judgment stage, the plaintiff bears the burden of proving the element of malice with
40
Milkovich v. Lorain Journal Co., 497 U.S. 1, 36 (1990) (Brennan, J., dissenting).
41
See, e.g., Doe v. Cahill, 884 A.2d 451 (Del. 2005) (Elected town council member is a public
figure under the rule set forth in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and thus,
must provide clear and convincing proof of “actual malice” to recover damages for a defamatory
falsehood relating to his or her official conduct); see also Rosenblatt v. Baer, 383 U.S. 75 (1966)
(holding that the “public official” designation applies at the very least to those among “the hierarchy
of government employees who have, or appear in public to have, substantial responsibility for or
control over the conduct of governmental affairs”).
42
New York Times Co., 376 U.S. at 279-80 (1964).
43
Ross v. News-Journal Co., 228 A.2d 531, 532 (Del. Super. 1967).
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Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
“clear and convincing” evidence.44 Although the quantum of proof with respect to
falsity has yet to be addressed by the Delaware Supreme Court, this court has adopted
a position consistent with the authority cited herein.45
Plaintiff relies on the Delaware Supreme Court’s decision in Doe v. Cahill to
support her assertion that she need not prove the actual malice element to survive a
motion for summary judgment. This reliance is misplaced. Although it is true that,
in Doe, the Delaware Supreme Court eliminated the requirement that public figure
plaintiffs plead and prove evidence of actual malice to survive a summary judgment
motion, it only did so in the context of those plaintiffs seeking to obtain the discovery
of an anonymous defendant’s identity.46 Doe cannot be read for the proposition that,
to survive a summary judgment motion, a public figure plaintiff need not produce
evidence on this element of her libel claim. Therefore, since the identity of the
defendant in the present case is not at issue, Plaintiff must carry her burden of proof
44
See Rosenbloom v. Metromedia, 403 U.S. 29, 30 (1971); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986). In Liberty Lobby, the U.S. Supreme Court noted that “in ruling on a motion
for summary judgment, the judge must view the evidence presented through the prism of the
substantive evidentiary burden,” namely, the “clear and convincing” standard. Liberty Lobby, 477
U.S. at 254.
45
See, e.g., Ramada Inns, Inc. v. Dow Jones & Co., Inc., 543 U.S. 313, 319-320 (Del. Super.
1987).
46
See Doe, 884 A.2d at 464 (eliminating this pleading requirement in situations where a
defamation plaintiff seeks to obtain the identity of an anonymous defendant). The Supreme Court
made this exception because “without discovery of the defendant’s identity, satisfying this element
may be difficult, if not impossible.” Id. (emphasis added). Although dicta, this language suggests
that the court intended to cabin its holding in Doe to defamation actions against an anonymous
defendant.
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Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
for this element to survive Defendant’s summary judgment motion.
Plaintiff has submitted no proof that Defendant submitted his letter to the Cape
Gazette with knowledge of, or reckless disregard, of its veracity. Defendant testified
that he had received a copy of the Commission’s ruling from the town solicitor, and
had relied upon it when making the allegedly libelous statements. Plaintiff does not
dispute that she was the subject of an investigation by the Commission. Even
assuming the non-existence of this ruling, of which neither party has submitted proof,
Plaintiff has failed to produce evidence that Defendant entertained serious doubts as
to its veracity at the time that he wrote the letters to the Cape Gazette. Mere
inferences that Defendant harbored personal animosity for Plaintiff are not enough
to meet the evidentiary burden she must carry to resist summary judgment. Because
Plaintiff has failed to come forward with clear and convincing evidence that supports
a finding of actual malice, Defendant is entitled to summary judgment on Plaintiff’s
defamation claim.
B. Statutory Claim
Defendant also seeks summary judgment as to his alleged statutory breach.
Specifically, he argues that he was under no statutorily imposed duty to maintain the
confidentiality of state Public Integrity Commission’s rulings. In her complaint,
Plaintiff alleges that Defendant breached 29 Del. C. § 5807(d) by disclosing that she
was the subject of a ruling issued by the state Public Integrity Commission. Section
5807(d) addresses the confidentiality of the Commission’s advisory opinions, and
states:
(d) Any application for an advisory opinion, any proceedings and any decision
12
Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
with respect thereto shall be maintained confidential by the Commission ... .47
Defendant contends that a plain reading of the statute compels the conclusion that the
duty of confidentiality imposed by this section of the Code extends only to
Commission members.
The rules of statutory construction are well-settled. They are “designed to
ascertain and give effect to the intent of the legislators, as expressed in the statute.”48
At the outset, the court must determine whether the provision in question is
ambiguous.
A statute is ambiguous if it is “reasonably susceptible of two
meanings.”49 If it is unambiguous, no statutory construction is required, and the
words in the statute are given their plain meaning.50
The language of Section 5807(d) is plain and unambiguous. It imposes a duty
solely on the members of the Public Integrity Commission to maintain the
confidentiality of the advisory opinions, proceedings and decisions issued by the
Commission. Even if Defendant received the Commission’s findings on Plaintiff’s
potential conflict by virtue of his mayorship, as Plaintiff alleges, he was under no
duty to withhold the findings from the public. Since Plaintiff has not proved that the
Code extends this duty of confidentiality to state employees or ordinary citizens,
47
29 Del. C. § 5807(d) (emphasis added).
48
Chase Alexa, LLC v. Kent County Levy Court, 991 A.2d 1148, 1151 (Del. 2010).
49
Dewey Beach Enter., Inc. v. Bd. of Adjustment of Town of Dewey Beach, 1 A.3d 305, 307
(Del. 2010).
50
Chase, 991 A.2d at 1151.
13
Rhonda Abraham v. Don Post
C.A. No. K11C-08-001 WLW
September 26, 2012
Defendant is entitled to judgment as a matter of law on Plaintiff’s statutory claim.
For the foregoing reasons, Defendant’s motion for summary judgment is hereby
granted. IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh
14
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