HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/VANST.ASC

Text File | 1993-01-14 | 27KB | 523 lines

/* This case is reported in 447 N.W.2d 105 (Wisc. App. 1989).
This is one of the few prisoner cases which does not solely
involve the legality of being placed in a cell with persons with
HIV. Instead the case is one concerning privacy of prisoner's HIV
status. */

Dennis J. Van Straten, Plaintiff- Appellant,

v.

Milwaukee Journal Newspaper-Publisher, Milwaukee Sentinel
Newspaper-Publisher, Appleton Post-Crescent Newspaper-Publisher,
Wausau Daily Herald Newspaper-Publisher, Oshkosh Northwestern
Newspaper-Publisher, and Green Bay Press Gazette Newspaper-
Publisher, Defendants- Respondents



CANE, Presiding Judge.

Dennis Van Straten appeals a summary judgment in favor of
Milwaukee Journal Newspaper, et al (newspapers), dismissing his
actions for violation of confidentiality under sec. 146.025(5),
Stats., defamation, and invasion of privacy against six Wisconsin
newspapers and some of their employees. The circuit court held
that Van Straten failed to comply with sec. 802.08(3), Stats.,
requiring the responding party to a motion for summary judgment
to set forth specific facts showing that there is a genuine issue
for trial. The circuit court found that even disregarding this
failure, the newspapers were entitled to summary judgment because
Van Straten was a limited purpose public figure and he failed to
make the required showing of actual malice. Additionally, the
circuit court concluded that even if Van Straten was not a
limited purpose public figure, the newspapers that relied on a
wire service for the contents of their articles about Van Straten
were not negligent as a matter of law. Because we agree that Van
Straten was a limited purpose public figure who did not show
actual malice, we affirm the summary judgment.

/* Under the oft cited series of cases beginning with New York
Times v. Sullivan, public figures may not sue for defamation
unless there is either reckless disregard for the truth or malice
in publishing. */

Van Straten attempted suicide on October 24,1985, while he was an
inmate awaiting trial at the Outagamie County Jail. He was taken
to a local hospital where he received  more  than  forty
stitches  to wounds on his wrist and forearm. He was then
involuntarily admitted to the Winnebago Mental Health
Institution  (WMHI) where his blood was tested for exposure to
the AIDS virus.  After returning to the Outagamie County Jail,
Van Straten was informed, on November 8, that he had tested
positive to exposure to the AIDS virus. He voluntarily
transferred back to WMHI, but he never consented to a disclosure
of any medical information to anyone.

On November 13, 1985, Outagamie County Sheriff Thomas Drootsan,
informed reporters from the Appleton Post-Crescent Newspaper that
jail personnel knew Van Straten was homosexual and that he
exposed jailers to AIDS when he slashed his wrists during the
suicide attempt.  The Post-Crescent published a newspaper report
on November 13 entitled "Sheriff vows he won't take AIDS
prisoner." The report stated that Sheriff Drootsan would not
accept a prisoner back into his jail who tested positive for
exposure to the deadly AIDS virus, and who in a suicide attempt
sprayed two jailers with his blood.  The article also reported
that jail deputies had requested the testing of Van Straten's
blood because he was "a known bisexual, [and] had previously made
his many homosexual experiences common knowledge." The article
referred to the sheriff's conviction that guidelines and policies
for handling AIDS in the jail setting should be developed in
order to protect jail personnel and prisoners.

On November 14, 1985, an official from the Public Affairs Office
of the Department of Health and Social Services (DHSS) contacted
an Appleton Post-Crescent reporter and told him that Van Straten
did not have AIDS, but merely tested positive for HTLV-3
(exposure to the AIDS virus). The DHSS official stated that
Sheriff Drootsan and others were overreacting to the situation.
On the same day, the Appleton Post-Crescent printed an article
reporting the information given by the DHSS official.

On November 15, Van Straten contacted a reporter from the
Appleton Post-Crescent to rebut the allegations about him in
earlier stories printed in the Post-Crescent. Among the
allegations he denied were that he squirted jail personnel with
his blood, that he is a known homosexual or bisexual, and that he
has AIDS. [footnote 1]

/* The court perhaps without stating so explicitly finds a waiver
of confidentiality since the plaintiff in the suit decided to
"try his case in the press."

 On the same day, the Appleton Post-Crescent printed an article
entitled "AIDS prisoner tells his side," reporting the substance
of the interview with Van Straten.

On December 11,1985, Van Straten was tried and convicted of the
crimes for which he was held awaiting trial in the Outagamie
County Jail. At Van Straten's request, a WMHI doctor wrote to the
sentencing judge to confirm that Van Straten had tested positive
for AIDS.  Van Straten also wrote a letter to the judge asking
for a lighter sentence because he had AIDS. [footnote 2]

/* Other cases have held that if the HIV status of a person is
revealed in court records, it is no longer privileged from
disclosure-- one of the reasons for many cases being brought by
"John Doe." */

The Appleton Post-Crescent printed additional articles following
up on the initial stories. These articles, like the first, were
based on interviews with the jail personnel involved.  Many of
the later articles mention Van Straten and the suicide attempt
only as incidental to Sheriff Drootsan's campaign to develop
policies in the state correctional system for the handling of
AIDS-infected inmates.  The last article Van Straten complained
of was dated April 12,1987.

From the beginning, the Associated Press (AP) adopted the Post-
Crescent articles and transmitted them via the wire service.
Several Wisconsin newspapers, including the rest of the defendant-
newspapers, republished the AP reports. These reports also
continued for the next couple of years.

Van Straten brought suit against the newspapers, claiming that
statements published in their newspapers defamed him, invaded his
privacy, and violated his right to confidentiality of the AIDS
test results. The newspapers moved for summary judgment, and the
trial court granted the motion in favor of all the defendants.

On appeal, Van Straten argues that the trial court erred by
holding that he was a limited purpose public figure for purposes
of the AIDS controversy and that even if he was, he met his
burden of showing actual malice.  Alternatively, Van Straten
argues that he was denied adequate discovery opportunity, thus
disabling him from making the required showing. Finally, Van
Straten argues that the trial court erred by granting summary
judgment in his invasion of privacy and violation of
confidentiality claims.

When reviewing a grant of summary judgment, we must apply the
standards and methods set forth in sec. 802.08, Stats. According
to this standard of review, we must uphold a grant of summary
judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Sec. 802.08(2), Stats. Thus, this court will
reverse the judgment of the circuit court only if it incorrectly
decided a legal issue or if material facts are in dispute. Prince
v. Bryant, 87 Wis.2d 662, 666, 275 N.W.2d 676, 678 (1979).

DEFAMATION CLAIM

The elements of a defamation claim, as stated in Restatement
(Second) of Torts, sec. 558 (1977), include:

(a)  a false and defamatory statement concerning another;

(b)  an unprivileged publication to a third party;

(c)  fault amounting at least to negligence on the part of the
publisher; and (d) either actionability of the statement
irrespective of special harm or the existence of special harm
caused by the publication.

The United States Supreme Court, in New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964),
established a constitutional element in defamation claims.  It
held that the first and fourteenth amendments require a public
official bringing a defamation claim to prove "actual malice."
Id. at 27~83, 84 S.Ct. at 725-28.

The definition of a "public official" has expanded since the New
York Times decision.  In Gertz v. Robert Welch, Inc., 418 U.S.
323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974), in addition
to "public officials," two types of "public figures" were
discussed. The first type is the person who has such a pervasive
fame or notoriety that he or she may be deemed a public figure
for all purposes. The second type is one who, by being drawn in
or injecting himself or herself into a public controversy,
becomes a public figure for a limited range of issues.  The
Wisconsin Supreme Court has agreed that whether a plaintiff is a
public figure for all purposes or a public figure for a
particular controversy, he or she must establish that the news
media acted with actual malice. Lewis v. Coursolle Broadcasting,
127 Wis.2d 105, 119, 377 N.W.2d 166, 172 (1985).

Our supreme court has delineated criteria applicable to whether a
defamation plaintiff may be considered a limited purpose public
figure. The two requirements, as established in Denny v. Mertz,
106 Wis.2d 636, 649-50, 318 N.W.2d 141,147, cert. denied, 459
U.S. 883,103 S.Ct. 179, 74 L.Ed.2d 147 (1982), are that: (1)
there must be a public controversy; and (2) the court must look
at the nature of the plaintiff's involvement in the public
controversy to see whether he has injected himself into the
controversy so as to influence the resolution of the issues
involved.  The Denny court, relying on Gertz, emphasized the
importance of the factors that the plaintiff's status is such
that he has access to the media in order to rebut the defamation
and that the plaintiff voluntarily exposed himself to the
controversy, thereby increasing risk of injury from defamation.
Denny, 106 Wis.2d at 650, 318 N.W.2d at 147-48.

In Wiegel v. Capital Times Co., 145 Wis.2d 71, 426 N.W.2d 43
(Ct.App.1988), we discussed a three-step inquiry used by the
federal courts to determine whether one may be considered a
limited purpose public figure. [footnote 3] The three steps
include: (1) isolating the controversy at issue; (2) examining
the plaintiff's role in the controversy to be sure that it is
more than trivial or tangential; and (3) determining if the
alleged defamation was germane to the plaintiff's participation
in the controversy. Id. at 82-83, 426 N.W.2d at 49.  In Wiegel,
we noted that the Denny criteria emphasizes the voluntariness of
the plaintiff's involvement in the controversy and that the
federal inquiry focuses on the plaintiff's role in the
controversy rather than on any desire for publicity or other
voluntary act on his part.  Wiegel, 145 Wis.2d at 83-84, 426
N.W.2d at 49.

We adopted the federal analysis in Wiegel for three reasons.
First is the fact that the Gertz Court recognized that "voluntary
injection" into a controversy is only one way of becoming a
limited purpose public figure and that a person can be drawn into
a particular public controversy and thereby become a public
figure for a limited range of issues. Second, we noted that
Professor Tribe has concluded that "public persons include
involuntary public figures-those who are "involved in or directly
affected by the actions of public officials." [footnote 4] Third,
we looked to the purpose served by protecting the press from
defamation suits for comment on people involved in public issues
and concluded that this purpose "could well be frustrated if the
individuals could, by themselves and wholly independent of their
involvement in the controversy, determine whether they are, or
are not, 'public figures.'"  Wiegel, 145 Wis.2d at 85, 426 N.W.2d
at 50.

[1]  In applying these steps to the present case, we must first
determine whether the events surrounding Van Straten's suicide
attempt constitute a public controversy. The trial court found
that in 1985, at the time of the suicide attempt, there was
initial reporting and publication of information regarding AIDS,
the effect it would have on the public, and the effect it would
have on the prison system and county jail system in Wisconsin.
The newspapers argue that issues of the AIDS epidemic, its
victims' ordinary right to keep their medical records
confidential, and the dangers to public servants who deal with
AIDS victims all preexisted Van Straten's suicide attempt.
Additional factors indicating that a public controversy existed
are that Sheriff Drootsan felt compelled to contact reporters to
publicize his campaign to initiate statewide policies and
procedures to deal with inmates suspected of having AIDS, and
that the AP, recognizing the news to be of statewide interest,
promptly moved the report to all of its Wisconsin members on the
very day that the Appleton Post-Crescent ran its story.

[2]  The second step is to examine Van Straten's role in the
controversy. The trial court found that his involvement was not
tangential but, rather, was at the heart of the controversy.  The
newspapers argue that Van Straten placed himself in the public
eye by choosing to slit his wrists causing jailers to fear
contracting AIDS from his blood. They assert that it was natural
that Van Straten's conduct would put him at the vortex of Sheriff
Drootsan's challenge to the confidentiality of AIDS test results.
We agree that the second step has been satisfied.  Even though
Van Straten claims that he never intended to draw public
attention to himself, this is irrelevant. See Lewis, 127 Wis.2d
at 117, 377 N.W.2d at 171.

The third step is to determine if the alleged defamation was
germane to Van Straten's participation in the controversy over
jail safety and confidentiality of AIDS testing. The statements
Van  Straten claims to be defamatory can be grouped into three
general topics: (1) Van Straten's sexual preference;  (2) the
diagnosis of AIDS (and the referral to Van Straten as an "AIDS
prisoner"), and (3) the jail deputies' exposure to Van Straten's
blood during the suicide attempt (that Van Straten sprayed or
spattered them with his blood).

It seems clear that none of the newspapers printed statements
concerning these three topics for any news value they might have
had in and of themselves,  Rather, the statements were printed in
connection with and to emphasize the problems of jail safety and
confidentiality of AIDS testing.

/* Unfortunately this is objectively false reasoning in an
otherwise well crafted opinion. If the newspapers just wanted to
talk about jail safety they could have stated that `a male
prisoner.....' did so and so. If the only reason that the case
was important was what happened, not to whom or by whom-- same
result. */



The newspapers argue that they reported Van Straten was
homosexual because male homosexuals run the highest risk of AIDS
infection. They reported that his homosexuality was known because
it was this knowledge that made the jailers afraid of contracting
AIDS. They reported that Van Straten had AIDS and the manner in
which deputies came into contact with his blood to explain why
the deputies were afraid and to place in context Sheriff
Drootsan's public challenge to existing state law and policy.

After applying the three-step test, there is no doubt that AIDS
and the issue of how to deal with it in the jail system was a
controversy of substantial interest, which affected persons
beyond the immediate participants in the controversy at the
Outagamie County Jail during the suicide attempt; that Van
Straten's role in the controversy was neither trivial nor
tangential; and that statements concerning Van Straten's sexual
preference, the diagnosis of AIDS and the manner in which jailers
came into contact with Van Straten's blood were germane to the
controversy.  It is also significant that the concern in Gertz
and Denny, that the plaintiff have access to the media in order
to rebut the defamation, has been alleviated in this case. Two
days after the first article appeared in the Appleton Post-
Crescent, Van Straten was able to telephone a reporter from that
newspaper, and, on that same day, an article was published
containing Van Straten's version of the incident.  We hold that
Van Straten was a limited purpose public figure so far as the
events surrounding the suicide attempt are involved.

Because of his status as a limited purpose public figure, Van
Straten must recite some facts showing that the newspapers
printed the statements with actual malice. Whether the undisputed
facts in this case fulfill the legal standard of actual malice is
a question of law.  Lewis, 127 Wis.2d at 120, 377 N.W.2d at 173.
Actual malice has been defined as knowledge that the statement
was false or reckless disregard as to whether it was false.  New
York Times, 376 U.S. at 279-80, 84 S.Ct. at 72526. The focus is
upon the defendant's attitude pertaining to the truth or falsity
of the published statements rather than upon any hatefulness or
ill-will.  Cantrell v. Forest City Pub. Co., 419 U.S. 245, 252,
95 S.Ct. 465, 470, 42 L.Ed.2d 419 (1974). The plaintiff must show
"that the defendant in fact entertained serious doubts as to the
truth of his publication." St. Amant v. Thompson, 390 U.S. 727,
731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968).  The United
States Supreme Court held in Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255-56,106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986),
that the first amendment requires courts to apply the "clear and
convincing evidence" standard to test defamation claims, whether
at trial or in summary judgment motions.

Van Straten argues that he recited sufficient facts establishing
actual malice by showing that the newspapers did not investigate
and confirm the truth of the statements before publishing them.
He also argues that the fact that he contacted an Appleton Post-
Crescent reporter and told him that the statements were false,
the fact that a DHSS official also contacted a reporter to inform
him that there had been no diagnosis of AIDS, and the fact that
the media nevertheless continued to publish the statements,
constitute actual malice.

[3] The newspapers argue that Van Straten did not show actual
malice because actual malice does not exist when they merely
relied upon statements made by Sheriff Drootsan, other jail
personnel, and the AP for their information,  Although Van
Straten did contact an Appleton Post-Crescent reporter to rebut
the statements, it is undisputed that Van Straten himself later
indicated that he had AIDS to his sentencing judge. The
newspapers also argue that any evidence that they received
information from the DHSS official concerning the AIDS diagnosis
would create a genuine issue of material fact as to the actual
malice question only if there was also evidence that the
information made the reporters and editors actually doubt the
reports they received from other sources. Van Straten offered no
such evidence. The trial court concluded that Van Straten failed
to produce sufficient evidence that would raise the newspapers'
conduct to the level of actual malice.

We agree with this conclusion.  First, it is clear that mere
proof of failure to investigate the accuracy of a statement,
without more, cannot establish reckless disregard for the truth.
Gertz, 418 U.S. at 332, 94 S.Ct. at 3003. Second, the vast
majority of information received by the newspapers was from
Sheriff Drootsan and other jail personnel and was to the effect
that Van Straten was a known homosexual or bisexual, that he had
AIDS, and that he squirted jail personnel with his blood.
Although Van Straten denied the truth of these statements, he
gave conflicting information at different times, at least as to
whether he had AIDS. The DHSS official was the only person who
unwaveringly challenged the information that Van Straten had
AIDS. Affidavits filed by newspapers state that they did not
doubt the truth of statements they  printed  concerning  Van
Straten. Without some evidence that the newspapers actually
entertained serious doubts as to the truth of the publications,
we agree with the trial court that Van Straten failed to
demonstrate actual malice.

Van Straten further argues that if he has not shown actual
malice, it is only because he was denied adequate discovery
opportunity when the trial court rejected his July ~1, 1988,
motion to extend the time until the September summary judgment
hearing.  "The standard of review of trial court discovery
decisions is whether the trial court abused its discretion by
ordering or prohibiting discovery."  Vincent & Vincent, Inc. v.
Spacek, 102 Wis.2d 266, 270, 306 N.W.2d 85, 87 (Ct.App.1981). The
appellant has the burden of showing that the trial court abused
its discretion, and we will not reverse unless such abuse is
clearly shown.  Swan Sales Corp. v. Jos. Schlitz Brew. Co., 126
Wis.2d 16, 28, 374 N.W.2d 640, 647 (1985).

The trial court noted that almost a year had elapsed between the
initiation of the present case and the summary judgment hearing.
Van Straten had an opportunity during that time to obtain
evidentiary facts through discovery and had not done so. The
court also noted that this is not the first time that some of the
newspapers have been subjected to a lawsuit containing the
allegations made by Van Straten, and yet he produced no
admissible facts to the court.

Section 802.08(4) provides that the trial court may refuse a
motion for summary judgment or may order a continuance to permit
discovery if the party opposing the motion states, in affidavit
form, the reasons why it cannot present facts essential to
justify its opposition to the summary judgment motion.  Van
Straten did not submit such an affidavit even though he was
specifically informed of this requirement by the newspapers after
he filed the extension motion.  Because the record reflects ample
discovery opportunity and because Van Straten failed to comply
with sec. 802.08(4), we find that the trial court did not abuse
its discretion.

In summary, we find that Van Straten was a limited purpose public
figure and that he showed no actual malice. Because he failed to
meet this element of his defamation claim, summary judgment was
appropriate.

[4]  Additionally, even if Van Straten was not a limited purpose
public figure and thus only had to demonstrate negligence on the
part of the newspapers, [footnote 5] we conclude that he failed
to do so. There is no indication that the newspapers, other than
the Appleton Post-Crescent, relied on anything other than a wire
service for the contents of their reports.  We agree with the
trial court's conclusion that generally, newspapers that rely on
the accuracy of a wire service release are not negligent as a mat
ter of law, Brown v. Courier Herald Publishing Co,, 700 F.Supp.
534, 53638 (S.D. Ga.1988); Nelson v. Associated Press, Inc., 667
F.Supp. 1468, 1480 (S.D.Fla.1987); Appleby v. Daily Hampshire
Gazette, 395 Mass, 32, 478 N.E.2d 721, 72526 (1985). Also, we
conclude that the evidence produced by Van Straten does not
demonstrate negligence on the part of the Appleton Post-Crescent.



INVASION OF PRIVACY

[5]  Van Straten claims that the newspapers invaded his privacy
by publishing the statements about him concerning his sexual
preference, his diagnosis of AIDS, and his suicide attempt.
Section 895.50(2)(c), Stats., sets forth the elements needed to
prevail in an invasion of privacy claim. The relevant subsection
states:

Publicity given to a matter concerning the private life of
another, of a kind highly offensive to a reasonable person, if
the defendant has acted either unreasonably or recklessly as to
whether there was a legitimate public interest in the matter
involved, or with actual knowledge that none existed,  It is not
an invasion of privacy to communicate any information available
to the public as a matter of public record.

Both sec. 895.50(2)(c) and Wisconsin case law state that where a
matter of legitimate public interest is concerned, no cause of
action for invasion of privacy will lie. Newspapers, Inc., v.
Breier, 89 Wis.2d 417, 431, 279 N.W.2d 179,186 (1979). We have
already determined that the events surrounding Van Straten's
suicide attempt constitute a public controversy in a defamation
suit context,  We hold that this determination, in this case,
also satisfies the definition of a "legitimate public interest"
in an invasion of privacy suit context. See Goldman v. Time,
Inc., 336 F.Supp. 133,137-38 (N.D.Cal. 1971) (plaintiff cannot
avoid the impact of the New York Times rule merely by labeling
his action as one for invasion of privacy rather than libel).
Thus, because Van Straten failed to meet an element of his
invasion of privacy claim, summary judgment was appropriate.



CONFIDENTIALITY

[6]  Van Straten argues that he was deprived of his right to
confidentiality under sec. 146.025 when the newspapers published
reports that he had AIDS. Section 146.025(5) restricts the
disclosure of the results of a test for the presence of HIV
(human immunodeficiency  virus-the  cause  of AIDS) or an
antibody to HIV.  The trial court disregarded Van Straten's
argument because he did not state a claim under the statute.  The
trial court correctly determined that sec. 146.025 is directed
toward health care providers and blood banks, and not toward
newspapers. Section 146.025(6) prohibits further disclosure of
test results by persons learning of the results from the health
care provider or from the blood bank;  however, the newspapers
did not obtain the test results under either of those
subsections.  Therefore, summary judgment was appropriate.

Order affirmed.



FOOTNOTES

1.   The newspapers argue that during the interview, Van Straten
admitted that he had AIDS and that he had been suffering from
AIDS symptoms for months.  However, for purposes of this appeal,
we will assume as true the facts as alleged by Van Straten.

2.   Van Straten claims that at the time he wrote to the judge,
the newspapers had him believing he did have AIDS.

3.   The federal cases relied on by the Wiegel court are
Tavoulareas v. Piro, 817 F.2d 762, 772-73 (D.C.Cir.1987), cert.
denied, 484 U.S. 870, 108 S.Ct. 200, 98 L.Ed.2d 151(1987), and
Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98
(D.C.Cir.1980), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66
L.Ed.2d 128 (1980).

4.   Tribe, American Constitutional Law 880 (2d ed.1988), cited
in Wiegel, 145 Wis.2d at 84, 426 N.W.2d at 49.

5.   See Denny, 106 Wis.2d at 654. 318 N.W.2d at 150.