*1 Julie M. Lassa, Plaintiff-Respondent,
v. Valkyrie Group, LLC, and The Todd Defendants-Third-Party Plaintiffs-Appellants,† capacities, 1-5, their individual
Does Defendants, Family Insurance Company, American
Intervenor, v. Alex Paul, Third-Party Defendant.
Supreme Court argument No. 2004AP377. Oral November July —Decided
For the McGillivray, Garvey Garvey, Pamela R. Edward R. argument Stoddard, Madison, and oral S.C., & McGillivray and John Skilton. Pamela R. by Brady was filed C.
An amicus curiae brief Dillon, and Harrison, Brian A. Williamson, Kendall W. Godfrey Kahn, Madison, on behalf of & LaFollette Commerce, & Wisconsin Manufacturers
Wisconsin Newspaper Association, Broadcasters Asso- Wisconsin Liberties Union of Wisconsin ciation, American Civil Association, Realtors Wiscon- Foundation, Wisconsin Builders As- Association, and Wisconsin sin Bankers argument by Brady oral C. sociation, and there was Williamson. by David C.Bender
An amicus curiae brief was filed Madison, Law on behalf Wiscon- Offices, and Bender Democracy Campaign, Teachers, Inc. and Madison sin Inc. *7 BRADLEY,J. This case comes 1. ANN WALSH appeals. the court of It
to us on certification from discovery propriety requires and that we address Although underlying contempt defama- sanctions. prejudice, dismissed with we must tion lawsuit has been appeal issues that arose while nevertheless address pending. the defamation case was brought underlying ¶ 2. The defamation suit was Rongstad by against others, Todd Julie Lassa political including defendants, on a unknown based by organization An headed criticized Lassa. mailer that Working Rongstad, Wisconsin, sent the Alliance for Valkyrie Rongstad, along company, the with his mailer. judgment adopt- Group, appeals LLC, the circuit court parties' agreement, ing under which settlement prejudice agreed to her claim with Lassa dismiss Rongstad agreed pay attorney's $65,000 fees and failing comply forfeitures as sanctions for with dis- covery orders.1
¶ 3. asserts that the sanctions this essentially case cannot stand for four reasons: (A) erroneously The circuit court exercised its dis- by compelling discovery imposing cretion and privilege sanctions over his claim of constitutional before consid- ering complaint upon whether Lassa's stated a claim granted; which relief could be
(B)
incorrectly applied
The circuit court
the consti-
balancing
tutional
Alabama,
test under NAACP v.
(1958),
interpreting
U.S. 449
and other cases
it;
(C) Rongstad made a "substantiated assertion of
privilege"
Alt,
under Burnett v.
(D) severity imposed of the sanctions bore no relationship Rongstad's rational conduct or to the by harm suffered Lassa. Rongstad argues In addition, that we should superintending authority
exercise our to establish an interlocutory appeal right as a matter of in cases involving threatened sanctions for refusal to disclose upon privi- information based claims of constitutional lege. 5. We address the issues raised
arguments as follows:
(A) In cases, defamation circuit courts should ordi- narily pending decide a motion to dismiss for failure to
1Judge Michael N. presided Nowakowski over the circuit court proceedings until a substitution request resulted in a transfer of the Judge Maryann case to Sumi. refusing sanctioning party to a claim
state before identify would otherwise- disclose information that anonymous organization. the of an Under members the court did here, however, circumstances erroneously circuit compelling in discov- its exercise discretion Rongstad's deciding ery imposing and before sanctions to motion dismiss.
(B) rejected Rongstad's properly circuit court The balancing privilege test of the assertion of under the Rongstad failed to make NAACP line of cases because showing required preliminary support his factual assertion.
(C) showing applicability Alt in this has no case. Rongstad required one had to make was the under evidentiary NAACP, assertion" not a "substantiated of privilege under Alt.
(D) reject Rongstad's challenge severity We attorney's $65,000 in fees and forfeitures because parties circuit did not that amount —the set stipulation. did cannot claim that relationship to the $65,000 amount has no rational erroneously harm suffered or that the court exercised setting in Rather, its discretion the amount. the issue monetary pending the amount of sanctions was before parties stipulated $65,000. the court when the We challenge also determine that the sanc- liability judgment tion of default moot under parties' agreement.2 settlement 2 Four participating members of the court are this case. (D) (A) a majority opinion constitute Determinations above court, case. members Abra- this Three Chief Justice hamson, Butler, Bradley, majority Justice and Justice form the concurrence, See 95. In determina those determinations. (B) (C), tions Justice Abrahamson and Justice Brad Chief ley opinion. lead constitute a
¶ In super- addition, we decline to exercise our intending authority interlocutory appeal to establish an right a involving as matter of discovery in defamation cases questions sanctions that raise of a constitu- privilege.3 Accordingly, tional we affirm the circuit judgment.4 court Working
¶ 7. The Alliance for Wisconsin is a 501(c)(4)organization purpose whose main is "to educate public public policy about issues business, related to taxes and families Wisconsin on national, state and days general local level." A few before the election in criticizing November the Alhance sent a mailer Representative alleged then-State Lassa for connections majority to then-State Senate leader Chuck Chvala. Among things, ¶ 8. other the mailer said that Lassa wanted to become a senator, state so she "hooked up" "[n]obody with Chvala. The mailer also stated that promise gain knows for sure what she had to his approval." running 9. At the time, Lassa was for re- Assembly.
election to the time, Also at that Chvala had just charged including been felonies, with 20 extortion, public falsifying reports misconduct while in office, and 3 majority A case, of the court in this Chief Justice Abraha- mson, Bradley, Butler, Justice and Justice declines to exercise superintending our authority interlocutory to establish an appeal right as matter of involving defamation cases discovery sanctions questions raise of a constitutional privilege. concurrence, See 4 majority case, A of the court in this Chief Justice Abraha- mson, Bradley, Butler, agrees Justice and Justice the circuit judgment concurrence, must be affirmed. See 95 n.l. Board. mailer made the State Elections this images newspaper clipping
apparent including of a booking photograph. and Chvala's ¶ 10. The mailer concluded with this statement: Extortion, office, play, public pay misconduct *10 cheating stealing. lying, politics and Wisconsin has astray. call and gone completely Please Julie Lassa... tough you questions and them the the rest ask —did you your integrity, along did with an compromise play illegal game, you misuse tax to win elec- did dollars tions?
And, you your importantly, please up most will clean act? against
¶ 11. Lassa filed a defamation action Valkyrie Rongstad, Group, Alliance, the the and five capaci- in "Doe" their individual unknown defendants distributing publishing for their in ties role and considering At the time, mailer.5 she was whether to seat, her soon to run for district's state senate be immediately sought Rongstad depose She in vacant. to ascertain the identities of the "Does" order involved Rongstad's During deposition, in the mailer. Lassa questions regarding him asked who from the Alliance objected, may played Rongstad have a role the mailer. refusing a number of answer these and related asserting questions privilege. a constitutional parties ruling ¶ 12. The called the a court to obtain Rongstad argued privilege. of assertion membership questions pertained Lassa's to the constitutionally- Alliance and therefore involved Services, Inc., Mailing also A.M. as a defen Lassa named Mailing's in the mailer relevant dant. A.M. role is not this appeal. rights
protected speech of free and freedom of associa- tion under First Fourteenth Amendments. He including cases, NAACP, relied on a number of in which Supreme discovery- the United States Court invalidated a against refusing sanction the NAACP for to disclose membership lists to the State of Alabama the course of dispute. principles cases, Under the those Rongstad contended, Lassa was not entitled to discover identities Alliance members. hearing day, court ruled at a the next February 4, 2003. It that the which observed cases on Rongstad preliminary required showing relied factual probability compelled of a reasonable disclosure subject members' identities them threats, would reprisals government harassment, or from either offi- private cials or individuals. The court determined that showing. failed to such a he had, make Even if determined, Alliance members' associa- rights outweighed by tional were other interests that *11 required against the court to was balance the members' rights. explained, interests, These other the in- court clearing in cluded her Lassa's interest name and the preventing in libel, state's interest fraud and an interest during heightened campaigns. that is election Rongstad's ¶ The 14. court thus overruled consti- objection questioning. tutional Rongstad to Lassa's It ordered questions pertaining
to answer all to the identity preparation, of in the individuals involved funding, or distribution of the mailer. Although Rongstad's deposition
¶ continued, 15. February he moved the court to reconsider its 4 order apparent attempt in and submitted an affidavit an to required Specifically, Rong- showing. make the factual him stad averred that of the Alliance had told members identity compelled he to disclose the of if was that they longer organization, of would no be members the organization any participating or in the interested reprisal poten- public organization for fear of such again legal determined that action. court tial required preliminary Rongstad failed to make the fac- deeming conclusory showing, his affidavit tual Rongstad's motion Thus, the court denied insufficient. Rongstad to and ordered to submit a reconsider, to deposition. continued Rongstad sought challenge cir- 16. also the February appeals. 4 order in the court of He
cuit court's interlocutory appeals petitioned relief, for the court claiming rejecting the circuit court committed error privilege Ultimately, assertion of under NAACP. his pursue appeal, March however, he failed to and on appeals petition 4, 2003, the court of dismissed his for lapsed filing appeal after the time had for the leave arguments. interlocutory petition 17. While pending, he filed a motion to dismiss for relief was February argued He failure to state a claim none of communications in the motion that defamatory meaning, required capable mailer was days, Within to survive motion dismiss. two reply briefing circuit set schedule with briefs Rongstad object on March 28. did to this due request or a different schedule. schedule discovery dispute parties' interim, In the February 21, Lassa filed a motion for continued. On comply for failure with court-ordered dis- "sanctions covery," asserting comply had failed to previous requested orders. She with court's *12 impose contempt in that be held and the court 804.12(2)(a)4 (2003-04) § forfeitures under Wis. Stat. for of the any violation court's orders.6 In continuing addi- tion, she an award of requested attorney's fees under 804.12(2) (b) § a default judgment under 804.12(2)(a)3.7 § 19. At a February hearing on Lassa's
motion, her indicated the attorney that had governor called a for special election 1 to fill April open the state senate seat and that had Lassa decided to run for the seat, making it especially important she discover as soon possible as who was for in responsible the mailer to order clear her She name. asserted that Rongstad 6All to references the Wisconsin Statutes are to 2003-04 version. 804.12(2) § Wisconsin Stat. reads relevant part
follows: order, (a) comply party obey Failure to with If a ... fails to an provide permit discovery,... to or
order the court in which the may pending regard action is make such orders to the failure as just, among following: are others the rendering judgment by against 3. An ... order default party. disobedient any foregoing thereto, 4. In lieu of of the or in orders addition treating contempt obey any an order as a court failure except physical, orders an order to submit to a mental or voca- tional examination. Ob) any foregoing In lieu of orders or addition thereto, require failing obey party shall the order attorney advising party pay or the or both the reasonable including fees, failure, expenses, attorney by the caused unless the substantially justified court finds that the failure was or other expenses unjust. an circumstances make award 785.04(l)(c) § Wisconsin Stat. authorizes the circuit court to $2,000 impose daily as a forfeiture not exceed remedial day contempt sanction each that a of court continues. *13 questions concerning to continued to refuse answer anyone or a member had funded the Alliance was who con- counsel reiterated the of the Alliance. in that, his issues involved asserted stitutional complied discovery Rongstad view, had with the court's orders. Adding previous orders, its the circuit identity Rongstad to disclose the
court ordered anyone had or more to the who contributed $100 postponed hearing in 2002. The court Lassa's Alliance however, sanctions, motion for because concerns properly Rongstad had been served notice whether with 3, her motion on March of the motion. Lassa re-filed asserting Rongstad in 2003, that was violation of the February previous in its 28 order addition to court's orders. 11, 21. On March the court heard the motion. It Rongstad intentionally comply failed to with
found that Rongstad contempt. in the court's orders and that was appeared Rongstad it had lied court noted given and that he had answers under oath evasive designed providing to avoid the information ordered. It imposed attorney's $32,587 a sanction of in fees. In Rongstad beginning addition, it ordered that March pay per day $1,000 in the would forfeiture amount fully complied had until he with the court's orders. The judgment court declined to enter sanction of default against Rongstad, stated that it would entertain a but judgment liability motion for on issues as a default Rongstad comply if future sanction failed with discovery by April orders court's discovery parties' dispute ¶ 22. The nonetheless April and, continued on Lassa moved for default against liability judgment Rongstad issues, on all as- serting remained violation of the discovery Rongstad filed a motion for orders. court's arguing, contrast, that he was relief from sanctions compliance with the court's orders because relating provided documentation he Lassa with some requested In addition, to the Alliance. he contributions pending motion to dismiss that the court address his proceeding any other motions. before *14 Rongstad's request, ¶ with the 23. Consistent Rongstad's addressed motion to dismiss before court proceeding pending motions. It denied the on the other July concluding on that the mailer motion dismiss capable of a defa- contained communications that were meaning.8 matory August later, the cir- Several weeks Rongstad's motion for relief from
cuit court addressed judgment. a default sanctions and Lassa's motion for history began by thoroughly reviewing the The court parties' discovery dispute. In a oral deci- detailed Rongstad sion, court determined that was not compliance with orders and that he con- contempt. addition, In found to be in the court tinued egregious Rongstad's and in bad faith. conduct was relief from The court denied motion for judg- granted and Lassa's motion for default sanctions ment. hearing, subsequent the court deter- 25. At a attorney's appropriate fees remained an
mined that agreed a new statement of sanction. Lassa to submit Rongstad attorney's approval, for the court's fees object agreed to fees he to address statement discovery dispute. The court to the deemed unrelated had been proceedings, in the the case By point this Judge Sumi. Judge from Nowakowski transferred attorney's decision on the final amount of fees withheld proper and on the amount of forfeitures for further proceedings. Shortly parties thereafter, instead sub- agreement provided mitted a settlement to the court. It agree underlying to dismiss the that Lassa would defa- prejudice Rongstad mation claim with and that would judgment against stipulated him consent to a for a $43,000 $65,000, amount of contempt-related attorney's with considered to be $22,000
fees and consid- payable ered to agreement be forfeitures school fund. The also stated that reserved certain rights appeal. judgment
¶ 27. The circuit court entered a parties' agreement. Rongstad ap- accordance with the pealed, accepted appeals' and we the court certifica- (Rule) § pursuant tion of the case to Wis. Stat. 809.61. hHI—I *15 parties agreed ¶ 28. Because the to dismiss the underlying begin case, defamation claim this we with a why jurisdiction brief discussion of this court has over Rongstad's appeal.9 succinctly, Stated the reason is straightforward: Rongstad aggrieved by is the final judgment upon parties' agree- entered the settlement required pay $65,000 ment it him because in sanc- tions. By parties agreed
¶ 29. the time the to settle their underlying case and claim, dismiss defamation already imposed discovery circuit court had and con- discussion, 28-36, In this Chief Justice Abrahamson ¶¶ Bradley opinion. and Justice constitute a lead Rongstad. specifically, tempt More at the on sanctions agreement, Rongstad entered into the settlement time attorney's imposed in $30,000 over circuit court had per discovery imposed sanction, $1,000 had a a fees as granted continuing contempt, day and had fine for judgment. Rongstad was, and motion for default Lassa's aggrieved the circuit court's orders remains, contempt orders, and sanctions. Those part properly court as turn, are before this judgment Rongstad's appeal from the final entered (Rule) agreement. parties' See Wis. Stat. settlement 809.10(4).10 § Rongstad Although advances several
grounds error, central contention is for circuit court his they orders were unlawful because that the sanctions imposed his assertion of constitutional were over privilege. this contention and We must address both arguments in order to advances other propriety of the sanctions. decide 809.10(4) (Rule) provides § as follows: Wisconsin Stat. judgment appeal An from a final or final Matters reviewable. prior judgments, brings nonfinal orders before the court all order respon- appellant rulings and favorable to the adverse to the previously appealed proceeding in the action or dent made upon. ruled general propositions from the leaps The concurrence judgment appealable appellate must be for an an order or cannot be conferred jurisdiction jurisdiction and that to exercise such, [Rongstadl's "[a]s to the conclusion that by consent rights was invalid." preserving appellate certain stipulation Concurrence, linchpins of the concurrence's 101. One of aggrieved Rongstad is not is its determination that conclusion "sought he and secured judgment from "that" which Id., 104. This determination prejudice." with dismissal and the light the sanctions orders to fathom difficult *16 judgment. only one final fact that this case involves simple Rong- Alt, 31. NAACP and two cases on which examples relies, stad are of other instances which required courts were address merits of an asser- privilege propriety tion of in order to determine the discovery NAACP, Alt, sanctions. 460-66; U.S. at cases, Wis. 2d at 84-95. In both the court could not decide whether the sanctions orders were lawful with- addressing privilege out the assertion of over which the imposed. validity Likewise, here, sanctions were depends they properly the sanctions on whether were imposed light privilege. of an asserted analogous
¶ 32. Also somewhat
is Jandrt v. Jer
Foods, Inc.,
ome
227 Wis. 2d
¶ 33. here we need not address the plaintiffs merits of the defamation claim in order to propriety decide the sanctions, we must address the privilege, just assertion of as in NAACP and Alt. Rongstad's privilege assertion of is not a defense Lassa's discovery Rather, defamation claim. it is a defense to the contempt sanctions.11
11Again, the concurrence reaches a conclusion that difficult to understand. It concludes that this court lacks jurisdiction to consider any privilege assertion of because the assertion of a privilege such is a defense to Lassa's Concurrence, defamation claim. 96. The concurrence ¶¶ conflates a defense to the defamation claim with a defense contempt event, In any sanctions. both *17 judgment must be course, an order or ¶ 34. Of jurisdic appellate appealable exercise court to for an parties cannot confer involved "consent of the tion, and Heritage jurisdiction Mut. Ins. Co. none exists." where (1970). 717 Thoma, 580, 587, 2d 173 N.W.2d 45 Wis. v. parties in a con issues Nonetheless, troversy, sometimes settle ques only question or here, that the such Similarly, remaining ripe appeal. issues are for tions prod partly appeal presented are often at least stipulations See, in the circuit court. of one or more uct e.g., Co., 32, 278 2d 18, Wis. v.ABC Ins. 2005 WI Petta (in decision was which this court's 251, 639 692 N.W.2d plaintiffs stipulation part, had on a that based, settlement); by lump-sum see made whole not been Hogner, e.g., ¶¶ 7-8, 279 25, 2005 WI also, v. Strenke (parties stipulated to 52, N.W.2d 296 2d 694 Wis. disputed damages); White, liability v. 2005 Weber but (parties 137 2d 681 N.W.2d 5, 272 Wis. WI causing negligent party stipulated that one was 100% accident). an may is- manufacture artificial Parties not judgment appeal. or order must be Moreover, a
sues appealable as a rule order be "final" as defined (Rule) 808.03(1); § right. also see Stat. matter of Wis. Alt, 224 Alabama, (1958), v. and Burnett 357 U.S. v. NAACP (1999), this demonstrate 72, 589 N.W.2d Wis. 2d is incorrect. conclusion belief the concurrence's to understand is
Similarly difficult not all of the some but jurisdiction has over this court concurrence, The concurrence 94-96. See presented. ¶¶ issues jurisdiction this court has satisfactorily explain how does others, though all of the issues even but not over some issues claim. defamation Lassa's now-dismissed initially from stem Capitol Corp., Mountain, Cascade Inc. v. Indent. (Ct. 1997) App. (party 265, 269, 2d Wis. 569 N.W.2d45 by stipulating entry "cannot, to the of a conditional judgment, mandatory appeal obtain a of an interlocu- order"). tory parties' Here, however, the settlement and judgment upon implicate entered it do not manu- They factured issues. also do not run afoul of the finality requirement.12 *18 Having briefly
¶ why 36. addressed this court has jurisdiction Rongstad's appeal, over we turn to the Rongstad's arguments. arguments merits of His raise involving party's comply issues sanctions for a failure to discovery contempt with orders and a related of court. Appellate ordinarily courts review circuit court deci pertaining sions to such matters for an erroneous Sykes, App exercise of discretion. Schultz v. 2001 WI ¶ 255, 8, 248 Wis. 2d 638 N.W.2d604. However,we independently any underlying questions determine Court, law. See Oliveto v. Circuit 418, 429, Wis. 2d (1995); App Leubke, 533 N.W.2d819 Evans v. 2003 WI 16, 267 Wis. 2d 596, 671 N.W.2d 304. The discovery contempt lawfulness of the and sanctions in ultimately question subject this case turns on a of law independent appellate Rongstad review: whether required preliminary showing made the factual asserting meets the privi standard a constitutional lege Vultaggio under NAACP.See Yasko, v. 215 Wis. 2d (1998); Bentley, 326, 330, 572 N.W.2d450 State v. (1996). 303, 310, Wis. 2d 548 N.W.2d50 agreement judgment settlement are structured ,on regardless such that Rongstad of whether or prevails Lassa appeal, litigation no further between them will ensue this case.
hHHH r—I A addressing Rongstad's by begin assertion We erroneously exercised its discre- the circuit discovery imposing by compelling sanctions tion privilege consid- before of constitutional his claim over ering upon complaint a claim stated Lassa's whether Rongstad argues granted. that, in could be relief which light by questions his asser- raised the constitutional privilege, have first decided court should tion of to dismiss. motion argument joined amici in this Founda- of Wisconsin Union Civil Liberties
American Newspaper Association, Wisconsin tion, Wisconsin & Manufacturers Association, Wisconsin Broadcasters Association, Wisconsin Commerce, Realtors Wisconsin Associa- Builders Association, and Wisconsin Bankers rights given They constitutional that, assert tion.13 figure public not be as Lassa should such stake, a at any until action in a defamation allowed pending resolved. has been motion to dismiss *19 proce- oppose such not seem to Lassa does general. that based maintains Rather, she in dure did not particular court here, the circuit facts 13 of Wisconsin Foundation American Civil Liberties of in the court originally filed brief it the amicus submitted filed after this brief in another amicus joined it also appeals, to strike case. Lassa moves of the certification accepted has, in the ACLU brief, asserting original the ACLU's Lassa and discour agree with effect, amicus briefs. We filed two However, in future cases. by curiae amici age practice such any regardless of be the same would our decision because brief, choose original we ACLU's given to the consideration motion. deny Lassa's
209 erroneously by failing exercise its discretion to decide imposing discovery motion to dismiss before sanctions.
¶ 40. Cases like the one before us test the bounds
rights
speech
to free
and freedom of association
important
rights
in the face of other
and interests.
"Inviolability
privacy
group
may
in
association
many
indispensable
preservation
circumstances be
particularly
freedom of
group
association,
where a
espouses
NAACP,
dissident beliefs."
tion public against candidates for office those who have See, e.g., Solsrud, criticized them. Tatur v. 2dWis. (1993); N.W.2d 232 Co., D'Amato v. Printing Freeman
210 Certainly, plaintiff should not 42. a defamation discovery employ the rules of obtain able to be political speaker simply identity anonymous of an complaint facially filing that unsustainable. likely anonymity speaker chosen a reason. has most First Amendment If reason is consistent with that discovery speaker's principles, to uncover the use right may identity free of the chill the exercise discovery process speech. also violates Such a use principle litigants that are entitled the basic annoyance, embar- causes unreasonable 804.04(3); § oppression. rassment, or Stat. See Wis. Paige G.B., v. 2d K.B. Peterson Steven 226 Wis. ex rel. (1999).15 232, 370 210, 594 N.W.2d work an cannot Yet, the constitution discovering plaintiffs bar to a interest absolute actually identity speaker If defamed her. it of a who has anonymous speakers free to false would be make did, causing harm no matter how to others statements speech damaging. has its malicious or Freedom of Free defamation. v. limits. It does not embrace Ashcroft (2002). Speech Coal., 234, U.S. 245-46 535 competing way these to reconcile all of One according rights interests, and the require decide whether amici, is to that circuit courts complaint relief a claim which defamation may states granted imposing for the sanctions be before type on the information based refusal to disclose Hanson, 2d (1968); Frinzi v. 30 Wis. 2d 157 N.W.2d Wis. (1966). 140 N.W.2d no in this case that dispute note there is real We informa only were source Rongstad and the Alliance seeking to Lassa discover. tion that was *21 privilege Rongstad constitutional has a asserted. Such procedure, argue, they helps protection ensure rights constitutional at stake. dismiss, 45. On a motion to the court must "capable
determine defamatory meaning." a whether communication is of a Northridge Starobin v. Lakes (1980). Co., Dev. 2d 1, 10, 94 Wis. 747 N.W.2d This reasonably means that if the communication cannot be defamatory, plaintiff then the has failed understood to claim, state a and the to motion dismiss must be granted. Id.; Solsrud, see also Tatur v. 174 Wis. 2d (1993); Hanson, 498 N.W.2d v. Frinzi 30 Wis. (1966). 271, 276, 2d 140 N.W.2d259 appellate ¶ 46. Few have been courts asked to procedure determine such a whether should fol- be although question lowed, reached has at least one supreme Cahill, other state court. In v.Doe 884 A.2d (Del. 2005), Supreme the Delaware Court was question procedure confronted with of what to public figure plaintiff follow when a defamation seeks identity anonymous speaker to discover the of an criti- cizing plaintiff postings. via internet presented
¶ 47. The Delaware court was a with range possible procedures use order to strike the proper competing rights balance between the and inter- explained: ests. The court
Before this is an spectrum Court entire of "standards" (in order) required, ranging ascending could be from good claim, a faith basis to assert a to pleading dismiss, sufficient facts survive a motion to a showing prima facie evidence sufficient to withstand summary a judgment, beyond that, motion for stringent. hurdles even more Cahill, 884 A.2d at The described the particu- court thoroughly it was faced:
lar concerns with which setting the standard too low are concerned We exercising their First potential posters chill from will speak anonymously. possibil- right Amendment in a intimi- losing anonymity future lawsuit could ity of self-censoring anonymous into their com- posters date A commenting or at all. defamation simply ments very figure, particularly public obtains plaintiff, by unmasking identity form of relief important *22 an anonymous identity The of of critics. revelation his "may speaker] to anonymous subject [that speaker ideas, retali- expressing unpopular invite ostracism or oppose ideas from those from those who her ation criticizes, simply give exposure or unwanted she whom initially can often processes." her mental Plaintiffs to good to faith test... sufficient facts meet plead very strong, or if the claim is even defamation worse, they intend the defamation pursue if do not to to a final decision.... action
Indeed, many defa- reason believe there is to iden- bring merely to unmask the plaintiffs suit mation has anonymous critics. As one commentator tities of from noted, surge in Doe suits stems "[t]he sudden John really are not many actions the fact that defamation of action money." goals of new breed libel "The this about being goal silence largely symbolic, primary are first, like This "sue ask Doe and others him." John only awith standard approach, coupled later” questions defendants, of minimally anonymity protective public issues discourage important debate will posters censor anonymous more as more and concern to the likelihood response online their statements being unmasked. omitted). (footnotes
Id. at omitted; citations concerns, 49. Given these the Cahill court con- stringent cluded that "even the more motion dismiss option spectrum standard, the middle in the of stan- may provid- choose, dards from which we falls short ing protection sufficient to a defendant's First Amend- right speak anonymously." ment Id. Thus, at 458. plaintiff court held that can "before defamation obtain identity anonymous through of an defendant compulsory process support he must his defa- summary mation claim with facts sufficient to defeat a judgment motion." Id. at 460. Although
¶ 50.
we share the Cahill court's con-
fully applicable
cerns and think them
bar,
the case at
appears
we reach a somewhat different
It
conclusion.
require par-
that Delaware, unlike Wisconsin, does not
ticularity
pleading
in the
of defamation claims. See id.
802.03(6).16
§
at 458; Wis. Stat.
court Cahill
cf.
silly
easily
noted
"even
or trivial libel
can
claims
plaintiff pleads
survive a motion to dismiss where the
put
facts that
claim,
defendant on notice of his
vague
lacking
allegations
however
may
or
in detail these
Cahill,
be."
that one the most a by summary judgment defamation claim "capable defamatory meaning" claim must be of a § provides part: Wisconsin Stat. 802.03 in relevant Pleading special matters.... (6) slander, Libel or In an for slander. action libel or
particular complained complaint, words of shall forth in be set publication application may plaintiff but their their and to the be generally. stated summary judgment. This, at 463. Id. to survive order inquiry is the focus of a motion course, is the same e.g., See, a for defamation Wisconsin. claim to dismiss Starobin, at 2d 10. Wis. Accordingly,
¶ determine that Wis- 52. we under requiring law, the circuit court to decide a motion consin compelling imposing disclosure and dismiss before to expressed in Ca- addresses the concerns sanctions best with an assertion of constitutional hill. When faced privilege identifying against information disclosure of otherwise-anonymous organization members, the circuit pending motion dismiss should decide sanctioning party for to state a claim before failure refusing that information. to disclose prospectively, Having that, determined this 53. ordinarily procedure that circuit courts should is the agree that the circuit follow,we nonetheless with Lassa erroneously here exercise its discretion court did not though imposed discovery sanctions before even it some addressing Rongstad's motion to dismiss. Rongstad Early litigation, informed in the bring a motion that he intended to
the circuit court argue not, however, that the court was He dismiss. did discovery pro- required the motion before decide 17-page Rongstad his motion filed When ceeded. argument. supporting no such brief, he also advanced its court made Likewise, when the circuit initially imposed rulings on March it sanctions when present Rongstad argument. did not briefing schedule The court issued days within two motion dismiss February 11, 2003. motion, filed the date that *24 schedule, the briefing reply Under briefs were due ap- later, six weeks did file proximately yet Rongstad not any the objection to schedule or an request accelerated In he addition, schedule. did not file objection when any his insurer moved on 19 to intervene and February stay the the pending merits of case of resolution coverage issues. 56. the it very earliest, At was not until April 30, that first Rongstad of apprised court advances, now
argument he that the required court was to decide his motion to dismiss before discov- compelling date, On that ery. Rongstad filed letter with the court requested which he that it his address motion to dismiss resolving before other any pending motions because this would "eliminate the for any need further In view, however, action." our even this April letter did apprise court circuit of argument Rongstad now makes. In any event, the time of Rongstad's April letter, the court had already compelled discovery and
ordered It sanctions. then decided his motion to dismiss before proceeding impose further sanctions. The no additional imposed sanction until after it denied the motion. In short, did not raise argu- his
ment the circuit court required was address his motion to compelled dismiss before it until after the court imposed discovery Moreover, sanctions. the argument the constitutional dimension parties' discovery mandated dispute this course ac- tion was a relatively novel one considering existing law at the time.17 Given all of circumstances, the court
17The dissent imparts spin to both the facts and the law. Contrary to what it first insinuates over the course nine *25 in its discretion compelling exercise erroneously did not and some sanctions without first imposing discovery Rongstad's motion.18 deciding 124-129, 169-170, dissent, see then paragraphs, ¶¶ paragraphs more of nu- concludes based on several expressly id., 172-178, is there no real indica- explanation, anced see ¶¶ 30, 2003, Rongstad's argument until April in record of tion the otherwise, By suggesting the dissent elevates the at the earliest. The dissent purse aphorism from a ear" to new levels. "silk sow's if "motion it underlines the words to thinks that apparently times, it from the record enough can summon facts dismiss" id., 124-126, 128-129, 169. not exist. See ¶¶ that do Likewise, legal authorities that the dissent cites none court) (or apprised in Rongstad cited the circuit would have that arguing was the court must circuit court that discovery imposing to before address his motion dismiss Those not address whether sanctions. authorities do contempt motion in pending dispositive decide a a circuit courts should resolving disputes. As we discovery case have defamation before Cahill, A.2d body in this Doe v. 451 opinion, indicated (Del. 2005), years more after the decided than two which was dismiss, appears motion to be court denied circuit few such an issue. one of the cases address relies, Judges for example, the Law Note The dissent pattern jury found in the instructions. See on defamation that is 2500). Rongstad cited the dissent, (citing Wis. JI —Civil support in his of his motion to dismiss and Law Note brief along April circuit with his provided the Law Note Note, however, acknowledges that the simply 30 letter. Law usually is inquiry in a defamation case initial substantive defamatory meaning, capable of the words at issue are whether normally presented a judge trial question for the 2500, at 3. The Law Note Wis. JI —Civil motion to dismiss. in the how this usual guidance procedure no as to provides let disputes, case interact with defamation should discovery dispute here. type alone Here, recognized, the resolution as the circuit court given special the imminent discovery dispute was time-sensitive B Rongstad's argument ¶ 59. We turn to incorrectly applied circuit court the constitutional bal- ancing test under cases such as NAACP The United Supreme States Court's decision in NAACP has come to balancing applies stand for a test that cases which organization an or its members or contributors assert privilege compelled First Amendment the face of disclosure of member identities or related information. e.g., Party See, Smith, Black Panther v. 661 F.2d *26 (D.C. 1981); Revolutionary 1267-68 Cir. Crocker v. Com- Progressive Party, munist Labor 533 N.E.2d 447-48 1988).19 (Ill. App. following Ct. theAs discussion of party seeking shows, NAACP and other cases the privilege preliminary the assert showing must make a factual prob- that at least a demonstrates reasonable ability chilling of an actual effect on First Amendment rights. attorney general NAACP, In 60. of Alabama
brought
against
alleging
suit
the NAACP
that it was
unlawfully conducting
NAACP,
business in that state.
appeal
"must be by petitioner's upon the exercise restraint substantial right of Id. at their to freedom association." members of likely determining chill that the order was In rights, the re- associational Court members' NAACP showing that on to the NAACP's "uncontroverted ferred identity past rank-and-file of the of occasions revelation exposed economic re- members to has these members prisal, physical employment, coercion, threat of loss of hostility." public Id. The and other manifestations weighed on likelihood of such a restraint then Court rights against the state's exercise of members' obtaining disclosure member asserted interests at 463-65.20 identities. See id. Buckley Relying NAACP, v. the Court (1976), required
Valeo, on what is elaborated U.S. balancing part test, time in of the this under the first parties. political In of contributions the context Buckley explained be a there must the Court showing to demonstrate "reasonable factual sufficient reprisals, probability" harassment, or threats, examples proof necessary: gave the Court *27 only need show a reasonable The evidence offered .. will sub- compelled . probability that disclosure threats, harassment, reprisals to or ject [contributors] parties. private officials or from either Government 20 NAACP, Little City v. Bates in the Court Much as of Rock, (1960), uncontroverted of "substantial spoke U.S. 516 361 community persons identification public evidence by harassment had been followed [NAACP] members of the Id. 524. bodily harm." at and threats of
219 proof may include, example, specific evidence of past or present harassment of due their members to ties, against or of associational harassment directed organization A pattern itself. of threats or specific public hostility may manifestations of be sufficient. Party, 74; Id. at see also Black Panther 661 F.2d at litigant C'[T]he seeking protection 1267-68 need not prove certainty rights to a that its First Amendment only will be chilled disclosure. It need show that probability there is some that disclosure will lead harassment."). reprisal or Buckley 63. The Court was thus careful party seeking
ensure that the burden on the
assert
privilege
insurmountably high.
was
At the same
recognized, "[w]here
type
time, the Court
it exists[,] the
of chill and harassment
identified in NAACP v. Ala-
Buckley,
bama can be shown."
424
atU.S.
subjective
"[a]
reprisal
Thus,
fear of
is insuf-
protection against
ficient
invoke first amendment
requirement."
375,
disclosure
Dole v. Local Union
921
(9th
1990).
proof
969,
F.2d
Cir.
"The
offered must be
'objective'
allegation
subjective
'apprehension'
or
—an
membership
deterrence of
or contribution is not suffi-
Supp.
States,
cient."
v.
O'Neal United
F.
(N.D.
1985) (citations omitted);
Ind.
see also Laird v.
(1972) ("Allegations
Tatum,
3. That as a board association, guaran- have previously I and the Alliance identity confidentiality respect to the of with teed throughout the course honored that members and have with the Alliance. my work if I am com- have told me that 4. That members orga- identity of to disclose the members pelled nization, they longer no interested in be will any organization organiza- or such participating legal reprisal potential tion, public for fear of action. the names and the attendant
5. That disclosure of
my
confidentiality
likely ruin
business and
will
loss of
career.
me
find a new
force
to estab-
is insufficient
Rongstad's affidavit
NAACP
showing under
the required preliminary
lish
no evidence
provides
The affidavit
and its progeny.
harass-
threats,
or
past
present
instances
particular
NAACP,
74;
at
ment,
424 U.S.
Buckley,
or
See
reprisals.
*29
pattern
has relied this Tellingly, necessary tion. the dissent it finds evade requirement preliminary these cases and their of a showing factual in order to reach its result. dressing
¶ 73. As window
for its result, the dis-
specter
deeming
sent then raises the
of "SLAPP" suits,
masquerading
this
a "SLAPP
case
suit
as defamation
recognize
subject
disclosure
identities would
at
least
curiam,
per
Pollard,
Roberts v.
some of them to reprisals),
affd
(1968).
224 ¶¶ 159-160. In 108; dissent, also Dissent, see case."23 characterizing suit, a the dissent case as "SIAPP" this Rongstad seemingly has on the role of advocate. takes suit, a has not this case as SLAPP not characterized such, and has not should address it as that we advanced addressing difference it such makes a that asserted dissent, we calculus.24Unlike in the constitutional arguments makes, and we that address applicable law. adhere to the
C Rongstad's argument briefly next turn 74. We privilege" assertion he made a "substantiated 21 Alt, 2d 589 N.W.2d Burnett v. Wis. under (1999). apply argues where a defen- that Alt should He against privilege a asserts action dant in defamation Amendment. on the First disclosure based Alt, concluded that witness In this court expert provide privilege qualified to refuse to has a compelling testimony, Id. at circumstances. absent "[a]lthough the circuit court should stated that 92. We attorneys judgment rely involved for on the privilege that a ex- determination their self-interested privilege is substantial assertion of ists, a substantiated failing comply justification order to with an (citation discovery." permit omit- provide Id. at 94 or Against "Strategic acronym for Lawsuit an "SLAPP" is J., (Bradley, 2d at 359 Vultaggio, 215 Wis. Participation." Public dissenting). legislative wanders into the the dissent also We note that anti-SLAPP statutes legislature adopt upon
role. It calls case, SLAPP the term though "[u]ntil this it concedes even jurisprudence." in Wisconsin relatively unheard of had been suit Dissent, 161-162. ¶¶
ted). evidentiary Alt, Thus, under a bald assertion an privilege provide expert testimony to refuse to will not Rather, suffice. the assertion must be "substantiated." ¶ 76. The Alt did not define what is by privilege meant "substantiated" assertion of against providing expert testimony. apparent, It by requiring however, that that the assertion be sub- seeking stantiated, the court was to effectuate the necessary right expert balance between the witnesses testifying against to be free from their will and the litigants testimony. needs court and See id. at requirement 88. The of a "substantiated" assertion of evidentiary privilege discourages illegitimate invo- privilege. cation of the involving discovery
¶ 77. In cases orders in the privilege face of an assertion here, constitutional balancing governs. test under NAACP That bal- ance, which involves considerations different from by Alt, those in is effectuated the standards forth set interpreting NAACP and the cases Thus, it. we deter- applicability showing mine that Alt has no here. The required had to make was one under progeny, NAACP and its anot "substantiated assertion" evidentiary privilege of an under Alt.
D Rongstad's ¶ 78. Wenow turn to assertion that the severity of the sanctions in this case no bore rational relationship any to his conduct or to harm suffered specifically, Rongstad argues Lassa. More monetary ($43,000 attorney's $65,000 in sanctions fund) payable $22,000 fees and a forfeiture to the school relationship no rational "bears refusal to *33 political a mere two months" in associations disclose attempt privilege light and his to seek claim of of his argument. reject interlocutory appeal. this We incorrectly Rongstad's argument ¶ assumes monetary is an amount of $65,000 in sanctions the that by court, the fact it is the circuit when sanctions set stipulated parties in their settle- the amount to which agreement. final court never made a The circuit ment monetary ruling Rather, sanctions. on the amount of stipulated parties while to amount sanctions this the monetary still sanctions was the amount of the issue of pending the will review the court. We before parties monetary agreed to the "sanctions" amount of of circuit court discretion. erroneous exercise for an opportunity to exercise never had the The circuit court monetary it to amount of sanctions the its discretion ultimately proper. deemed Rongstad a sanction of a also asserts judgment liability and too severe issues is
default on relationship We to the harm suffered. no rational bears agreement parties' question settlement the whether agreement judgment pursuant to and entered the Rongstad appeal permit reflect an intent propriety liability.25Regardless, judgment we on Rongstad states that agreement settlement parties' The to the respect with right pursue appeal an have the "shall First Amendment on attorney's fees forfeitures added.) on judgment entered grounds (Emphasis ...." rights," "any appellate not to waive agreement, purporting while also as follows: provides appeal appropriateness intend to
The defendants fees Alt, Amendment, and whether First under the and forfeitures legal award, any applicable justified other in the Courts were agreement judgment determine that the and the en- pursuant agreement, tered to the which dismissed prejudice, Lassa's claim with lenging bar from chal- propriety judgment of the default on liabil- ity. judgment liability The effect of the default parties' agreement judgment moot under the and the dismissing prejudice. Lassa's claim with again pause
¶ 81. We once dissent, address the protests subject Rongstad which that "it is draconian to heavy, heavy to the financial at sanctions issue in this Dissent, case." 183. Lost on the dissent is that the parties stipulated monetary to the amount of sanctions. importantly, labeling *34 82. More in the sanctions eye "draconian," the dissent turns a blind to facts of may justified record that have a circuit court award of monetary equal greater sanctions to or than the parties agreed. example, amount to which the For judge initially presided circuit court who in this case observed: "Seldom I have seen an such abuse." The Rongstad court also found that oath, had lied under was "highly "engaged well-planned evasive," and had ain up" Similarly, effort to cover his activities. the circuit judge presided who later concluded that egregious conduct was and in bad faith. carefully giving any 83. The dissent avoids portraying Rongstad truck to these facts, instead as the savvy" victim of a court, biased circuit of a "shrewd and legislator (Lassa), and now of this court. Dissent, ¶¶ 129, 153, 162, n.ll, 170, 164 & 172, 179, 181-185. nothing question impar- Yet, in the record calls into Rongstad Valkyrie Group theories. right and The retain the appeal contempt ruling stipulated on all issues amount $65,000 $43,000 contempt attorney’s with in related fees and
of $22,000 payable in forfeitures to the School Fund. added.) (Emphasis
tiality Likewise, have taken court. we of the circuit portraying opinion pains either Lassa or to avoid this light suggest- avoid and to in an unfavorable party part ing improper of one or the motive on the an Perhaps or more if had more facts law the dissent other. Instead, the have done the same. side, its it could on following quotation brings to mind: "When dissent your argue you facts. When side, have the facts you your argue you side, the law. When the law on have neither, have holler."
E question Finally, of turn to address the we superintending author- exercise our we should whether interlocutory appeal ity as a of matter establish an involving discovery right sanctions cases defamation privilege. questions Our of a constitutional raise power superintending is limited to exercise justice" require it. the "necessities situations which Jezwinski, 217, 231, 2d N.W.2d v. Wis. Arneson (1996). grants requiring automatic Moreover, generally power interlocutory appeal pursuant to this v. Court ex rel. Hass Wisconsin disfavored. State *35 Appeals, 634, 2d 636 128, 24, 248 Wis. 2001 WI N.W.2d 707. Rongstad argues be this case should by concluded Arneson, in which this court
controlled appeals of a matter course of should as that the court interlocutory appeal grant petition from a for an denying claim of a state official's order circuit court qualified § immunity Arne action. in a 42 1983 U.S.C. that such We determined son, 2d at 219-20. 206 Wis. 229 petition always within would fall the criteria for leave (Rule) 808.03(2)(a) § appeal under Wis. Stat. (b).26Id. at 229.
¶ 86. In contexts, other however, the court has superintending authority declined to exercise its require interlocutory appeals under circumstances that may equally compelling be viewed as to circumstances Hass, ¶¶ such as those here. See 634, 248 Wis. 2d 2, 20; Jenich, State v. 94 2dWis. 288 N.W.2d modified reconsideration, 94 2d 74, 97A-97B, Wis. 292 N.W.2d (1980). example, Jenich, In we declined to direct appeals permissive appeals denying the court of to hear jeopardy motions to dismiss based on double claims despite questions" the "serious constitutional raised Jenich, such claims. 2d n.l, Wis. at 97A Rather, 97B. urge appeals carefully we were content to court considering exercise its discretion in whether to hear appeals. such Id. 97B. at approach Here, we follow our Jenich, grants
mindful of the rule that automatic of interlocu- tory appeal generally Mandatory are disfavored. inter- locutory compel deny discovery review orders that or privilege when an assertion of constitutional is raised in (Rule) 808.03(2) § Wisconsin Stat. provides: Appeals by permission. judgment appealable A or order (1) right may a matter appealed under sub. be to the court of appeals judgment upon in advance of granted a final or order leave by the if appeal it determines that an will: (a) Materially litigation advance the termination or clarify proceedings litigation; further in the (b) petitioner irreparable Protect from substantial or injury; or (c) Clarify general importance an issue of in the administra- justice. tion of *36 by or foreordained Arneson case is not a defamation justice. by of Reise the necessities dictated otherwise Cf. 1992) (7th Regents, 293, Cir. 957 F.2d v. Board of ("[E]ven strong produce ob information over orders despite appealable, jections privilege are not based bag privilege once the cat is out claim that gone."). Although the one cases like defamation questions, may raise constitutional us serious
before jeopardy questions raised in double the constitutional rights equally The constitutional at are serious. cases appeals' adequately protected by of the court are stake appeal petitions for leave to of careful consideration any procedure available, as a such other review "[0]rdinary judicial supervisory petition for a writ. long procedures as remain the courts review suffice prevent Amendment accordingly." First to the need to sensitive procedures administer those harms and D-4, LLC, City U.S. v. Z.J. Littleton Gifts of (2004).27 781-82 Rongstad all available did exhaust We note mentioned, for previously As appellate review. procedures initially interlocutory relief in Rongstad sought example, 2003, order, February the circuit court's appeals of from court by rejecting his assertion the circuit court erred asserting that however, of NAACP. Ultimately, the court under privilege from appeal for leave Rongstad's petition appeals dismissed any argument. The February 4 after he failed to file order longer Rongstad no "it appeals appears concluded review.. .." interlocutory wishes to seek hearing, Likewise, 11, 2003 sanctions at the March follows: circuit court observed as opportunity, pursue which was his further Mr. failed to my Appeals on an address the merits order the Court of to ask was, effect, interlocutory appeal abandoned. It basis.... *37 Accordingly, ¶ 89. we decline to exercise our su- perintending authority right to a establish to interlocu- tory appeal Rongstad requests. given Nevertheless, important the constitutional issues raised and the con- sequent timely urge for resolution, need a we the court appeals carefully weigh of to whether there is a need for interlocutory appeal given appeal in a case. Such an may necessary protect party be to a from or "substantial irreparable injury," testing one of the criteria for appropriateness interlocutory appeal of an under (Rule) 808.03(2). § appeals We trust that the court of carefully grant deny will exercise its discretion to or appeal appropriate. leave or other relief as
IV sum, In we hold as follows: (A) cases, In defamation circuit courts should ordi- narily pending decide a motion to dismiss for failure sanctioning party a refusing state claim before for said, having And that been Mr. most recent claims going that he Appeals is to seek vindication in the Court of explains that that what his conduct and his defiance of this footing. Instead, Court's order likewise falls rather hollow what appears virtually simply variety it certain to isbe another of steps Rongstad litigation Mr. delay has taken in this to seek responsibilities and to avoid his under the law. addition, In it appears Rongstad chose not to utilize other mechanisms interlocutory for relief. Lassa sets forth the following background facts in her brief: 1, 2003, April On Appeals the Court of denied second petition appeal temporary for leave to and motion for relief filed Rongstad seeking February Mr. of review the court's 28 and March 11, 2003 permissive orders because the Court does not take appeal[s] on oral orders. Those sanctions orders were reduced to April Rongstad [a] written order on 2003.. . . Mr. did not seek appeal April
leave 2003 order. identify otherwise- that would information disclose organization. anonymous Under the of an members did not however, circuit court here, circumstances erroneously compelling discov- exercise its discretion deciding Rongstad's imposing ery sanctions before motion to dismiss.
(B) rejected Rongstad's properly The circuit balancing privilege test of the under assertion make failed to because line cases NAACP showing support preliminary required his factual assertion.
(C) showing applicability this case. Alt has no *38 required Rongstad under the one had to make was evidentiary of NAACP, assertion" "substantiated privilege Alt. under
(D) severity challenge reject Rongstad's of to the We attorney's forfeitures because $65,000 fees parties amount —the court did not set that the circuit by stipulation. cannot claim did relationship no rational $65,000 of has amount erroneously exercised or that the court harm suffered setting We also determine the amount. it its discretion judgment Rongstad's challenge to the default that liability agree- parties' settlement under the is moot ment. to exercise our su- addition, In we decline interlocutory authority
perintending an establish right involv- appeal in defamation cases as a matter questions discovery of a consti- ing that raise sanctions Accordingly, privilege. the circuit affirm we tutional judgment. judgment the circuit court By the Court.—The affirmed. WILCOX, E N. CROOKS, JON PATRICK ROGGENSACK, JJ.,
and PATIENCE DRAKE took no part. {concur- BUTLER, JR., 93. LOUIS B. J.
ring). Rongstad (Rongstad) Todd seeks assert First protections response Amendment before this court in (Lassa) Julie Lassa's defamation claim. The action before Rongstad's isus not about Lassa's defamation claim or defense, First Amendment This however. case is about power of the circuit court to enforce the orders that lawfully during litigation pending it enters that is before proper perspective, it. When viewed in the the resolution relatively simple straightforward. of this matter is majority ¶ 94. The and the are dissent determined part to reach and decide matters that were as dismissed agreement accepted by of a settlement that was majority Rongstad's circuit court. chooses to reach privilege determining assertions of whether appropriate comply sanctions are for his refusal to with discovery orders. The dissent chooses to reach privilege part deciding assertions of defamation claim. I am not so inclined. The defamation sought by Rongstad. claim dismissed, has been a result That dismissal includes the claim, defenses to the includ- ing any privilege by Rongstad. assertions of The dis- *39 part missal of the defamation claim was of the settle- agreement parties, approved by ment between the underlying court. It's over. The merits of the defamation simply privi- action are not before us. The assertions of lege are not before us. To reach and out decide the merits any Rongstad of that dismissed claim and defense to had it would allow cake, have his and eat it too. engaged. We should not become so majority that in defamation concludes 95. pending ordinarily decide a cases, circuit courts should a claim before for failure state motion to dismiss refusing sanctioning party for to disclose information a identify otherwise-anonymous of members that would agree organization. Majority op., ¶¶ I 5, 90. Because an approach followed the circuit should be that this join portion I and that future, concur with courts in the join opinion. I concur with and that Likewise, of the portion to exercise in which we'decline of decision right authority superintending to establish our Rongstad suggests. interlocutory Id., ¶¶ appeal join portion that of the I also concur with and 89, 91. opinion here, the circumstances holds that under which erroneously its discre- did not exercise the circuit court discovery imposing compelling sanctions tion in deciding Rongstad's Id., ¶¶ 5, motion to dismiss. before join portion finally of the I with and that concur 90. challenge severity rejects Rongstad's opinion to the attorney's because $65,000 in fees and forfeitures parties stipulated to that amount.1 Id. the un- court dismissed Because circuit prejudice, derlying I however, claim with defamation jurisdiction to consider court lacks conclude that this claim, and of Lassa's defamation the merits respect any privilege claim, with assertion of imposed properly including court whether circuit pretrial orders. for a sanctions violation appeal or It that in "all cases of is axiomatic good proceeding, faith, have error, must been there adjudication This an inferior an inferior court. Abrahamson, court, Chief Justice Three members this amount Bradley I, agree all that sanctions Justice $65,000 proper in this matter. are therefore *40 passed upon
must have
the case ...Webster
v. Stad
(1859). "[P]arties
den,
83, *225,
8
*228,
Wis.
37 N.W.316
by
question
by
cannot, either
failure to
raise
or
jurisdiction upon
appellate
consent, confer
an
appealable."
review an order which is not
Szuszka v.
City Milwaukee, 15
2d 241, 243, 112
Wis.
699
N.W.2d
(1961);
Heritage
Thoma,
also
see
Mut. Ins. Co. v.
45 Wis.
(1970).
580,
2d
586-87,
¶ 98. Prior to the of the court § system provided any Wis. Stat. 817.10 judgment ag- "party or order was reviewable grieved." Koenigs, Mutual Serv. Ins. v. Cas. Co. 110Wis. (1983). provision 522, 526, 2d 329 N.W.2d157 That was omitted from the 1977 revision of the rules statutes merely because it was considered to state a fundamen- concept upon standing tal and well-understood which appeal predicated: was
"The phrase elimination in the revisions statutes and rules was change intended to concept that a person aggrieved by had be a judg- ment or order before he appeal." could Martineau and Malmgren, Practice, Appellate Wisconsin sec. 601 (1978). person aggrieved judgment directly AId. if the bears injuriously upon interests, his or her and the person adversely appreciable must be affected some manner. Co., Weina v. Atlantic Mut. Ins. 2dWis. *41 (Ct. 1993); App. 465 Ford Motor 501 N.W.2d Mills, 215, 217-18, 418 N.W.2d 142 Wis. 2d Co. v. Credit 1987). (Ct. App. 14 question no action, there is that 99. In this by imposed aggrieved
Rongstad the sanctions been has attorney's by contempt-related fees the circuit court for contempt-related sanctions, forfeitures.2 Those along question of the circuit court the whether with pending to a motion to dismiss for failure decide should party refusing sanctioning a for to a before state claim comply are orders, the circuit court's with properly this court. therefore before underlying of defama- The merits Lassa's privilege of with claim and assertion tion respect validity claim, as the of that as well to to both altogether discovery sanctions, are an different the approved parties settlement, entered into a matter. The by underlying the court, the circuit which dismissed Majority op., prejudice. claim with defamation aggrieved by Rongstad ¶¶ the has been 26-27. While refusing comply contempt to wdth lawful sanctions simply that he has been orders, he cannot assert court judgment prevailed.3 aggrieved a in which he from agreed to be Rongstad it must be noted that again, Once of defamation claim sanctioned, in to dismissal part secure by attempt him. his complicated This matter is against stipulation, appeal part certain issues preserve underlying defamation notwithstanding the dismissal of claim. Rongstad "ag curiously that majority asserts into a judgment he entered grieved" by the final because $65,000 him agreement" pay that required "settlement judgment, which agreed 28. He Majority op., ¶ sanctions. him, he against claim of defamation included dismissal in that amount. agreed to sanctioned be 809.10(4) § Wisconsin Stat. does not provide awith vehicle for appealing judgment dismissal entered in his favor.4 It matters not Rongstad sought way certain of his
preserve
appellate
rights by
See
v.
stipulation.
Percy,
578, 587,
Coleman
96 Wis. 2d
(1980) ("It
follows, therefore,
292 N.W.2d
authority
by
lacked
to create
contract
[parties]
judicial
than
greater right
review
what they enjoyed
statute.").
jurisdiction
cannot confer
simply
Parties
an
by consent,
and an
or
upon
appellate
order
judgment must be
for an
appealable
court to
appellate
jurisdiction.
appellate
such,
exercise its
As
his stipula-
*42
tion
certain
preserving
appellate rights was invalid.
102. This matter should be decided on
the same
footing as this court's decisions in Lawrence v. MacIn
48
2d
tyre,
550, 553,
Wis.
(1970),
That precisely what should have occurred here. litigated could underlying claim, have the any defamation claim, validity defenses to that and discovery the of the orders Instead, had he to do Rongstad abandoned, chosen so. uninten- tionally perhaps, any opportunity pursue that defamation it, any claim and First Amendment defenses to as well the as validity of claim, the orders related to the defamation agreed claim, he when the dismissal of the defamation and judgment of the was dismissal entered the circuit court.
238 Gallagher Schernecker, 143, 148-49, 60 Wis. 2d 208 v. (1973). Lawrence, In at the Wis. 2d N.W.2d dismissing appealed appellants an order the from complaint, plaintiffs an This court order their favor. appeal, ruling appropriately that the dismissed "aggrieved." parties Id. think it elemen- were not "We tary may appeal judgment party in his from that (citation omitted). favor." Id. Similarly, Gallagher, 2d at Wis. appellant held where an seeks
148-49, this court
vacating
secures
an order
an arbitration award and
moving party
prevailed,
"[a]s
order,
who
he
such an
right
appeal
aggrieved party
is not an
with
vacating
award."5 See also Edlin v. Soder
order
(1978) (where
strom,
58, 64,
N.W.2d275
83 Wis. 2d
granted by
sought
complainant
other
had
the relief
the
portions
judgment,
parts
and as to those
judgment
aggrieved party
could not
he was not an
(a
appeal); Thoma,
cannot
with
aggrieved party
judgment.
This court is
jurisdiction
deprived
to decide the merits
therefore
any
part of that
entered as
that action and
orders
any
Consequently,
including
I
it.
action,
defenses to
*43
questions of whether the circuit
would not reach the
balancing
incorrectly applied
constitutional
court
the
(1958),
Alabama,
U.S. 449
or
test
NAACP v.
357
under
5
cross-appealed from the order vacat
respondent
Because
award,
the
the
ing
respondent,
which was
as to
appealable
on the merits.
and resolved
issues were before
court
Schernecker,
143, 149,
2d
239 Rongstad made a whether "substantiated assertion of privilege" Alt, 72, 94, under Burnett v. 2d Wis. (1999).6 respectfully join N.W.2d 21 I to decline those majority portions opinion. Rongstad If wanted litigated this court reach he issues, to these should have them on the merits the circuit before court. Rongstad contempt by
¶ 105. was found intentionally failing comply circuit court to with discovery provide court's to orders "The Lassa. court appeared noted it had lied under oath given designed had and that he evasive answers to avoid providing Majority op., ¶ information ordered." "egre- circuit found conduct be gious Majority op., ¶ and in bad faith." 24. Sanctions, including attorney's ultimately imposed fees, were against Rongstad contempt for his of court.7 While the imposed properly amount of the sanctions before this Rongstad intentionally court, there is no doubt that comply failed to with the circuit court's or- Majority op., Rongstad simply right ders. has no willfully disobey just a lawful court order he because disagrees it. with majority opinion Both the and the dissent have chosen to some of
address
the First Amendment concerns raised
Rongstad in this appeal.
entirely
This would be
appropriate,
fully litigated
had this matter been
at the circuit court
level
conclusion. As the circuit court
underlying
has dismissed the
prejudice, any
claim with
regarding
relevance
First Amendment
concerns
he
question
would
now limited to the
of whether the
attorneys'
circuit court should assess
against Rongstad,
fees
opposed to whether
the circuit court should have ordered
804.12(2)(b).
instance. See
sanctions in the first
Wis.
§
Stat.
7 It
clear
is not
whether
imposed
those sanctions were
785.04(1)
pursuant
804.12(2)(a)4.,
§§
to Wis. Stat.
or
804.12(2)(b).
they
imposed pursuant
§
whether
were
to Wis. Stat.
*44
by
¶
had to
the terms of the
abide
106.
erroneously
entered, until he
order, even if
reversing
the order in the trial court
either succeeded
process.
through
applicable
See State v.
review
or
(1978)
Orethun,
487, 490,
2d
is SLAPP attempt represents Amend- an to chill First suit SLAPP by bringing rights suit, such as defamation. tort ment important implicates case, this suit Like defamation law. of constitutional issues 1 Against Strategic Lawsuit acronym is an SLAPP Yasko, 359, 2d Vultaggio v. Wis. Participation.
Public
(1998)
v.
(Bradley, J., dissenting); Briggs
Eden
¶ 110. The sees it It does not apply scrutiny exacting to the circuit decision court's compel discovery impose Instead, sanctions. it applies the deferential erroneous exercise of discretion though adequately standard, as this standard safe- guards agree. First Amendment I freedoms. cannot
I. BACKGROUND ¶ 111. The facts and context are critical to the proper resolution the of constitutional in issues this they reported length. case, and thus are at some plaintiff, ¶ 112. The Lassa, Julie a is Democratic state senator from Stevens Point. She was elected to the Assembly in 1998, 2000, 2002, and elected to the special April Senate a in election 2003.2 shortly general In before the elec- Rongstad, mailing tion, defendant, the Todd caused a Representative be sent to voters Lassa's 71st Assem- bly District, as well some voters in other areas up mailing make the 24th Senate District. The con- (2005-06 ed.). of State Blue Wisconsin Book at 66 postcard. of One side oversized two-sided sisted of an jump- photograph mailing of Lassa shows colored this ing, of the State off, in the rotunda her shoes with smiling group face Capitol, The in front of students. superimposed, like is Charles Chvala of then-Senator multiple heads. masks, on students' colored reproduces a of this first side bottom reporting, "Ch- headline Journal Milwaukee Sentinel charged extortion, faces with State Senator vala prison." top up years felony of the At the counts, type jumping picture Lassa." is the name "Julie bold phrase picture Chuck "When At bottom Jump ..." Said following card 115. On other side photograph printed Chvala's *46 over the Senator
text is mug shot: Senator, Hooked To So She Be A State
Lassa Wanted With Chuck Chvala. Up Politics
A Tale Wisconsin a state she wanted to be day, Julie Lassa decided One if Leader Chvala Chuck So she asked Senate senator. could, okay and he said she gain had to promise what she
Nobody knows sure for compliant a approval. But wanted more his Chuck senator, got he so to work. with threats. best fundraise unsubtle he did was
What at a fundraiser sponsored even Lassa Chvala Populist country ritziest club. state's giddy dissent. And he was care much for didn't Chvala Julie. the idea Senator with decisions party bosses made days like the old when Just us all. charged But then Lassa's mentor was with 20 felonies things apart. fell The End?
Extortion, office, play, lying, misconduct in public pay to cheating stealing. gone politics Wisconsin has com- astray. pletely Please call Julie Lassa... and the rest and tough questions you ask them compromise —did your integrity, you along illegal game, did play with an you did tax misuse dollars to win elections?
And, you importantly, most please up your will clean act? This 116. side of the card also carries two small of Lassa as well as a for a
photographs space mailing address. In two places, mailing indicates that it was (the "The produced Alliance for a Working Wisconsin" Alliance) a post Waunakee, with office box in Wisconsin. The was mailing designed embarrass Lassa her to by linking Chvala, Senator had who recently been with several charged campaign-related offenses. The motive for apparent mailing was discourage Lassa from for the state running senate should the 24th District senate seat vacant, become or weaken her if she made candidacy such race. 2002 mailing had no effect on Lassa's
election to she Assembly, as was re-elected with 73 vote, percent of than higher she re- percentage *47 ceived in 2000. At that time, 119. the 24th Senate District was
represented by Senator Kevin Shibilski, also a Demo- crat. Senator Shibilski had angered some members of his party, including Chvala, Senator when he voted for a Republican-sponsored budget bill in "repair" The residual effect of his vote surfaced later in the year Law- Barbara defeated was Shibilski when Senator for lieutenant primary Democratic in a statewide ton governor. election, Senator Shibilski After the 2002 as the Doyle James by Governor-elect designated
was his senate seat resigned He of Tourism. Secretary new to a eventually special led January, which in early vacancy. to fill election filed suit 2003, Lassa January 121. On Lassa's com- defamation. alleging Rongstad,
against in part: stated plaint to run whether not made a decision has
[1.] Lassa [date]. of this seat as vacated [Shibilski's] for State Senate a candidate for Lassa was [2.] did and Lassa mailer-postcard alleged in the text State to ran for the from help Chvala not ask Senator by Democratic Senate, occupied then a seat . .. [Shibilski] Kevin receiv- to citizens falsely message asserts The [3.] a) running for Lassa was mailer-postcard
ing the b) at the demand doing so Senate; that she was mailing, under was, time of the at the who Chvala c) counts; that Lassa was felony indictment indictment led to the conduct that in the involved Chvala. Senator mailer-postcard shows bottom of [4.] following right of the directly to the of Lassa
picture to be appears what over superimposed text that County Sheriffs Dane information from the booking of Chvala: for the arrest office office, pay play, Extortion, public misconduct has politics stealing. Wisconsin cheating and lying, . Lassa .. call Julie astray. Please gone completely tough questions— ask them rest and and the *48 you compromise your integrity, did you did play along illegal game, you an did with misuse tax And, dollars win importantly, elections? most you your will clean please up act? message falsely maliciously
[5.] and asserts to her engaged "extortion," constituents Lassa office," public "misconduct "pay play," as well as "lying, stealing." and cheating has engaged illegal
[6.] Lassa in such activ- ity... and is not involved in any the Chvala matter way. mailer-postcard
[7.] The published was out of ill destroy political will and an intent reputation Lassa's community in the any might and opportunity she have to run political for the State Senate and positions other in the future.
[8.] Defendants have caused to be communicated and published a false and regard- malicious statement ing conduct. Plaintiffs injured by
[9.] Plaintiff has been the false and by lowering malicious communication her in the esti- mation of her constituents and other citizens of the state.
[10.] As a direct proximate and result of the defa- matory statements, Plaintiff has compensa- suffered tory damages, including but not limited to loss of future earnings opportunities, humiliation, damage to her reputation, distress, emotional pain suffering and action, bringing costs incurred in all this in amounts to he determined. 122. The summons issued advised
him that he 45 days had after service to file a written However, answer to the complaint. January attorney, filing, plaintiffs Edward date as same commanding subpoena Garvey, duces tecum issued January Garvey's *49 appear Rongstad 30 for office on at Rongstad subpoena deposition. The also commanded a relating "any bring Com- to the and all documents plaint filed in this matter." attorney, January 23,
¶ 123. On Attorney Garvey that the Crooks, E advised Michael January convenient, either for him or for 30 date was Having response Rongstad. received no defendant Attorney January filed a motion with the Crooks 27, deposition. protective postponing In a order court for Attorney that the action Crooks asserted motion, this upon subpoena until the defendant not served and were Attorney Garvey. January day he wrote to 22, the before "subpoenaed plaintiff Defen- had Thus, claimed, he days Rongstad deposition before scheduled 39 for dant required an answer." to file he is even accompanying January In the 27 brief Attorney for time to answer Crooks asked motion, filing anticipate complaint. a motion also "Defendants forcing Again, complaint. the summons dismiss prior undergo deposition Rongstad ato Defendant subjects preliminary him to matters of these resolution expense." annoyance, oppression, undue burden added.) (Emphasis Attorney January filing 28, on In a second in an affidavit:
Crooks swore moving your papers, initial mentioned in the That as complaint dismiss the filing a motion to plans affiant upon a claim fails to state entirety, as the same in its request granted. [The] relief can be which defendants the Court until any depositions adjournment an after opportunity has an to hear said (Emphasis motion. added.) January ¶ 126. On Defendant also explaining why filed an court, affidavit with the Janu- ary stating, "[Y]our 30 was inconvenient and affiant has attorneys ordered his to file a motion to dismiss the upon case, based his belief that it is meritless and done political purposes, pursuit rather than for of actual added.) damages." (Emphasis January County 127. On 2003, Dane Circuit Judge Michael N. Nowakowski heard the motion to quash Attorney Garvey's subpoena January for the deposition. Attorney began presentation Crooks his with the observation that "within the I lawsuit think entering dangerous grounds. we're . .. real If the Court go essentially allows this to sanctioning forward, the Court is *50 system put process where we ahead purported legitimate what is to be a lawsuit." Rongstad's attorney argued ¶ pur- 128. that the pose political. "[W]e of the suit was intend to file a motion to dismiss the entire lawsuit within a week to 10 days.... subject [To] [Rongstad] deposition to the process guise legitimate under the of a lawsuit is not added.) right." (Emphasis
¶ impressed. 129. The circuit court was not The knowing court chastised counsel for not whether he and Rongstad, present, who was not were available for a January deposition, yet request it refused counsel's to call his office. The court said:
I will make point this respect with to some of the you've contentions that raised. There is no basis under say law to that simply because only someone has recently been represents served and they that intend to file a motion to they dismiss the case that are therefore subject immune from or having not deposition their applies. that simply principle That is not a of law taken. added.) (Emphasis there thing apparent... The other that is is that served, have are other defendants who have been only been identified as Does not been named and have Garvey try and client are entitled to and that Mr. his they are .... find out who to a agreed deposi- Ultimately, parties 130.
¶ that deposition, 2003. At Monday, February tion on certain on con- questions declined to answer on the advice of counsel. grounds, stitutional following day, February At a hearing attorney Rongstad accepted stressed Rongstad's objected he mailing, for the but full responsibility about membership comprehensive questioning which the and the with organization speed proceeding. was rebuttal, Attorney Garvey argued: In is We now coming up. "There is a election special I vacant, therefore, think it that seat is know that of this that we to the bottom get extremely important as possible."3 as quickly declared: 133. The court an individual private
This is a lawsuit which basis damages on the injunctive relief citizen seeks defamed .... allegations that she has been of her rights ... common law suit asserts *51 in this weighed to be are different ... interests [T]he enforcement arena. government setting pure than the order for an an executive Doyle did not issue Governor February election until April special and an primary 1April 2003). (Feb. 19, No. 4 Executive Order 2003. See 134. The court distinguished NAACP v.
Alabama,
(1958),
Rongstad is ordered to questions answer all inquiring as to the names and any behavior persons other preparation, involved in the funding or distribution of added.) mailing. (Emphasis on, Early rejected court to file request briefs on the issues, and, after its ruling, rejected a stay so that Rongstad could seek supervisory writ.4 The court underlined its position: "The suggestion that [Rongstad] and his counsel have been denied the opportunity to make presentation on the two issues that were alluded to by Mr. Crooks is unfair, is an simply unfair characterization of what 4Rongstad promptly asked the court of appeals stay circuit court's order "to answer all questions inquiring as to the *52 transpired... unexpectedly I when was confronted with this issue." February "roughly
¶ 6, 136. On after 10 hours" pages deposition, Rongstad and over 400 asked the Attorney a motion for court to hear reconsideration. argued claimed Crooks that Lassa that she was defamed position Representative "in the context of her as a State potentially a State Senator. She is an officer of the I Wisconsin, and believe as result of that State applicable are to the state action cases Court's analysis." Moreover, said, he the court's order itself "state action." constituted
¶ The denied motion for reconsid- day political "[I]t's stated, eration and a sad our activity system kind of when somehow this is covered up I and evaded. Seldom have seen such an abuse." February Rongstad
¶ an 10, 138. On filed answer complaint. defenses, to the For affirmative complaint upon a claim asserted that the failed to state may granted; which relief postcard be the statements defamatory; were not the statements substantially postcard true; were the defendant's con- privileged; they statements, and the because duct was public official," related Lassa's "actions as a were liability greater protection they if entitled to from than against private individual. had been made any prepa- involved in the persons names and behavior of other 4, ration, mailing." February funding or distribution of the On 1, On the court of appeals petition. April the court of denied the Rongstad's request appeal for leave to and his appeals denied 1, day, April the court temporary motion for relief. On the same The Rongstad's request supervisory for a writ. appeals denied failure "to majority pursue characterizes actions as 16, majority and failure to "exhaust all appeal," op., Majority op., review." procedures appellate available n.27. following day, February Attorney together dismiss, filed a motion to with a
Crooks 15-page discussing principles brief the constitutional supporting the motion.5 and facts *53 February argument ¶ 140. 18 the court heard On by Attorney Garvey protective a motion for a order quash subpoena depose granted a Lassa. The court delaying any deposition motion, of Lassa the until after March 15. February
¶ 141. On 21 Lassa moved for sanctions. Rongstad requested contempt that She be held and impose any continuing court forfeitures for that the Hearings violation of the court's orders. were held on February imposed March 11. The a 28 and court sanc- attorney $32,000 ordered, tion of more than fees beginning Rongstad pay 13, March a forfeiture of day per complied until he with the court's orders. $1000 April handily 1, 142. On Lassa won a Demo- primary defeating senate, election for the Attor- cratic ney ultimately exposed having Paul, Alex who was mailing. expensive primary financed the 2002 In adver- tising, promoted paralleled post- Paul themes that the Attorney Garvey prompting publicly card, threaten depose campaign Paul's to determine whether Paul anything mailing. Paul, had to do with the Lassa squabble ads, J., Mar. In over Stevens Point April special election, the 29 Lassa was elected to the winning percent senate, more than 61 of the vote. majority plays up February circuit court's schedule, briefing gave only which Lassa one month to answer Majority op., brief on the motion to dismiss. ¶¶ time, reply By 55. Lassa filed her brief on March 14. attorney fees, had held in contempt, imposed Rongstad pay per day and ordered that a forfeiture of $1000 complied until he with the court's orders. July long 8, 2003, On after election, a County judge
different Dane February denied the defendant's August 11 motion to dismiss. On 15 the court granted judgment. By Senator Lassa's motion for default stipulation, the amount at stake this review is $65,000.
II. ANALYSIS
¶ 144. This case was commenced
aas defamation
public
during
official
suit
who was criticized
campaign.
facts,
contested election
of its
Because
epicenter
principles,
case is at the
of First Amendment
only
heavily protected
inasmuch as it involves not
government officials,
freedom to criticize
Herbert v.
(1979)
Lando,
Sullivan,
¶ 145. Because this case involves review of
affecting political speech,
cial determinations
this court
apply exacting scrutiny
must
to these determinations.
Sullivan,
outset,
¶ interests, 146. identifies two state public being the interest of a candidate for office in free ensuring defamation, from and the state's interest Major- during campaigns. accurate information election majority surprising op., ity ¶ then reaches the 41. The requiring to dis- that the order conclusion membership Alliance, who would then close highly publicized defendants in a defama- be named as Major- rights. Amendment suit, did not chill First tion majority ity op., ¶¶ result, concludes 67-68. As competing interests to that it need not balance the court's decision to com- determine whether the circuit narrowly Majority op., pel disclosure was tailored. agree. I cannot although agree affording I First, that candi- ensuring
dates a means to relief from defamation during campaigns accurate information election are le- gitimate disagree compelling Rong- interests, I that state membership to disclosethe of the Alliance advanced stad compelling Rong- Second, I either interest. believe effectively membership information, stad to disclose guaranteeing the unmasked individuals would be- substantially lawsuit, in this chilled come defendants rights. Consequently, Amendment I conclude that First court could not have concluded that the state the circuit outweighed Rongstad's privilege interests assertion of determining capable that Lassa's claim was without first defamatory meaning. Thus, I conclude the order of compelling narrowly
disclosure was not tailored and support imposition cannot of sanctions. Compelling Interest Justified Disclosure A. No State implicates interests, 148. Lassa's suit two state being public free the interest of a candidate for office ensuring defamation, from and the state's interest *55 Major- during campaigns. accurate information election ity op., ¶ 41. At the time the circuit court ordered membership Alliance, to disclose the of the compelling. neither interest was
254 Protecting Against 1. The State Interest in Citizens Defamation
¶ 149. Two features of claim Lassa's dilute the strength protecting state's interest citizens during campaign First, from defamation. an election preventing state's interest defamation is counter- promoting political balanced its interest dis- Roy, course. See Monitor Patriot Co. v. 401 U.S. 272 (1971). duty protect speech involving A court's public figure heightened during Roy, elections. See (stating atU.S. that the First Amendment "has urgent application precisely its fullest and most to the office"). campaigns political conduct of Courts must reality "[t]he reputa- be solicitous of the that clash of staple campaigns," tions is the of election and that campaigning necessarily reputations. entails bruised Supreme explained:
¶ 150. As the Court It is of the consequence utmost the people should discuss the character qualifications of candidates suffrages. for their The importance to the state and to society of such advantages discussions is so vast and the great they derived are so more than counterbal- ance the inconvenience of the private persons whose may involved, conduct be injury and occasional to the reputations yield of individuals public must to the public welfare. The benefit from publicity great is so injury and the chance-of private character so small that such discussion privileged. must be (quoting MacLennan, Id. Coleman v. E98 (Kan. 1908)).6
6 The United Supreme expressed States Court has doubts as exiguous [even] to "whether there remains some area of defama against tion may [during which a candidate have full recourse *56 a defamation Second, presents Lassa's suit a media or non-media aby figure against
claim public involve a conditional "which will always defendant, See at JI —Civil 2500 9 privilege." constitutional Wis added).7 principles pertaining The central (emphasis this by defamation were summarized figure public Journal/Sentinel, Inc., 210 v. 2d Torgerson Wis. (1997): 472 524, 563 N.W.2d imposes Amendment a constitutional The First public of statements about privilege publication on the are false and defa- figures, even when those statements however, conditional, and the matory. privilege, require- of actual malice. The condition is absence is a minimal accom- proven ment that actual malice be figures reputational public interests of modation community's public in unfettered de- and the interest bate. showing requires
Proof of actual malice knowledge of defamatory published was with falsehood falsity disregard reckless for its truth. its or with Id. at 535-36. (1971). Roy, Patriot Co. v.
elections]." Monitor 401 U.S. " Roy noted that actionable defamation is '[i]f The Court field, energies of might suppose in this one that the chief possible courts, every political campaign, time after would be for some Id. Noel, (quoting by absorbed libel and slander suits.'" Defama- Candidates, L. tion Public 49 Col. Rev. 875 Officers (1949)). majority involving cases claims Although the cites several office, majority op. public made candidates for of defamation single n.14, majority fails to cite a case where claim. prosecuting a defamation candidate succeeded categorization A this identical has been "Law Note" with Jury since 1984. of the Wisconsin Civil Instructions part discourage ¶ 152. To the use of defamation claims suppress political speech, as a tool to candidates for public high prove office must meet a standard to public defamation. It is not that we love less, officials expression but that we love freedom of more, that we any public high must hold official to a standard in a *57 defamation suit. engage I doubt that if this court were to sentence-by-sentence analysis Rongstad of the mail- (or
ing whole), take it aas it would conclude that the mailing defamatory was under the United States Con- majority stitution. It is obvious that shares this assiduously any pronounce- view, for it avoids definitive attempts ment on defamation and to recast the issues any pronouncement unnecessary. so that such my Rongstad mailing ¶ 154. In view, the was defamatory offensive and unfair but not in a constitu- every right angry tional sense. had Lassa to be and to steps take to address the criticism she received. On the public hand, other she awas official with access to the ample upcoming April news media and time before the rally people elections to to her defense. There is no why discernible reason the court should have forced Rongstad every question to answer related to the 2002 mailing determining before that Lassa's suit could survive a motion to dismiss. Ensuring
2. The State Interest Accurate Informa- During Campaigns tion Election majority's ¶ 155. The claim that the state had a compelling interest to ensure accurate information dur- ing campaign proves equally unpersuasive an election in this case. mailing un- 156. The nature overriding any had an claim that the state
dermines protecting public from fraudulent interest speech. is, without a court The fact even libelous ruling, mailing mailing was so backfired. political transparently that it in nature cartoonish Berry, helped Bill Lassa; it her.8 As did not hurt put Journal, it, "An Point editor of the Stevens former get girl up a local farm here and doesn't trash outsider away (Aug. Berry, counterpoint Bill it." See Point with 2003), http://www.FightingBob.com. own Lassa's 28, complaint
acknowledges
voting percentage
her
immediately following
up in
distribu-
the election
went
mailing,
impact
Accord-
when its
was fresh.
tion of the
proposition
accept
ingly,
it
is difficult to
mailing
anyone.
misled
mailing
did mislead
more,
157. What's
if
respond
anyone,
and set the
had months to
Lassa
straight. McIntyre,
at 352 n.16. In
514 U.S.
record
Cf.
*58
distinguished
McIntyre
Supreme
the
Court
between
the
speech
prevent
fraudulent and libelous
need to
an election and
in
"eleventh-hour" before
occurs
McIntyre:
Supreme Court noted
As the United States
People
intelligent
the common man.
are
Don't underestimate
writing. They
enough
anonymous
an
can
to evaluate the source of
anonymous. They
anonymous. They
it is
can
it is
know
see
they
anonymity along
message,
long
as
as
are
its
with its
evaluate
then,
be,
they
message.
permitted,
read that
And
once
must
to
so,
responsible,
they
is
what
have done
it is for them to decide what
valuable, and
is truth.
what
Comm'n,
n.11
pounded upon NAACP,
Buckley
decided in 1958, and
to determine whether
made a factual show
ing that disclosure would chill First Amendment
rights. Factually,
present
very
however, the
case is
Buckley,
any
NAACP,
different from
of the other
majority
cases the
cites. Unlike the cases cited
majority,
public
attempt
this case concerns a
official's
membership
to obtain confidential
information in the
purpose
adding
course of a defamation claim the
for
anonymous
those
members as
in the law
defendants
suit. This distinction matters because the amount of
money required
private
time and
individuals to
against
recog
defend
a defamation claim should be
objective,
nized as sufficient to establish an
substan
upon
rights.
Torgerson,
tial chill
First Amendment
See
("The
being put
¶ 159. Since the Court decided NAACP Buckley, legislatures, courts, and commentators *59 appreciate just have come to how much lawsuits like rights. this one chill First Amendment Lassa's defama- 259 against Rongstad proto fits within the classic tion suit (a Strategic Against type of a SLAPP suit Lawsuit Participation). Daerr-Bannon, L. Public Kathleen Cause Bringing Defending Action: Anti-SLAPP Motions of Dismiss, 317, 22 2d to Strike or Causes Action 323 (2003) among (noting libel and slander are the most alleged complaints). SLAPP common claims SLAPP "are lawsuits for suits fashioned traditional tortious thinly actuality disguised are in efforts misconduct but litigation process in citizen to abuse the order to silence public well-being." affecting discussions on issues Id. distinctly purpose "The ... is at 322. SLAPP private merits, succeed but to so intimidate (or official) government citizen citizen even the activity expense, anxiety ceases because the risk and engendered by process litigating a SLAPP is too great." Attorney, Discipline Id.; In accord re 815 N.E.2d (Mass. 2004); 1072, 1074 Dickens v. n.2 Provident &Life App. Co., 11 705, 713, 117 Cal. 4th Cal. Accident Ins. 2004). (Ct. App. Rptr. 3d 877, 882 Washington ¶ 160. Since the State of enacted the procedural imposing upon first statute hurdles SLAPP legislation least 19 have 1989,9 suits at states enacted (anti-SLAPP statutes). discourage SLAPP suits See states); supra, (listing Daerr-Bannon, at 341-43 Project, http://www.casp.net/ California Anti-SLAPP (last 2006) updated (listing Feb. menstate.html states). February In addition, as of 2006 anti-SLAPP legislation pending in 10 states. Anti- was California Project, http://www.casp.net/menstate.html SLAPP (last 2006). updated Feb. (West (Histori 2005) See Wash. Rev. Code Ann. § 4.24.510 Notes). Statutory
cal and
*60
case,
161. Until this
the
SLAPP
term
suit had
relatively
jurispru-
been
unheard of in Wisconsin
only
Mention
SLAPP
dence.10
of a
suit is made in
one
Vultaggio Yasko,
Wisconsin case.
v.
See
Plaintiff has to manufacture a claim defamation out of political negative pointing accurately run-of-the-mill ad out that supporters charged of her been one has with criminal conduct. complaint hinges allegation, unsupportable by Her on an the mailer, text of that the actual mailer accuses her of criminal allegation, plaintiff aggressively conduct. Based on tenuous this pursued discovery Rongstad, from contentious defendant Todd for express furthering purpose political goal running her the State Senate. concept though
Because the a SLAPP not the term— suit — court, before the identifying was circuit this case as a SLAPP Majority calculus[.]" suit does not alter the "constitutional See Rather, necessary legal were op., principles presented parties, to the court but the court erred how it competing interests. balanced Major App. Silna, v. 134 Cal. 4th
the Alliance. Cf. 2005) (Ct. Rptr. App. 1490-91, Cal. 3d (noting applied to actions "the anti-SIAPP law has been arising discussing qualifi- political from literature elections."). during cations of candidates in- confidential 162. Use of to obtain .. membership pertaining Alli- to the formation *61 majority's response, and the ance, the demonstrate legislation prevent parties manipulat- from need for ing to system legal the to chill the exercise of First rights. legislature The the should consider Amendment experience have anti- of other states that enacted legislation adopting mod- SLAPP statutes consider upon in anti-SLAPP like Cali- eled the statutes states (West 2005), § fornia, Proc. 425.16 Cal. Civ. Code § Ann. Massachusetts, Mass. Gen. Laws ch. 59H (West 2005). potential strategic The for the abuse legal process put real. As it: is one court by target forcing
SLAPP function the into the suits judicial the filer the upon arena where SLAPP foists target purpose of a expenses the defense.... of such ranges gamesmanship simple past from retribution for say, discouraging activism to future activism. Needless to target in of the often disposition an ultimate favor victory. Those merely pyrrhic amounts to a who lack the play financial resources and emotional stamina to out "game" defaulting despite face difficult choice or to being brought meritorious defenses their knees to in ripple society settle. The effect of our such suits outspoken who enormous. Persons have been issues public targeted suits or have importance such who witnessed such suits will often choose the future to head, greater stay gun Short of a threat to silent. scarcely expression imagined. First Amendment can be (N.Y.Sup. Marrone, v. Ct. Gordon N.Y.S.2d 1992). Compelling
C. The Order Disclosure Was Nar- Not rowly Tailored compel
¶ 163. The court's circuit order disclo- narrowly sure was tailored. The court failed to scrutiny exacting legitimacy examine with of the asserted state interests and dismissed unsubstanti- ated that disclosure chill assertion would rights. upon First errors, Amendment Based these comply circuit court ordered ery with its discov- pay per day contempt. order or $1000 Without a prior Rongstad's mailing capable determination that was defamatory meaning identity of a and that the of Alli- necessary proceed, ance members was for Lassa's suit to accept I cannot that the circuit court's order nar- was rowly protect rights. tailored First Amendment It is difficult to understand how Lassa's being interest in compelling free from defamation was furthered anonymous speakers
disclosure at early ingre- necessary such an date. had all Lassa requiring dients to clear her name without the disclo- *62 membership. Cahill, sure of the Alliance In Doe v. (Del. 2005), by majority, plaintiff A.2d 451 cited the the identity any did the not know of when defendants discovery sought; identity was here Lassa knew of the primary Therefore, defendant. because "there is many plaintiffs bring reason to believe that defamation anonymous merely suit to unmask identities of Cahill, critics[,]" A.2d at circuit protected Rongstad anonymous should have and the speakers any potential from ulterior motive consid- ering compelling motion to dismiss before discovery.11 deciding In otherwise, and the circuit court agreed that fact Lassa to dismiss her defamation prejudice claim of part agreement with as the settlement sight purpose majority appear of have lost of to litigation proper balance of the and defamation rights in this case. constitutional at stake against claim a To succeed a defamation plaintiff prove public malice, official, a must actual discovery. might require case, In this how- well which preliminary ever, resolve, to such as there are issues mailing in the were substan- whether the statements tially simply defamatory a of law. or as matter true public figure qua non defamation is the The sine of damage a of false or statements that distribution words person's reputation. A raises a threshold motion dismiss adjudicate
challenge a lawsuit, to a which court should early disposed can be so that meritless suits delay discovery expense and and addi- without the litigation. Wright Alan & R. tional Charles Arthur § Miller, Civil at Federal Practice Procedure: (3d 2004). Generally, a com- 56-57 ed. the standard plaint meet must to survive a motion dismiss complaint defamation, however, A must toothless. only higher a meet a standard. Not must court decide as inference Lassa more un- supports an that was interested masking anonymous being than free from her critics she was defamation. curiae, the appeals
In its to the court of brief amicus Union of re- American Civil Liberties Wisconsin Foundation action, i.e., "Strategic a SLAPP ferred Lassa's lawsuit as notes, Against Participation." Lawsuit Public It dangerous speech, are so to free it is Because SLAPP actions protection of First freedoms crucial to the continued Amendment timely speech recognize courts suits in dismiss these upon manner, upon proof of failure to state a claim which relief may granted, compelling questions before he answers constitutionally potentially protected require disclosure of *63 political associations. complained a matter of law that the content of can defamatory support meaning, particular a but "the complained words of' be forth must set in the com- 802.03(6). § plaint. Wis. Stat. complaint
¶ 167. Lassa's made of assertions false simply disputed statements that are not contained in the mailing. "particular complained The words of' were paragraph either not identified or consisted the entire beginning fragment: "Extortion, with the sentence mis- public pay play, lying, cheating office, conduct stealing." paragraph Yet, this does not contain an asser- any tion that Lassa herself committed act in the fist. majority acknowledges ¶ 168. The that a "defama- plaintiff employ tion should not be able to the rules of discovery identity anonymous politi- to obtain the of an speaker simply by filing complaint facially cal a Majority op., majority unsustainable." The rea- speaker's that "the use sons uncover the identity may right chill the exercise of the free speech." position, support chip Id. In of this the blue joined urging amici this case the defendants in to us require courts to "decide whether a defamation com- plaint may granted a states claim on which relief be imposing sanctions for the refusal to disclose before type privi- information based on the lege Rongstad of constitutional (emphasis Id., ¶ has asserted." added). majority agrees, determining that: law, [U]nder Wisconsin circuit requiring the court to compelling decide motion to dismiss before disclosure imposing sanctions best addresses the concerns expressed an .... When faced with assertion of consti- against privilege tutional disclosure information identifying otherwise-anonymous organization mem- bers, pending the circuit decide motion court should *64 sanctioning for to state a claim before
to dismiss failure party refusing for to that information. the disclose ¶ Id., 52. Unfortunately, majority apply
¶ the fails to 169. though present the defendants this rule in the requested repeatedly case even first that the circuit act January In Brief in the motion to dismiss. their Support Order, the defendants of Motion for Protective "unreasonably objected plaintiffs expe- effort to to the discovery process. . . . Plaintiffs has dite the counsel explanation why begin must offered no to immediately." postponement for a of Defendants asked they deposition opportunity until the to the had answer "[F]orcing complaint a to the and file motion dismiss. undergo deposition prior a to a Defendant subjects preliminary these him to resolution annoyance, matters of expense." oppression, burden undue and added.) day, Attorney (Emphasis The next Crooks re- quested adjournment any depositions an after until motion the court heard the to dismiss. complaint Defendants the on Feb- 170. answered February
ruary filed a motion to dismiss on 11. and filings court could asked for earlier from the The have expedited discovery. Instead, in lieu the defendants up depositions and defense was tied for hours hours hearings opportunity file before it had an and time, to dismiss. At the same brief motion almost plaintiff submitting of the burden of court relieved deposition might a have been to the defense useful establishing of certain controversial state- the truth Notably, protec- mailing. ments court issued plaintiff but denied tive order for the defamation same the defamation defendants. majority concedes, 171. As the the defense was get attempting
still decision on its motion to Majority April. op., ¶ Nonetheless, dismiss late the court made no decision on the motion to dismiss long July imposed, until after sanctions had been days after the motion to dismiss had been filed. majority minimizes the defendants' ruling efforts to obtain a on the motion to dismiss *65 imposed court are before the sanctions. We told that few appellate courts have been asked to determine whether procedure Id., ¶ such a should be followed. 46. short, Rongstad argument
In did not raise his required the circuit court was to address his motion to compelled discovery before it dismiss until after the Moreover, imposed discovery argu- the sanctions. parties' ment that the constitutional dimension of the discovery dispute mandated this course of action was a relatively considering existing novel one law at the Id., time. 58.
Poppycock. Contrary majority's statements, to the
argument that courts should consider motions to dis- summary judgment compel- miss or motions for before ling discovery in libel suits is not that novel. The Judges" "Defamation Law Note for Trial has contained following language since 1984: usually in inquiry The initial a defamation action is in capable whether the words at issue the lawsuit are defamatory meaning. inquiry This is for the trial judge normally presented and is on a motion to dismiss. dismiss, On a it the function of the Court motion is capable a communication is of a to determine whether defamatory meaning. added). (emphasis precise at 3 This
Wis JI —Civil 2500 Attorney language in was cited to the court Crooks's 267 February beginning of brief, 11 at the the section titled on to state: "The "ANALYSIS."Counsel went Wisconsin advocating Supreme in has been clear the use of Court summary judgment in and motions to dismiss cases involving quoted Torg- defamation." The brief cited and erson, in the court said: which Sullivan, [Co. Since New York Times v. 376 U.S. (1964)] summary judgment key in played
254
has
role
Indeed,
protecting First Amendment
values.
it has been
cases,
public figure
said that
in
defamation
"because of
summary judgment
importance
speech,
of free
'rule,'
exception."
[citation omitted]
and not the
appeals
"[s]ummary
Wisconsin court of
has said that
judgment may
in
particularly
appropriate
be
defama-
mitigate
potential
'chilling
tion actions
order to
speech
press
might
effect' on free
and the
result
lengthy
litigation."
from
and expensive
Torgerson,
Allison,
¶ Lando, In a 175. Herbert v. seminal case on figure Supreme public defamation, the United States upheld plaintiffs a Court defamation demands for civil discovery, but the case involved the for "actual search assuming "damaging malice," the existence of false- Powell, concurrence, hoods." Justice remarked a discovery supervising court, in in a district libel suit public figure, duty "has a to consider First Amend- private ment interests as well as the of the interests plaintiff." might instances, Id. at 178. "In some it be delay [the court] appropriate enforcing a discov- ery hope demand, in the that the resolution of issues summary judgment through developments or other discovery might reduce the need for material de- Mar- manded." Id. at 180. Justice Brennan and Justice stronger shall made even comments dissent. are echoed in Sack on 176. These sentiments satisfy plaintiff required "A should be
Defamation. court that the claims at issue are not frivolous infringing constitutionally before based interests." Libel, Slander, Sack, Problems Robert D. Related cases). (2d 1994) § (citing 12.3.2.2 ed. a host of light pervasive authority In to the majority's contrary, accept hard to conclusion it is argument Rongstad's the circuit was so novel that did not have to address motion to imposing compelling or discov- dismiss before ery Majority op., ¶ sanctions. mailing capable of a 178. Even if the were
defamatory meaning, however, the court should still timely ruling on his motion to afforded have
269
dismiss. While Lassa had an interest under the McIn-
free from defa-
tyre exacting-scrutiny
analysis
being
mation,
had a
legitimate First Amendment
anonymous
interest
See
protecting
political speech.
mean defamatory anonymous speaker did not issue a who court should have minimum, At a the circuit statement. mailing capable of whether was determined ordering discovery defamatory meaning a before imposing sanctions. Finally, wrong I if I were in how even involved, I cannot understand the interests balance Rongstad majority give can refuse to how Jacque Steenberg adopts. v. of the rule it Contra benefit Inc., Homes, 605, 625, 2d 563 N.W.2d 209 Wis. (1997). Jacque In stated that a court should this court retroactively refusing apply to do so a new rule when change deprive party prompted who would successfully expense any efforts and benefit from its Jacque, fighting change 2d at rule. 209 Wis. an old grave injustice majority Rongstad does 625-26. by denying efforts. him the benefits of his
III. CONCLUSION case, In no has ever ruled this judge defamatory. mailing A circuit court was (Maryann Judge) mailing Sumi, ruled that was meaning only capable defamatory contempt but after imposed. procedure sanctions had been This denied judicial ruling defendant an authoritative required his motion to dismiss before the court him to discovery. If submit to total the court had made a ruling prompt mailing capable that the was of defama- tory meaning, Rongstad might yielded have to the any ruling event, order. In court's the court's would gone long way protecting have toward Lassa's name *69 unwillingness before the senate election. court's timely ruling permit- amake on the motion to dismiss opposite ted the inference. ruling,
¶ 183. In the absence such it is draco- subject Rongstad heavy, heavy nian to to the financial remedy sanctions at issue this case. We cannot procedural wrong that trivialized the defendants' con- right anonymously right stitutional speak exercise their freely. should, and associate can and We we nullify penalty imposed upon however, the defen- attempting rights. dants for to assert First Amendment beginning, ¶ 184. From the the circuit court though plaintiff helplessly treated this case as were speeding just chained to a railroad track with a train supported around the bend. The facts never such ur- gency. savvy legislator Senator Lassa is a shrewd and good reputation popularity. awith and durable She percent waited more than two months after she won 73 of the vote before she filed suit because she did not have good to rescue her name. She did not file suit in her county protect reputation among home her her County, repu- voters. She filed suit Dane where her tation was never at risk. majority nothing socking
¶ 185. The sees amiss advocating very $65,000 the defendant for First approves. principles This that this Amendment significant prove libel doubt to be a will without case promulgated, necessarily the law it has but case, not plaintiff got figure public defamation for the fact that proving everything ever defama- she wanted without tion. majority I fear decision chills Because only expression for members
freedom of respectfully I citizens, Alliance, but for all Wisconsin dissent.