*1 proclivity physical Kevin has a toward 5.
abuse; early stages recovery in the
6. Kevin is chemical-dependency problem[.]
from a
Although [parental quotient] score Father’s good potential parenting,
shows now, in the parenting
children need Therefore, I with the ma- disagree
future.
jority’s reliance on the trial court’s statement preferable
that “while Dawn well be the time, parent at the immediate he
custodial prefer- opinion of the that Kevin was the ” ‘long parent able haul.’ over I trial 29] think the court also erred
[¶ emphasis “upon too
placing much stabili-
ty continuity provide that could Kevin
through relationship with the Jones fami-
ly.” These children don’t need to live on the “family support
farm benefit from the
systems large family.” and close Jones family support
I submit this would be times,
there at all even the children lived
Sisseton with their mother. Therefore, is the
[¶30] mother best temporal,
custodian to nurture children’s
moral and mental welfare at this time and for
the foreseeable future. 25-4-45. KONENKAMP, J., joins this
dissent.
Judd A. Appellant, PUBLISHERS,
NATIVE AMERICAN Appellee.
INC., Defendant and
No. 18897.
Supreme Dakota. Court South
Argued March 10, 1996.
Decided Jan.
127 *3 amputation
bleed. Infection set in and be- necessary. came The article was not true many respects. demanded Native Publishers, (N.A.P.), publisher
American Inc. newspaper, retract article. N.A.P. refused and sued defamation. Discovery followed and N.A.P. moved for summary judgment. motion, summary judgment In5] *4 qualified privilege claimed because podiatric common in interest care existed Sparagon
and could not show malice. The Sparagon trial court held was not a figure, official or a common interest existed, Sparagon and to his bur- failed meet published den show that N.A.P. the article with malice. The court granted N.A.P. sum- mary judgment. Sparagon appeals.
FACTS April newspaper [¶ 6] On N.A.P.’s article, published an “Toenail Removal Costs Ridge Pine Man Leg,” His written its (Stillman). reporter, Pamela Stillman The LaFleur, Mitchell LaFleur C. LaFleur Sparagon, article referred to chief of LaFleur, Rapid City, plaintiff ap- & and podiatry at the United States Veterans Ad- pellant. ministration Medical Springs, Center Hot Viken, Viken, Kenneth R. Dewell of (VA Pecho- Center). South Dakota The VA Center ta, Dewell, City, Leach Rapid & for defen- agreement an has with the United States appellee. dant and (IHS) Indian Ridge Health Services on Pine provide treatment to the reservation Indi- SRSTKA, Judge. Circuit (Clin- population Ridge an at the Pine Clinic Sparagon appeals 1] A. [¶ Judd from the ic). granting summary judgment in favor of [¶ 7] One week before Publishers, Native American Inc. af-We article, Stillman contacted Delores Bruce firm, part, remand, part, reverse and (Bruce), representative affairs remand, and vacate part. and Center, telling the VA Bruce she wanted Sparagon. information about in- Bruce BACKGROUND AND PROCEDURAL formed that Stillman Lee was treated HISTORY generally Clinic and that diabetics’ extremi- (Lee), age 2] Hobart Lee [¶ a diabetic ties are at extreme risk. Bruce furnished an residing Ridge Indian on Pine Sparagon Stillman a news release in which (Pine Ridge) Indian leg Reservation lost his “Thirty percent stated: people of the Indian by amputation. amputation The started the down there have and no leading chain of diabetes access events to this suit. podiatric they right care. We’re all have (now 3] [¶ The Lakota Times known as requested now.” Stillman further informa- Today), Country newspaper gen- Indian tion, but stated Bruce she would release no eral circulation that concentrates on issues signed further information without Lee’s con- Indians, relating published an con- article attempted get sent. Stillman stated cerning article, she leg. loss of Lee’s In the Lee; through attorney, consent Sparagon (Spara- Lee stated that Dr. Lee’s Patrick Judd gon) causing removed Lee’s get toenails them to she did such consent. sharing Ridge through agreements Spara- in Pine newspaper The article stated 8] [IF Public Health patient that Hobart had diabe- with Service. gon knew Lee Clinic, removed, toenails at the Lee’s tes and (Mr. attorney sign- Lee’s advised 1991, eventually big toes in December of both time.) Sparagon for Dr. at this ing a release leg. left causing amputation York Dr. is from New January amputation occurred The Springs hospital VA worked for Hot since 1982. the doctor became one facts, however, were true podiatrists than 50 board certified of fewer trimmed, not re- only had toenail Lee one public health. moved, perform did not might there have Mr. Lee believes that incorrectly Spara- identified procedure. Lee way a better to remove the toenails. been further attending physician gon as incorrectly procedure the medical described just way right “It doesn’t seem like the following is the article: to Stillman. toenails). (remove they Maybe do it should it, way podiatrists do but diabetics
that’s the it. have bled that cannot take It shouldn’t costs Pine Toenail removal *5 bad,” he said. leg Ridge man his national In a recent article written By Pamela Stillman Sparagon about publication, VA Dr. talked Times Staff of diabetes on the reserva- the seriousness Lee, of Hobart RAPID CITY-When tion. ingrown Ridge toenails re- Pine had two keep going him to Asked what motivates Ridge Hospi- Pine at the moved December back, week, grows very week after he serious tal, thought it would to the he never lead you high of and tells about the incidence leg. amputation of left his the accom- on reservation the diabetes Rapid leg amputated was Jan. 22 at “Thirty problems. percent of panying foot toe- City Regional Hospital, because of the people Indian down there have diabetes the procedure, Mr. He removal Lee said. nail to care. all podiatric and no access We’re attorney bring against retained an suit now,” they right article have the said. toenails, the Dr. podiatrist removed the who he the Lee is concerned that is not Mr. Sparagon. A. Judd amputation to have had an because one diabetic, Sparagon was a Mr. Dr. knew he used, process and he of the toenail removal said, the on each of but removed toenails Lee complications of others be aware wants by cutting pro- big toes them out which his type proce- could arise from this which bleeding. duced dure. infected, the infec- Both toes became but that I heard “There are lot of diabetics spread, causing poor in the left foot tion to, they may not happening but about this ampu- leg and it had to be circulation the anything.” say knee, Mr. His below the Lee said. tated have does not know what would Mr. Lee infected, also and he fears he right foot if he had not had the toenails happened leg loose too. [sic] that removed. regularly from the Sparagon Dr. travels given have me doctor said it would “One Medical Center Hot Affairs Veteran’s knows? knows problems-but who Who Pine podiatric clinic at the Springs to the might I been the next where have Ridge Hospital, which he devel- Reservation years.” patient oped in 1989. confiden- Because Ridge physician at the Pine tiality to talk about Mr. Lee’s Mr. he is unable Dobbs, said he knows Hospital, Dr. Allen patient. from the He ease without release ease, cannot talk about Mr. Lee’s but and treated about that Mr. Lee was examined said confidentiality. patient He did outpatient clinics conducted because appropriately in say patients that diabetic can be at he have extreme would not recommended consent. extremities, Lee, risk with no matter what is done. Patrick Lee stated neither he nor his uncle, nail was told the removal caused problem “There can even if it be a amputation, but he told Stillman that Lee procedure. problem minor There could be a holding Sparagon liable for his condition. procedure even if I is not done.... Patrick publish Lee did want Stillman to podiatrists know that have reversed dozens the article since Patrick Lee did not want to amputations,” Dobbs said. Dr. try newspapers. his case Patrick Lee nursing Mr. Lee is in a local home while later claim feder- amended Lee’s therapy continues. government al allegation to remove the that April [¶ 10] After on Sparagon attending physician. was the demanded, Stillman, Sparagon by letter to April that N.A.P. retract the article. On ANALYSIS
1992, N.A.P., through its Giago owner Tim (Giago), stated it would correct the false appeal order decide this we statements, requested Sparagon speci- but analyze procedural the substantive and fy parts they which why were incorrect and respecting rules libel claim. were incorrect. many pitfalls [¶ 16] Libel cases have Sparagon replied Giago April practitioner. Over following stated that the years, legislature course of (1) title; statements were untrue: grafted unique procedural courts have lawyer that statement Lee retained a to sue substantive rules onto libel law. rules These toenails; Sparagon who had removed Lee’s substantially prosecution affect the a libel (3) the statement knew Lee *6 case, particularly against a newspaper. had diabetes and removed Lee’s toenail caus- (4) ing bleeding; procedure the caused infec- foot,
tion of Lee’s left and the infection REQUEST FOR RETRACTION spread circulation; (5) causing poor the request [¶ 17] SDCL 20-11-7 relates to a Sparagon statement that believed that he plaintiff bring for retraction. Before a a treated approximately and examined Lee at against newspaper pub- libel action a or the Sparagon why the Clinic. did not state the lisher, manager, plaintiff: editor or the untrue, statements were and never told days [M]ust at least three com- before the N.A.P. treating physician. he was not the mencement of action such serve a notice publication published [¶ 12] N.A.P.S an- person persons against the or said whom Sparagon’s other article request about brought action is to specifying particu- be retraction; it did not retract. larly the or statement statements claimed Sparagon claiming filed suit defamatory. to be false and If trial on the Sparagon defamation. claimed that the ar- appears that such statement or state- defamatory ticle was suggested because it good ments or published were written wrong by he something removing did faith and the with belief founded leg amputated. toenail that the caused be grounds reasonable that the same were investigated [¶ 13] N.A.P. the Lee case true, and a full and fair retraction of the investigation after sued. correcting any erroneous matter and all Stillman, showed that preparing when the of fact misstatements therein contained article, interviewed Lee who told her that published was in the next the issue of toenail removed his and it became paper, daily or in the case a paper amputation. causing infected the Lee also days within three after the was mistake persons that prob- stated other had a similar brought to attention of publisher, lem. editor, manager type conspicuous as During discovery, Patrick original Lee testi- as the statement and the same request fied Stillman position did not consent paper, plaintiff to talk be will asked, physicians, with Lee’s if punitive damages. he was entitled to recover no
131
injurious
private
a
judge
tory
trial
deter-
falsehood
individu-
20-11-7. The
347,
requirements
at
94
at 3010.
plaintiff
if
fulfilled the
al.” Id.
S.Ct.
mine
statute.
of this
We
York
followed
“New
PUBLIC OR PRIVATE FIGURE
Press,
Viking
Rule”
Janklow v.
Times
Next,
(S.D.1990).
In
the trial
must determine
that
we
N.W.2d
ease
(In
figure
is
plaintiff
public
guidelines
public figure
a
official.
plain
set forth
that a
figure”
public
opinion, “public
prove:
includes a
this
tiff in a libel suit must
official.)
libel
a
Here a modern
case reaches
(1)
evidence;
by
convincing
libel
clear and
major
If the
a
plaintiff
fork
the road.
(2) more than a defendant’s failure to in-
public figure, plaintiff
heavy
faces a
burden
vestigate;
prove the
claim.
(3)
that
defendant entertained serious
figure bringing a libel
public
[¶ 19] A
truth;
as to
doubts
proof
higher
than an
case faces
burden
high degree
that the
had a
defendant
ordinary
litigant
civil
as a result
the “New
falsity;
of awareness
“prohibits
Times
This rule
York
Rule.”
(5 that the
had
reason
recovering
defendant
obvious
damages
official
for a
from
veracity
doubt
defamatory
relating
informant
his official
falsehood
accuracy
reports.
or the
of his
proves that
conduct unless he
the statement
is,
made with
with
‘actual malice’—that
Id. at
knowledge
it was false or
reckless
[¶ 22] Whether
disregard of whether it was false or not.”
figure in a libel action is a
of law
Sullivan,
New York
v.
376 U.S.
Times Co.
court.
v.
Dev.
Nelson WEB Water
254, 279-80,
710, 726, 11 L.Ed.2d
84 S.Ct.
Ass’n, Inc.,
(S.D.1993)(citing
(1964).
requires
The rule further
Baer,
383 U.S. at
at
Rosenblatt
S.Ct.
“convincing
that actual malice be shown with
606).
677, 15 L.Ed.2d at
clarity,”
Id. 376 U.S. at
S.Ct.
or,
formulation,
L.Ed.2d at
in a later
Welch, Inc.,
v. Robert
[¶ 23] Gertz
convincing proof.”
“clear and
Gertz v.
Supreme
Court established
basis for
Welch, Inc.,
418 U.S.
Robert
*7
determining
public
if
figure:
an individual is a
2997,
(1974).
3008, 41
789
This
L.Ed.2d
S.Ct.
brought
may
rule was later
to libel
extended
suits
In some instances an individual
figures.
by public
Publishing
pervasive
notoriety
Co. v.
fame or
Curtis
achieve such
Butts,
130,
1975,
public figure
388
87
18
all
U.S.
S.Ct.
that he
a
becomes
(1967).
purposes
L.Ed.2d
and in all contexts. More com-
monly,
voluntarily injects
an individual
attempt
An
to
the “New
extend
particular public
himself or is drawn
a
private
York Times
oc
Rule”
individuals
controversy
thereby
public
becomes a
Supreme
suggested
when
curred
the
Court
range
a
figure for
limited
issues.
private
that the rule
also reach
indi
should
Gertz,
351,
3012, 41
public
general
or
DEFINITION OF LIBEL
COMMON INTEREST
Setting
[¶24]
aside the issue of a
[¶ 26] The defense of common inter
summary judgment
against
motion
20-11-5(3),
privilege,
est
often be
time,
figure’s claim for a
let us follow a
question
comes a
in libel actions and occurs
private figure’s
legisla
claim for libel. The
in this case. The
privilege
existence of the
ture has codified the definition of libel.
for the Court and therefore is
unprivileged publica-
Libel is
false and
freely
City
reviewable. Peterson v.
Mitch
by writing
exposes
tion
...
[plain-
which
ell, 499
hatred,
ridicule,
contempt,
tiff]
or oblo-
quy, or which
him
causes
to be shunned or
In determining
publish
if a
avoided,
tendency
injure
or which has a
ed communication is a matter of common
occupation.
him in his
interest,
judge
if
determine
SDCL 20-11-3. The
defense of
communication is made to an
per
interested
action,
be raised
however.
by
son
an
person
by
interested
person
or
who stands in
per
relation to the interested
PRIVILEGE
20-11-5(3).
son. SDCL
inquiry
is to
[¶ 25] The trial
must next
whether,
true,
ask
if
proper
“it is a matter of
examine
the communication
privileged.
interest
relation to that with which
legislature
has codified
priv
and defined
sought
it is
it.”
City
associate
Peterson v.
ilege in libel actions. A communication is
Mitchell, 499
(quoting
N.W.2d at 915
Mc
privileged if made:
Merriman,
Lean v.
42 S.D.
(1)
proper
In
discharge
of an official
(1920)).
N.W.
recently
We have
duty;
quoted,
(Sec
approval,
the Restatement
(2)
any legislative
judicial
proceed-
or
ond) of Torts:
ing,
any
or in
proceeding
other official
An
occasion makes a
condition-
law;
by
authorized
ally privileged if the circumstances lead
communication,
malice,
In a
without
any
persons
one of
having
several
a com-
person
therein,
by
interested
one
particular subject
mon interest in a
matter
interested,
who is also
one who
correctly
reasonably
to believe that
stands in such
person
relation to the
there is
sharing
information that another
interested as to afford a reasonable
the common interest
is entitled to know.
ground for supposing the motive for
innocent,
the communication
or who is Tibke, 479
(quoting
N.W.2d at 905
Restate-
requested by
interested to
(Second)
596).
§
ment
of Torts
give
information;
*8
(4) By a fair
report,
and true
without mal-
MALICE
ice,
judicial, legislative,
or other
plaintiff may
[¶ A
provide
28]
malice
proceeding
official
any-
or of
by showing defendant made a statement
thing
said
the course thereof.
knowledge
falsity
“with
of its
or a reckless
SDCL 20-11-5. Plaintiff
prove
must
disregard for the truth.”
Viking
Janklow v.
unprivileged.
communications were
Subdivi
Press,
ponderance of the evidence
ISSUES
involving pri
trials
proof
of
for libel
burden
since territorial
persons, as it has been
vate
retraction,
I.
Demand for
days in civil actions.
figure,
II.
Public
state,
Dakota became
When South
Summary judgment
question
on the
III.
and the Code of
adopted the Civil Code
privilege,
California,
Civil Procedure
State
Summary judgment on the
IV.
which,
course,
with it the con-
carried
malice.
matters,
jury
in civil
includ-
duct of
cases
jury.
ing
to the
instructions
DECISION
‘preponderance weight
so-called
adopted
rule has been
retraction
the evidence’
I. Demand for
territo-
and used in this state since
courts
argues that before
approved and recom-
days.
It
rial
*9
claim, he must
a defamation
commence
Jury Instruc-
by the California
mended
and
demanding a retraction
serve notice
(6th Ed) (BAJI)
tions,
approved
It
2.60.
the
portions of
particularity which
state with
in E.
by
federal court
adopted
and
the
why they were
incorrect and
article were
Blackmar,
Jury
Federal
Devitt and C.
Sparagon’s letter
claims
incorrect. N.A.P.
Instructions,
71.14
section
Practice and
comply with
demanding retraction did not
1977).
(3rd Ed
say why
it did not
because
SDCL 20-11-7
statutory
(Re-
were false.
such statements
21-00
Proof-Introduction”
“Burden of
impression
one of first
Jury
issue is
1989),
Pattern
retraction
Dakota Civil
vised
South
although the issue was raised
Dakota
South
Instructions.
this,
object
in the United States District Court for the
arrive at
to
we are
look
the
attained,
sought
District of South Dakota. Janklow v. News
to be
as well as the means
week,
(8th Cir.1985).
759 F.2d
employed.
to be
And while it is no doubt
language
true that if the
of a statute is
case,
In that
Newsweek claimed that
plain
unambiguous,
at least if
literal
its
plaintiff’s action was barred because he failed
expression
unjust
leads to no
or absurd
give
pre-action
required by
to
the
notice
consequences, there is no room for con-
Appeals
20-11-7.
SDCL
The Court of
interpretation, yet
struction or
it is also
Eighth
the
Circuit decided that
the issue
true that where a close
literal
construc-
decided,
instance, by
should be
in the first
loosely-worded
tion of a
enactment would
footnote,
the District
Court
remand.
lead to unreasonable or absurd conse-
Appeals
the Court of
noted that the
quences,
fairly suscepti-
act
and the
is also
totally
of whether
20-11-7
SDCL
bars an
construction,
ble of another
the latter is to
required
action in the absence of the
notice
adopted, although
be
not a literal
but
open;
similarly
was
worded stat-
liberal one.... Now it is evident that the
only
punitive
utes
other states
barred
purpose
requiring
sole
of this statute in
itself,
damages, not the action
if the notice
give
notice to be served before suit is to
given.
opinion
was not
This
was later re-
publishers
paper
opportunity
of the
an
by
banc,
Appeals,
versed
the Court of
en
retraction;
publish
only
and the
effect
the District Court never made the determi-
retraction, made,
Newsweek, Inc.,
ap-
if
nation.
case it
Janklow v.
788 F.2d
(8th Cir.1985).
pears on the trial
the article was
faith,
published
good
falsity
and that its
20-11-7,
In statutes
similar to SDCL
misapprehension
was due to mistake or
courts
compliance
other
have held that
facts,
prevent
recovery
prece
the notice statute is not a condition
general damages,
limit
it to actual
bringing
dent to
a defamation action. Estill
retraction,
damages.
made,
does
Co.,
(7th
v. Hearst Pub.
186 F.2d
recovery
not affect in the least
Cir.1951); Meyerle
Co.,
v. Pioneer Pub.
damages.
actual
right
So far as the
568, 178
(1920);
N.D.
N.W.
Clement
damages
recover such
is concerned the
Co.,
son v. Minnesota Tribune
45 Minn.
service of the notice referred to would be a
(1891). Rather,
purpose
N.W. 781
ceremony
mere idle and useless
which the
publisher
such statute is to allow the
an
legislature
presumed
cannot be
to have
opportunity
damages
to limit his
to actual
Hence,
contemplated or intended.
not-
Clementson,
damages. Meyerle, supra;
su
withstanding
general
language of the
also,
pra.
Shipley, Validity,
See
W.E.
Con
statute, yet,
first clause of
only
as it is
Application
struction and
of Statutes Limit
right
general damages
to recover
ing Damages
Defamation,
Recoverable
legislature
limit,
which the
seeking
(1960
§
ALR2d 277
supp).
& 1987
and as the service of notice or a conse-
adopt
We
the rationale that
quent retraction can
possible
have no
ef-
expressed
the Minnesota court
in Clement-
recovery
fect
damages,
of actual
son:
provision
it should be held that the
as to
Taking
itself,
the first
clause
this act
the service of notice has reference
construing
literally,
it would seem to
damages
a claim for
of the former class.
sustain defendant’s contention that in ev-
Clementson,
we conclude ences, voluntarily place in the himself the statute. ment under Further, controversy. present middle fame, sub did not achieve did have
he
gov
over
responsibility
stantial
or control
figure
Public
II.
[¶ 42]
affairs,
greater
and did not have
ernmental
judge
ruled
“was
The trial
[¶ 43]
regular governmental em
importance than a
have, or
as he did not
‘public
not a
official’
Rather,
in
Sparagon had limited
ployee.
have,
re-
public to
substantial
appear to the
injured patient and he
with the
volvement
over the conduct of
sponsibility for or control
involuntarily
pub
thrust
into unwanted
judge
further
governmental affairs.”
court on this
licity. We affirm the trial
invite
“position would not
Sparagon’s
ruled
issue.
person holding
scrutiny
and discussion
judge’s
rul-
it.” N.A.P. does not contest
Summary judgment
ques-
on
III.
[¶ 47]
ing.
privilege
tion of
that the facts
The trial
ruled
[¶ 48]
pub
is a
Whether a
qualified privilege
to a
entitled defendant
purposes
a libel action is a
figure
lic
20-11-5(3).
judge stated
under SDCL
trial court. Nelson v.
question of law for the
opinion,
in his
Ass’n., Inc.,
Dev.
507 N.W.2d at
Water
WEB
high
patients can be at
risk with
diabetic
suit, physician
purposes of a libel
697. For
By his own statement
their extremities.
public figure.
ordinarily not considered a
‘Thirty per-
Sparagon indicated that
Dr.
Communications,
Capital Cities
Park v.
have
people
Indian
down there
cent of the
902,
Inc.,
192,
A.D.2d
585 N.Y.S.2d
podiatric care.’
and no access to
diabetes
1022,
(1992),
appeal dismissed 80 N.Y.2d
Sparagon provides vital services
Dr.
815,
607 N.E.2d
and 81 N.Y.2d
N.Y.S.2d
Ridge Indian
persons living on the Pine
961. For
597 N.Y.S.2d
613 N.E.2d
diabetics,
Reservation,
rely
especially
who
example, physician
patient
who treats a
Therefore the
public
health medicine.
patient is
involvement with such
has limited
subject
podiatric
care on the reservation
CBS, Inc.,
figure.
v.
public
not a
Pesta
public importance to entitle
is of sufficient
(E.D.Mich.1988).
166, 169-70
F.Supp.
privilege
pub-
in
qualified
Defendant to
lishing the articles
based
Physicians
out
who hold themselves
provision
the common interest
“champions”
“pioneers” or
of new tech
to be
20-11-5(3).
affirmatively step
niques
who
outside
prece
Long established
practice
to attract
private realms of
their
Dakota that the
by holding press
dent exists
South
public
conferences
attention
Park,
relating to
apply communications
figures.
does not
may,
be
See
v.
physicians.
Rood
They may
public professional conduct
also be
585 N.Y.S.2d
(1909).
Dutcher,
70, 120
N.W. 772
they actively
vigorously place
23 S.D.
figures if
judge distinguished
opinion the trial
concern
themselves
controversies
Dutcher,
“plaintiff
stating
[in
by writing, lecturing,
ing public
Rood
health issues
only per
private physician was a
acting
experts
litigation
]
and hear Rood
as
him
be
employ
would
sons who desired
ings.
Exner v. American Medical As
See
relating to his
soc.,
in communications
Wash.App.
P.2d
868 interested
recipients of
(1974),
denied;
professional conduct. Here
v. Merrell
review
McBride
Pharmaceuticals,
have no choice
public health services would
800 F.2d
Dow &
(D.C.Cir.1986).
Un
also,
Bateman,
provide podiatric care.”
Tracy
on who would
A.
See
authority
fortunately,
judge cites no
J.D.,
Purposes
Figure” For
Who is “Public
*11
statement,
ject
copy
in
and we find none that
matter was a
of the articles
for this
authority
v.
recognized
would override the
of Rood
that Indian
which the VA Center
Dakota,
state,
a rural
Dutcher. South
people have diabetes and are without access
many
podiatric
areas that have no access to
podiatric
care and that
and the
Ridge.
in
care
contrast to Pine
Should
they
right
are “all
have
now.” The
Clinic
physicians and
access or lack of access of
remainder of
evidence to establish the
they
privately paid
publicly
whether
are
speculation,
common interest is
and such evi-
any
in the law?
funded make
difference
dence is not sufficient to establish a common
patients
physicians
and
in
facil-
Should
“Unsupported
interest.
conclusions and
rights
privileges
ities have fewer
and
than
speculative
genuine
statements do not raise
counterparts
private
in the
sector?
their
We
Paradigm
of fact.”
Mort. Fund
issue
Hotel
think not.
Co.,
Falls Hotel
Sioux
betics Pine the seriousness of the problem Ridge on Pine Reservation of dia- MILLER, C.J., AMUNDSON, release), (except press any betics for the J., concur. history problem about incidents at Pine Ridge respecting being diabetics treated SABERS, J., dissents. podiatrist thereby having lost an extrem- SRSTKA, Judge, 60] Circuit [¶ ity treatment, public as a result of the con- KONENKAMP, J., disqualified. treatment, public outcry cern about such or a against podiatrists. GILBERTSON, J., having 61] been [¶ member of the Court at the time this action controversy No existed participate. respect Spara- to the was submitted did not business which (Contrast Peterson, gon engaged. SABERS, (dissenting). Justice wherein the Court found agree majority opinion I with the apprehension there was of individuals in re sponse to a that failure to demand a retraction under recent waive of thefts and van dalism.) presented precludes punitive evidence to the SDCL 20-11-7 a claim for judge regarding damages.1 proper trial an But interest the sub- this was not de- improper precludes punitive damages only 1. An demand retraction under 20-11-7
137
Peterson,
aggrieved
(quoting
mand for retraction because the
ment statements Peterson)). Here, defamatory.” Sparagon, ag- Dr. The Peterson court con then grieved party, specify particularly cluded that the citizens of Mitchell did had a common, public apprehending statement was interest false statement. The false physician, application quali that Dr. was Lee’s criminals which led to Therefore, privilege. Sparagon merely not. Dr. fied Id. at 916. he was to inform defendant that he was not needed stated, Dr. a national treating physician but he did not. Dr. publication, Veterans Administration coy Sparagon’s responses were technical thirty percent people of the Indian on the camouflage compli- evasive and more than prob- reservation have diabetes and that foot Therefore, ance with 20-11-7. his then, accompany Clearly, lems diabetes. comply good failure to faith with SDCL Ridge residents of the Pine reservation had 20-11-7 defendant’s offer to correct “common, public interest” the issue of preclude false statements should his claim podiatrie diabetes care which entitled punitive damages. qualified privilege printing defendant to a Peterson, story. See 499 N.W.2d 916.2 I also dissent because defendant was clearly qualified privilege un- entitled facts entitle [¶ 66] These defendant to 20-11-5(3). der SDCL This was “a commu- 20-11-5(3). qualified privilege under SDCL nication, malice, person without interest- Therefore, matter this should be tried to the therein, ed one who is also [its readers] jury, instructions, proper quali on on based interested,” in on an Indian diabetes reserva- privilege genuine fied as there is a issue of 20-11-5(3). majority tion. SDCL Even the malice, i.e., material fact as to whether the opinion says, “[u]ndoubtedly, diabetes on knowledge false statement was made “with of Ridge great public Pine is of interest.” falsity disregard its or a reckless Press, Viking truth.” Janklow v. qualified This court a test for stated (S.D.1990) (citing Harte- Mitchell, City in Peterson v. Hanks, Communications, Connaugh Inc. (S.D.1993): N.W.2d 911 ton, U.S. S.Ct. determining An infallible test in whether a (1989)). L.Ed.2d 562 published partic- communication under the privileged
ular circumstances is or is not whether, true,
to ask it is a matter of public
proper interest in relation to that sought
with which
to associate it.
general
special damages.
"privileged
not affect
communication” did not include
does
newspaper
relating
professional
language
quoted
of Clementson as
in the
articles
physicians,
"only
per-
majority opinion
"general” damages
refers
but
conduct of
because
such
employ
are inter-
[the doctor]
sons as desire
our statute does not.
relating
profes-
ested in communications
to his
Id.,
sional conduct.”