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Plante v. Long

Supreme Court of Maine

September 7, 2017


          Argued: June 14, 2017

          Gene R. Libby, Esq., and Tyler J. Smith, Esq. (orally), Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellants Bruce Plante and Dennis Plante

          Jonathan W. Brogan, Esq. (orally), and Joshua D. Hadiaris, Esq., Norman, Hanson & DeTroy, LLC, Portland, for appellee Ronald P. Long


          GORMAN, J.

         [¶1] Bruce and Dennis Plante appeal from the entry of a summary judgment in the Superior Court (York County, Douglas, J.) in favor of Ronald P. Long on their defamation action. The court concluded that the Plantes failed to make the necessary prima facie showing that Long acted with actual malice. We affirm the judgment.

         I. BACKGROUND

         [¶2] The following facts are taken from the parties' statements of material fact and reflect the summary judgment record in the light most favorable to the plaintiffs as the "part[ies] against whom summary judgment was entered."[1] See Diviney v. Univ. of Me. Sys., 2017 ME 56, ¶ 14, 158 A.3d 5.

         [¶3] Bruce is the Assistant Fire Chief for the Town of Berwick. He also works as a delivery driver for Gagnon Propane and previously served on the Town's Board of Selectmen. Dennis is the Fire Chief for the Town of Berwick. Long is a resident of Berwick and has a history of publicly criticizing the Berwick Fire Department, including its leadership, and opposing proposed fire department projects. The plaintiffs have both conceded that they are public figures.[2]

         [¶4] On October 27, 2011, Long was jogging with his wife on Worster Road in Berwick. Bruce, who was driving a propane truck down that road, "pulled wide around" Long, who waved. Bruce perceived Long's wave and facial expression as harassing and was "upset." He pulled the truck to a stop about 150 feet from Long and, while "hanging on the edge of the truck" and raising his voice due to the distance between them, twice yelled to Long, "[H]ey, are you looking for me?" After Long replied that he was not looking for Bruce and that he had "just [been] waving, " Bruce responded, "[D]on't bother." Bruce got back in the truck and drove away. Although he had intended to "let Mr. Long know he wanted nothing to do with him, " Bruce had not intended to "instigate a fight."

         [¶5] The next day, Long sent an email to the chief and a captain of the Berwick Police Department alleging that Bruce was harassing him and recounting the events of the previous day. In the email, Long stated that Bruce had yelled, "Hey do you want some of this? Are you fucking looking for me?" and, "Hey I said do you want some of this? Are you looking for me?" Long stated that he had heard that Bruce had "tried to intimidate [several other people] by this very behavior, " and he asked the police to contact those people to "further [their] investigation." Long further stated that "[Bruce] is clearly mentally unstable and I fear for what he is capable of doing.... [He] is in a position to make me worry about the safety of my family and myself." The same day, copying Berwick's police chief and another individual, Long sent a second, very similar email to Bruce's employer at Gagnon Propane.

         [¶6] At some point, [3] Dennis drove behind Long in a vehicle with fire department insignia on it. There were initially two other vehicles between the parties' cars. Long turned down another road, pulled over, pulled back onto the road after Dennis passed him, and followed Dennis.

         [¶7] On April 24, 2012, Long sent an email to the Berwick Board of Selectmen and others, stating in part that the Plantes had been following and harassing people. On May 23, 2012, Long sent an email to the Berwick police chief and copied another individual. The email stated in part that Bruce and Dennis had "lied, followed, intimidated, and harassed people to get 'Their Cause' pushed through."

         [¶8] In June of 2013, the Plantes filed a complaint against Long containing eight counts of libel and one count of punitive damages. Over the course of nearly three years, the parties engaged in a protracted discovery process and motion practice. Although they failed to reach complete agreement through alternative dispute resolution, they did stipulate to the dismissal of Counts 1 and 7 of the complaint. In May of 2016, Long filed a motion for summary judgment on the remaining seven counts, which the court granted on November 7, 2016, after a nontestimonial hearing. The Plantes timely appealed.


         [¶9] This appeal requires us to determine, viewing the facts in the light most favorable to the Plantes as the nonmoving parties, whether any genuine issue of material fact exists and whether Long is entitled to judgment as a matter of law. Diviney, 2017 ME 56, ¶ 14, 158 A.3d 5; see M.R. Civ. P. 56(c). "When the defendant is the moving party, [he] must establish that there is no genuine dispute of fact and that the undisputed facts would entitle [him] to judgment as a matter of law. It then becomes the plaintiff's burden to make out a prima facie case and demonstrate that there are disputed facts." Diviney, 2017 ME 56, ¶ 14, 158 A.3d 5 (alterations omitted) (citation omitted) (quotation marks omitted). We will assume, for purposes of this opinion, that the statements made by Long were false.[4] The issue to be decided, therefore, is whether the Plantes have made a prima facie showing of actual malice.[5] See Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (setting out the elements of defamation).

         [¶10] The Plantes are public figures and, as we have explained,

[d]iscussion of public officials and public figures on matters of public concern, the U.S. Supreme Court has declared, deserves special favor in a democratic society, and thus such discussion is subject to a conditional privilege-the "First Amendment privilege"-that can be overcome only by clear and convincing evidence of [actual malice, i.e., ] knowledge or disregard of falsity.

Id. at 69 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964)). Thus, in order to survive summary judgment, the Plantes must present some evidence that at least one of Long's false statements was made with "'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Harte-Hanks Commc'ns, Inc. v. Connaughton, 491 U.S. 657, 659 (1989) (quoting Sullivan, 376 U.S. at 279-80). In other words, they must produce evidence that could demonstrate that it is highly probable that, at the time he sent the allegedly defamatory emails, Long in fact knew that his statements were false or that he acted "with [a] high degree of awareness of their probable falsity." Michaud v. Town of Livermore Falls, 381A.2d 1110, 1116 (Me. 1978) (quotation marks omitted); see Taylor v. Comm'r of Mental Health & Mental Retardation, 481 A.2d 139, 154 (Me. 1984) (explaining that the "clear and convincing" standard of proof, which protects "important public interest[s], " requires a plaintiff to prove her allegations "to a high probability").

         [¶11] In response to Long's motion for summary judgment, the Plantes offered evidence contradicting Long's accounts of the events in question and demonstrating a contentious history between the parties. See supra ¶¶ 4-7. If believed by a trier of fact, the same evidence that showed Long's statements to be false and the relationship between Long and the Plantes to be contentious could also give rise to an inference that Long bore the Plantes ill will. Contrary to the Plantes' assertions, however, the evidence of falsity, even combined with the inference of ill will, would not be sufficient to support a clear and convincing determination of actual malice.

         [¶12] The element of objective falsity is distinct from that of actual malice. At trial, a fact-finder must be presented with sufficient evidence to allow her to conclude that the defendant '"in fact entertained serious doubts as to the truth of his publication'" regardless "of the assumed objective falsity of the remarks." Michaud, 381 A.2d at 1114-15 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). We have consistently refused to conclude that a fact-finder may infer that a defendant was "consciously untruthful" from evidence that her accusations were in fact false even if that evidence coincides with indicia of the defendant's ill will towards the plaintiff, e.g., that the defendant destroyed or discarded her written records of the events in question. Lester, 596 A.2d at 71-72 (concluding that the plaintiffs proposed inference of actual malice was "unsupported speculation" and inadequate to survive a defendant's motion for summary judgment); see Michaud, 381 A.2d at 1115-16. Rather, we have been clear that "[e]vidence that some of [the defendant's] factual premises were objectively false, or even that no reasonable person could have believed them to be true, does not show that she knew or disregarded their falsity." Lester, 596 A.2d at 71. Permitting a fact-finder to draw such an inference would effectively merge the elements of falsity and actual malice, thereby reducing the heightened burden assumed by public figure plaintiffs in defamation actions and diminishing the "breathing space" for protected speech that Sullivan and its progeny require. Harte-Hanks, 491 U.S. at 686 (quotation marks omitted); see Lester, 596 A.2d at 69 (citing Sullivan, 376 U.S. at 279-80).

         [¶13] Nonetheless, the Plantes argue that we "reach[ed] too far" in Lester and that we should merge the elements of falsity and malice in cases involving "personal knowledge." Their argument ultimately relies on language the United States Supreme Court included in a decision in which it reversed a libel judgment. See Time, Inc. v. Pape,401 U.S. 279, 290 (1971) (concluding that a magazine article summarizing a report by the United States Commission on Civil Rights that discussed police brutality did not demonstrate actual malice). In explaining its holding, the Court determined that the Court of Appeals had erred in concluding that "'malice' in the sense of an 'intent to inflict harm through falsehood' . . . might reasonably be inferred from the very act of deliberate omission, and the issue of malice was consequently one for the jury." Id. at 285. The Court went on to state, however, ...

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