Cerny-Deahl v. Launderville et al
Filing
34
ORDER granting in part and denying in part 22 Motion for Summary Judgment. The Motion is granted with respect to Cerny-Deahl's violation of due process based on a property interest claim in Count I. The Motion is granted with respect to Cerny -Deahl's violation of due process based on a liberty interest claim in Count II. The Motion is denied with respect to Cerny-Deahl's defamation claim in Count III. The Motion is denied with respect to Cerny-Deahl's claim for punitive damages. Signed by Chief Judge Linda R Reade on 7/21/2015. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
SANDRA CERNY-DEAHL,
Plaintiff,
No. 14-CV-2010-LRR
vs.
ORDER
KEVIN LAUNDERVILLE and CITY
OF HUDSON, IOWA,
Defendants.
TABLE OF CONTENTS
I.
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II.
PROCEDURAL HISTORY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III.
SUBJECT MATTER JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 2
IV.
SUMMARY JUDGMENT STANDARD. . . . . . . . . . . . . . . . . . . . . . . . . 3
V.
RESISTANCE MATERIALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
VI.
RELEVANT FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . 4
A.
B.
VII.
Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Overview of the Dispute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ANALYSIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A.
B.
C.
D.
Due Process—Property Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Due Process—Liberty Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 10
Libel and Slander. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.
Truth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.
Opinion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.
Qualified privilege.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Punitive Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
VIII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
I. INTRODUCTION
The matter before the court is Defendants Kevin Launderville and City of Hudson,
Iowa’s (“the City”) (collectively, “Defendants”) “Motion for Summary Judgment”
(“Motion”) (docket no. 22).
II. PROCEDURAL HISTORY
On February 17, 2014, Plaintiff Sandra Cerny-Deahl filed a Petition in the Iowa
District Court for Black Hawk County (docket no. 3), alleging violations of her state and
federal constitutional rights, libel and slander.
On February 26, 2014, Defendants
removed the case to this court. See Notice of Removal (docket no. 2). On March 21,
2014, Defendants filed an Answer (docket no. 5). On July 22, 2014, Cerny-Deahl filed
an Amended Complaint (“Complaint”) (docket no. 8-1). In the Complaint, Cerny-Deahl
alleges violations of due process based on property interest (Count I) against the City,
based on liberty interest (Count II) against Defendants and also alleges libel and slander
(Count III) against Launderville. On November 7, 2014, Defendants filed an Amended
Answer (docket 12). On April 16, 2015, Defendants filed the Motion. On May 11, 2015,
Cerny-Deahl filed a Resistance (docket no. 25). On May 21, 2015, Defendants filed a
Reply (docket no. 21). The Motion is fully submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has federal question jurisdiction over the claims asserted in Counts I and
II. See 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.”). The court
also has supplemental jurisdiction over the claims asserted in Count III. See 28 U.S.C.
§ 1367 (“Except as [otherwise] provided . . . , in any civil action of which the district
courts have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original
2
jurisdiction that they form part of the same case or controversy under Article III of the
United States Constitution.”).
IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A dispute is genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact is material if its resolution affects
the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d 1068, 1074 (8th Cir.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)), cert.
denied, 132 S. Ct. 1144 (2012). “[S]elf-serving allegations and denials are insufficient to
create a genuine issue of material fact.” Anuforo v. Comm’r, 614 F.3d 799, 807 (8th Cir.
2010).
“To survive a motion for summary judgment, the nonmoving party must
substantiate [its] allegations with sufficient probative evidence [that] would permit a finding
in [its] favor based on more than mere speculation, conjecture, or fantasy.” Barber v. C1
Truck Driver Training, LLC, 656 F.3d 782, 801 (8th Cir. 2011) (second alteration in
original) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th Cir. 2003))
(internal quotation marks omitted). The court must view the record in the light most
favorable to the non-moving party and afford it all reasonable inferences. See Schmidt v.
Des Moines Pub. Sch., 655 F.3d 811, 819 (8th Cir. 2011). The non-moving party “has
the obligation to come forward with specific facts showing that there is a genuine issue for
trial.” B.M. ex rel. Miller v. S. Callaway R-II Sch. Dist., 732 F.3d 882, 886 (8th Cir.
2013) (quoting Atkinson v. City of Mountain View, 709 F.3d 1201, 1207 (8th Cir. 2013))
(internal quotation marks omitted). “A complete failure by the non-moving party ‘to make
a showing sufficient to establish the existence of an element essential to that party’s case
3
. . . necessarily renders all other facts immaterial.’” Id. (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)) (alteration in original).
V. RESISTANCE MATERIALS
Defendants argue that the materials Cerny-Deahl filed in support of the Resistance
violate the court’s Local Rules and are therefore improper. Specifically, Defendants argue
that Cerny-Deahl violated the court’s local rules on summary judgment when responding
to Defendant’s Statement of Material Facts (docket no. 22-2).
First, the court finds that Cerny-Deahl violated Local Rule 56.b.2 by failing to
submit “[a] response to the statement of material facts in which the resisting party
expressly admits, denies, or qualifies each of the moving party’s numbered statements of
fact, filed as an electronic attachment to the brief under the same docket entry.” L.R.
56.b.2.
“The failure to respond, with appropriate citations to the appendix, to an
individual statement of material fact constitutes an admission of that fact.” L.R. 56.b.
Accordingly, the court shall deem Defendants’ Statement of Material Facts admitted in
considering this Motion.
Furthermore, the court finds that Cerny-Deahl violated Local Rule 56.b by
submitting a statement of additional material facts that is not numbered separately. See
L.R. 56.b (“Each individual statement of additional material fact must be concise,
numbered separately, and supported by references to those specific pages, paragraphs, or
parts of the pleadings, depositions, answers to interrogatories, admissions, exhibits, and
affidavits that support the statement, with citations to the appendix containing that part of
the record.”). Nevertheless, the court will consider Cerny-Deahl’s Statement of Material
Facts despite her failure to comply with the Local Rules.
VI. RELEVANT FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to Cerny-Deahl and affording her
all reasonable inferences, the uncontested material facts are as follows.
4
A. Parties
Cerny-Deahl is a resident of Iowa. She was employed as the city clerk for the City
of Hudson, Iowa during the relevant time period until April 22, 2013. Launderville was
the mayor of the City during the relevant time period and is a resident of Iowa. The City
is a municipal corporation of the state of Iowa and is located in Black Hawk County.
Cerny-Deahl alleges that Launderville and the City were acting under color of state law
at all times relevant to the instant action.
B. Overview of the Dispute
On January 14, 2013, the city council voted on whether to reappoint Cerny-Deahl
as the city clerk for the City. The vote failed without any formal discussion and CernyDeahl was not reappointed. However, Cerny-Deahl continued to work for the City as a
“holdover clerk.” On February 25, 2013, the city council passed Resolution No. 1588,
which approved the job description for the position of city clerk and identified a salary
range of $35,000 to $55,000.1 The Resolution stated, in part:
This job description and salary range are identified to correlate
to the hiring of a City Clerk for the 2013 term. It is clarified
that the actual salary for the Clerk for the 2013 term, when
appointed, would have to be approved at the time of the
appointment. This resolution would not affect the 2012 term
and holdover.
Defendant’s Appendix (“App’x”) (docket no. 22-3) at 24. Also on February 25, 2013, the
city council reappointed Cerny-Deahl as the city clerk following discussion by city council
members. The resolution passed by the city council states:
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the
Hudson City Council approve Sandie Deahl to be re-appointed
as City Clerk.
1
Prior to Resolution No. 1588, Cerny-Deahl was making $59,000 as the city clerk.
Complaint ¶ 9.
5
BE IT FURTHER RESOLVED, that the Mayor of the City of
Hudson is authorized and directed to execute the documents
required to effectuate this Resolution.
Resolution No.1589, Defendant’s App’x at 13. Following the February 25, 2013 city
council meeting, Cerny-Deahl prepared a resolution for Launderville to sign.
The
resolution states:
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the
Hudson City Council approve Sandie Deahl to be re-appointed
as City Clerk. Per Mayor Launderville: Effective July 1, 2013
wage reduction to $55,000 exempt salary as identified with
fiscal year 2013 budget.
BE IT FURTHER RESOLVED, that the Mayor of the City of
Hudson is authorized and directed to execute the documents
required to effectuate this Resolution.
Resolution No.1589, Defendant’s App’x at 13.
The dispute in this case arose over the difference between the resolution passed at
the city council meeting and the resolution prepared by Cerny-Deahl and signed by
Launderville. Following her re-appointment, Cerny-Deahl continued to receive a salary
of $59,000, pursuant to the resolution prepared by Cerny-Deahl and signed by
Launderville. On March 26, 2013, Cerny-Deahl sent an e-mail to Launderville to confirm
that the City Clerk salary change would become effective on July 1, 2013. Following this
e-mail, Launderville called the attorney for the City. Launderville stated that he did not
read the resolution that Cerny-Deahl prepared before signing it and, therefore, did not
realize the language in the resolution he signed differed from the language passed at the
February 25, 2013 city council meeting. The city council held a special council meeting
on April 11, 2013 after learning that Cerny-Deahl was still receiving a salary of $59,000.
At the April 11, 2013 meeting, the city council discussed Cerny-Deahl’s salary change,
6
the date it was (or was not) to become effective, and the possibility of termination. At that
meeting, Launderville stated:
When I signed that, there has to be a trust factor, and when I
signed it I did not read through it because I assumed it was the
one that was in the packet that, for that council meeting, which
it did not have a July 1 date in it. So, after I was made aware
of it, that’s what it stated, then I got a hold of [the city
attorney]. Because I didn’t feel that it exactly, what I read in
the minutes is not what it said. . . .
I just have a trust issue here. I will be the first to admit that
I am a part-time mayor, and I come in and I sign a lot of
papers and I have to trust that person that they’re going to put
on there what I think was on there and if there’s a change that
they need to talk to me about it prior. I could make this a fulltime job, and probably work 50 hours a week if I sat and read
everything, but I don’t think that a $6,000 a year salary that’s
going to work. So, I have a trust issue right now and a lack of
confidence. I feel a little betrayed to be honest with you. I
feel like I’m the victim here. Uh, so, that’s, that’s, uh, not a
good working relationship. It’s difficult. It’s very difficult for
me. Um, so that’s kind of where I’m at. The reason this got
put on is because if she did not accept this, this appointment at
the new salary I felt that we should then take the next move,
which would have been to terminate right away. Just so you
know what’s on the agenda. It’s a three step process basically.
So. But trust is really important.
April 11, 2013 City Council Meeting Video, Defendant’s App’x at 48. The city council
then referred the matter to its personnel committee. On April 15, 2013, the personnel
committee met and decided to recommend to the city council that Cerny-Deahl be
terminated. The city council voted to remove Cerny-Deahl from her position on April 22,
2013. Pursuant to Iowa law, Cerny-Deahl was provided with written notice of the decision
and an opportunity to request a hearing. The removal decision is contained in Resolution
No. 1606 and an attached written order. See Resolution No. 1606, Defendants’ App’x at
7
36-38. Following her removal, Cerny-Deahl requested a hearing pursuant to Iowa Code
§ 372.15. The hearing was held on July 12, 2013. At the hearing, counsel for CernyDeahl and Doug Coonrad, Cerny-Deahl’s attorney during the salary change discussions,
spoke on behalf of Cerny-Deahl. At the hearing, the city council approved Resolution No.
1665, confirming the removal of Cerny-Deahl from the position of city clerk.
VII. ANALYSIS
Cerny-Deahl alleges that the City violated her federal and state constitutional rights
by depriving her of property without due process of law and that Defendants violated her
federal and state constitutional rights by violating her liberty interest in her good name.2
She also alleges a libel and slander claim. Defendants argue that all claims should be
dismissed. Defendants also argue that the court should dismiss the punitive damages
claim.
“Section 1983 creates a cause of action against ‘every person, who under color of
any statute, ordinance, regulation, custom, or usage’ subjects any person to deprivation
of immunities secured by the Constitution or federal laws.” Sanders v. Sears, Roebuck
& Co., 984 F.2d 972, 975 (8th Cir. 1993) (quoting 42 U.S.C. § 1983). “To state a claim
under [§] 1983, a plaintiff must set forth facts that allege an action performed under color
of state law that resulted in a constitutional injury.” Springdale Educ. Ass’n v. Springdale
Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998). “[T]he essential elements of § 1983
2
Article I, § 9 of the Iowa Constitution provides that “no person shall be deprived
of life, liberty, or property, without due process of law.” Iowa Const. art. I, § 9. This
provision “mirrors the provisions of [the Fifth and Fourteenth Amendment to the] United
States Constitution. Accordingly, [the Iowa Supreme Court] interpret[s] both the Iowa and
federal Due Process Clauses in the same fashion, including approaching due process
questions under a rubric differentiating between ‘procedural’ and ‘substantive’ due
process.” Master Builders of Iowa, Inc. v. Polk Cnty., 653 N.W.2d 382, 397 (Iowa
2002). Thus, the court’s analysis, while applying federal law, applies equally to CernyDeahl’s state constitutional claims.
8
liability [are] (1) violation of a constitutional right, (2) committed by a state actor, (3) who
acted with the requisite culpability and causation to violate the constitutional right.” Shrum
ex rel. Kelly v. Kluck, 249 F.3d 773, 777 (8th Cir. 2001).
A. Due Process—Property Interest
Defendants argue that the court should grant the Motion because Cerny-Deahl “did
not have a property interest in her continued employment” and “because there was no
municipal policy or custom that caused a constitutional tort.” Motion at 1. Cerny-Deahl
argues that her due process rights were violated because she did have a property interest
in her continued employment and the city council’s hearing was unfair.
“In analyzing a claim that the deprivation of property violates either procedural or
substantive due process rights, a court must first consider whether the claimant has a
protected property interest to which the Fourteenth Amendment’s due process protection
applies.” Ellis v. City of Yankton, S.D., 69 F.3d 915, 917 (8th Cir. 1995). “Protected
property interests are created by state law, but federal law determines whether the interest
rises to the level of a constitutionally-protected property interest.” Id. “Property interests
are not created by the Constitution, ‘they are created and their dimensions are defined by
existing rules of understandings that stem from an independent source such as state law
. . . .’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (quoting Bd. of
Regents v. Roth, 408 U.S. 564, 576 (U.S. 1972)). “An employee must show a property
interest in continued employment to assert a § 1983 claim for violation of constitutional
due process.” Couch v. Wilkinson, 939 F.2d 673, 674 (8th Cir. 1991).
Cerny-Deahl alleges that she has a property interest in continued employment
pursuant to Iowa Code § 372.15, which states:
Except as otherwise provided by state or city law, all persons
appointed to city office may be removed by the officer or body
making the appointment, but every such removal shall be by
written order. The order shall give the reasons, be filed in the
9
office of the city clerk, and a copy shall be sent by certified
mail to the person removed who, upon request filed with the
clerk within thirty days of the date of mailing the copy, shall
be granted a public hearing before the council on all issues
connected with the removal. The hearing shall be held within
thirty days of the date the request is filed, unless the person
removed requests a later date.
Iowa Code § 372.15. The Iowa Supreme Court stated that Iowa Code § 372.15 does not
grant employees “a property interest in continued employment under state law.” Bennett
v. City of Redfield, 446 N.W.2d 467, 472 (Iowa 1989). Cerny-Deahl argues that Bennett
does not address her right to a fair post-termination hearing. However, the first step in a
procedural due process challenge based on a property interest is to establish whether a
property interest exists.
See Ellis, 69 F.3d at 917.
Here, Cerny-Deahl has not
demonstrated the existence of a constitutionally protected property interest because she has
no property interest in continued employment. Therefore, her claim necessarily fails as
a matter of law.3 Accordingly, the court shall grant the Motion with respect to Count I,
violation of due process based on a property interest.
B. Due Process—Liberty Interest
Defendants argue that the court should dismiss Cerny-Deahl’s due process claim
based on deprivation of a liberty interest for the following reasons: (1) Cerny-Deahl was
3
Defendants also argue that the court should grant the Motion “because there was
no municipal policy or custom that caused a constitutional tort.” Motion at 1. “For there
to be section 1983 liability, ‘there must first be a violation of the plaintiff’s constitutional
rights.’” Avalos v. City of Glenwood, 382 F.3d 792, 802 (8th Cir. 2004) (quoting Shrum
ex rel. Kelly v. Kluck, 249 F.3d 773, 777 (8th Cir. 2001)). Here, Cerny-Deahl failed to
demonstrate a constitutional violation. Therefore, the court need not examine the issue of
the City’s liability based on a municipal policy or custom. See McDonald v. City of Saint
Paul, 679 F.3d 698,704 (8th Cir. 2012) (stating that the possession of a “property interest
is a condition precedent to the government’s obligation to provide due process of law, and
where no such interest exists, there can be no due process violation”).
10
provided with a name-clearing hearing; (2) “there was no municipal policy or custom that
caused a constitutional tort”; and (3) Cerny-Deahl sued Launderville only in his official
capacity and he is entitled to qualified immunity. Motion at 1-2. Cerny-Deahl argues that
because her liberty interest was implicated by Defendants’ conduct, the court should deny
the Motion. Brief in Support of the Resistance (docket no. 25-1) at 11.
“An at-will public employee generally does not have a protected liberty interest in
continued employment which would obligate a government employer to provide a hearing
in connection with the employee’s discharge.” Hammer v. City of Osage Beach, Mo., 318
F.3d 832, 839 (8th Cir. 2003).
[A] government employee is entitled to procedural due process
. . . when [she] has been deprived of a constitutionally
protected . . . liberty interest. An employee’s liberty interests
are implicated where the employer levels accusations at the
employee that are so damaging as to make it difficult or
impossible for the employee to escape the stigma of those
charges.
Winskowski v. City of Stephen, 442 F.3d 1107, 1109-10 (8th Cir. 2006) (quoting Winegar
v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 900 (8th Cir. 1994)) (second and
fourth alterations in original) (quotation marks omitted). “Where a government employee
has been sufficiently stigmatized, the employee’s procedural due process rights are
vindicated by a ‘name-clearing hearing at a meaningful time’ during which the employee
can respond to the employer’s accusations.” Id. at 1110 (quoting Schleck v. Ramsey Cnty.,
939 F.2d 638, 642 (8th Cir. 1991)).
A government employee’s liberty interest is
implicated “when he or she is fired based on allegations of dishonesty, immorality, or
illegality.” Hammer, 318 F.3d at 839.
To establish the deprivation of a liberty interest, a public
employee must make a three-part showing: (1) that the public
employer’s reasons for the discharge stigmatized the
employee, seriously damaging his or her reputation or by
11
foreclosing other employment opportunities; (2) that the
employer made the reasons for the discharge public; and (3)
that the employee denied the charges that led to the discharge.
Where this showing has been made, under the Constitution’s
procedural due process protections, the employee must be
provided with adequate notice and an opportunity to dispute
the charges in a “name-clearing” hearing.
Id. at 839-40 (internal citations omitted). A proper name-clearing hearing requires only
“that the aggrieved party be offered a chance to refute the charges against him or her.”
Id. at 840; see also Codd v. Velger, 429 U.S. 624, 627 (1977) (stating that the sole
purpose of a “hearing required where a nontenured employee has been stigmatized in the
course of a decision to terminate his employment is solely ‘to provide the person an
opportunity to clear his name’”).
For the purposes of the Motion, the court will assume that Cerny-Deahl’s liberty
interest was implicated. That is, that Defendants’ reasons for discharge stigmatized her
publicly and she denies such reasons. Cerny-Deahl argues that the court should deny the
Motion with respect to Count II because “[a] genuine issue of material fact exists as to the
fairness of the post-termination hearing.” Brief in Support of the Resistance at 9. CernyDeahl argues that “there was a predisposition by the City Council to remove [CernyDeahl] prior to her post-termination hearing such that the City Council could not conduct
a fair hearing” and that the hearing itself was unfair because Cerny-Deahl “was denied the
opportunity to question Launderville.” Id. Defendants argue that the purpose of the
“hearing is to provide the person the opportunity to clear her name, and all that is required
is that the aggrieved party be offered a chance to refute the charges against her.” Reply
at 4.
The court agrees with Defendants. Cerny-Deahl was provided with a hearing and
her attorney presented evidence on her behalf. While it is true that Launderville did not
submit to questioning by Cerny-Deahl’s counsel, such cross-examination is not required
12
for a name-clearing hearing to pass constitutional muster. See Hammer, 318 F.3d at 841
(finding a name-clearing hearing was sufficient when the plaintiff “was given unrestricted
time to speak at the hearing, and his attorney was also allowed to speak on his behalf”).
Therefore, as a matter of law, Cerny-Deahl cannot demonstrate a violation of her liberty
interest. Accordingly, the court shall grant the Motion with respect to Count II.
C. Libel and Slander
“The law of defamation is composed of the twin torts of libel and slander.”
Barreca v. Nickolas, 683 N.W.2d 111, 116 (Iowa 2004). “The gist of an action for libel
or slander is the publication of written or oral statements which tend to injure a person’s
reputation and good name.” Id. (quoting Lara v. Thomas, 512 N.W.2d 777, 785 (Iowa
1994)) (internal quotation marks omitted). “Libel involves written statements, while
slander involves oral statements.” Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004)
(citation omitted). Cerny-Deahl has alleged both libel and slander in the Complaint.
Under Iowa law, “[t]he law of defamation embodies the public policy that
individuals should be free to enjoy their reputation unimpaired by false and defamatory
attacks. An action for defamation or slander is based upon a violation of this right.” Id.
at 174 (quoting Schlegel v. Ottumwa Courier, 484 N.W.2d 217, 221 (Iowa 1998)). “To
establish a prima facie case of [defamation], the plaintiff must show the defendant: ‘(1)
published a statement that (2) was defamatory (3) of and concerning the plaintiff, and (4)
resulted in injury to the plaintiff.’” Id. at 175 (quoting Johnson v. Nickerson, 542 N.W.2d
506, 510 (Iowa 1996)); see also Taggart v. Drake Univ., 549 N.W.2d 796, 802 (Iowa
1996). Libel is defined as “‘malicious publication, expressed either in printing or in
writing, . . . tending to injure the reputation of another person or to expose [the person]
to public hatred, contempt, or ridicule or to injure [the person] in the maintenance of [the
person’s] business.’” Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108, 115 (Iowa
1984) (alterations in original) (quoting Plendl v. Beuttler, 111 N.W.2d 669, 670-71 (Iowa
13
1961)). “Slander generally consists of the oral publication of defamatory matter.” Lara
v. Thomas, 512 N.W.2d 777, 785 (Iowa 1994).
Cerny-Deahl alleges that the statements made by Defendants falsely accuse CernyDeahl “of acting dishonestly for her own financial benefit.” Complaint at 7. The
statement at issue in the libel claim appears to be the written order accompanying
Resolution No. 1606, removing Cerny-Deahl from her position as city clerk.
Defendants’ App’x at 37-38. The written order states, in relevant part:
The duly elected and acting City Council of Hudson, Iowa,
pursuant to Hudson City Ordinance 1.1-0210 and Section
372.15, Code of Iowa, does hereby order the removal of Ms.
Sandie Deahl as City Clerk of the City of Hudson, Iowa. The
Council hereby notifies Ms. Sandie Deahl that her removal
from the office of the City Clerk of the City of Hudson, Iowa
is being made for the following reasons:
A.
Prepared Inaccurate Resolution Resulting in
Her Financial Benefit. Sandie Deahl prepared and
presented to the Mayor a Resolution #1589 which
contained language neither discussed nor approved by
the City Council and which, if not corrected, would
have resulted in her financial benefit to the financial
detriment to the City of Hudson, Iowa,
B.
Loss of Trust and Confidence: Mayor
Launderville and the City Council of the City of
Hudson, Iowa no longer have trust and confidence in
Sandie Deahl as City Clerk to execute the Council’s
decisions and to properly administer the affairs of the
City.
....
Actions Inconsistent with Duties as Chief Financial
Officer: As City Clerk, Sandie Deahl is the chief financial
officer of the City of Hudson, Iowa and the Mayor, Council
and residents of the City of Hudson, Iowa must have every
confidence that she will properly administer the funds of the
14
See
City as directed by the City Council, and the preparation and
presentation of Resolution #1589 in which she included
language for her financial benefit has resulted in a lack of such
confidence by the City Council.
Prepared and Maintained Inaccurate City Records:
As City Clerk, Sandie Deahl is responsible for maintaining a
record of city business which accurately reflects the actions of
the City Council of the City of Hudson, Iowa and the
preparation and presentation of Resolution #1589 resulted in
making a part of the city records and resolution which did not
accurately reflect the actions of the City Council of the City of
Hudson, Iowa.
Written Order, Defendants’ App’x at 37-38.
Cerny-Deahl alleges that the following statements constituted slander:
Launderville’s statement that Cerny-Deahl intentionally misled him into signing Resolution
No. 1589, that she “prepared an inaccurate resolution resulting in her financial benefit”
and had therefore lost the “‘trust and confidence’ of the mayor and the city council.”
Complaint ¶ 14. Cerny-Deahl alleges that based upon Launderville’s false statements, the
City terminated her from her position as city clerk. Id. ¶ 15.
Defendants argue that the court should grant the Motion with respect to CernyDeahl’s libel and slander claims because the statements at issue “were true and/or the
opinion of the mayor and city counsel,” and the statements are entitled to qualified
privilege. Brief in Support of the Motion (docket no. 22-1) at 12-21. Cerny-Deahl argues
that the court should deny the Motion because “Defendants cannot establish a lack of
genuine issues of material fact as to the truthfulness of the defamatory comments or that
the statements were mere opinion” and because “qualified immunity does not exist for
statements not made in good faith.” Brief in Support of the Resistance at 11-14. The
court will address each defense in turn.
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1.
Truth
Substantial truth is an absolute defense to defamation. See Lundell Mfg. Co., Inc.
v. Am. Broadcasting Cos, Inc., 98 F.3d 351, 359 (8th Cir. 1996). To be entitled to the
defense of substantial truth, the defendant must establish that the “gist or sting” of the
publication in question is substantially true. Id. at 359-60 (quoting Jones v. Palmer
Commc’ns, Inc., 440 N.W.2d 884, 891 (Iowa 1989) (disapproved of on other grounds by
Schlegel, 585 N.W.2d 217)) (internal quotation marks omitted). “If the underlying facts
as to the gist or sting are undisputed, substantial truth may be determined as a matter of
law.” Id. at 360. “The court determines the gist or sting by look[ing] at the highlight of
the [publication], the pertinent angle of it.” Doe v. Hagar, 765 F.3d 855, 863 (8th Cir.
2014) (quoting Behr v. Meredith Corp., 414 N.W.2d 339, 342 (Iowa 1987)) (internal
quotation marks omitted) (alterations in original).
Here, the gist or sting of the statements is that Cerny-Deahl acted improperly and
to her own financial benefit, thereby violating the duties of her position as city clerk.
When considering the evidence in the light most favorable to Cerny-Deahl, the evidence
is sufficient to create a genuine issue of material fact as to whether Defendants’ statements
are true. Defendants claim that the statements are true, while Cerny-Deahl claims they are
not true. The question of substantial truth is a question for the jury. See Hagar, 765 F.3d
at 863 (“[W]hen the underlying facts as to the gist or sting of the defamatory charge are
in dispute, the question of substantial truth is one for the jury.” (quoting Behr, 414
N.W.2d at 342)). Accordingly, the court shall deny the Motion with respect to the defense
of truth.
2.
Opinion
“Opinion is absolutely protected under the first amendment.” Yates v. Iowa W.
Racing Ass’n, 721 N.W.2d 762, 769 (Iowa 2006) (quoting Jones, 440 N.W.2d at 891).
Under Iowa law, three factors determine whether a statement is fact or opinion: (1) “[t]he
16
precision and specificity of the statement”; (2) “[t]he verifiability of the statement;” and
(3) “[t]he literary context in which the statement was made.” Kiesau, 686 N.W.2d at
177. “The third factor, literary context, includes the ‘social context,’ which focuses on
the category of the publication, its style and intended audience, and the ‘political context’
in which the statement was made.” Id.
[T]he framework of analysis . . . is whether the alleged
defamatory statement can reasonably be interpreted as stating
actual facts and whether those facts are capable of being
proven true or false. Under this analysis, ‘statements of
opinion can be actionable if they imply a provable false fact,
or rely upon stated facts that are provably false.’
Yates, 721 N.W.2d at 771 (quoting Moldea v. New York Times Co., 22 F.3d 310, 313
(D.C. Cir. 1994)). “The statement that the plaintiff must prove false is not the literal
wording of the statement but what a reasonable reader or listener would have understood
the author to have said.” Id. Furthermore, “[b]ecause the degree to which alleged
defamatory statements have real factual content can vary greatly, courts should analyze the
totality of the circumstances in which such statements are made to decide whether they
merit the absolute First Amendment protection enjoyed by opinion.” Craig v. City of
Cedar Rapids, Iowa, 826 N.W.2d 516, 2012 WL 6193862, at *11 (Iowa Ct. App. Dec.
12, 2012) (unpublished table opinion).
Cerny-Deahl states that “Launderville public[]ly stated that [Cerny-Deahl] had
intentionally misled him into signing Resolution [No.] 1589 and asserted that she had
‘prepared an inaccurate resolution resulting in her financial benefit’ and accordingly
[Cerny-Deahl] had lost the ‘trust and confidence’ of the mayor and the city council.”
Complaint ¶ 14. In the Motion, Defendants argue that the court should find, as a matter
of law, that the following statements constitute protected opinion: (1) the written notice of
removal contained in Resolution No. 1589 and (2) Launderville’s statement at the April
11, 2013 city council meeting. Launderville’s statement is as follows:
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When I signed [the resolution], there has to be a trust factor,
and when I signed it I did not read through it because I
assumed it was the one that was in the packet that, for that
council meeting, which it did not have a July 1 date in it. So,
after I was made aware of it, that’s what it stated, then I got a
hold of [the city attorney]. Because I didn’t feel that it
exactly, what I read in the minutes is not what it said. . . . I
just have a trust issue here. I will be the first to admit that I
am a part-time mayor, and I come in and I sign a lot of papers
and I have to trust that person that they’re going to put on
there what I think was on there and if there’s a change that
they need to talk to me about it prior. I could make this a fulltime job, and probably work 50 hours a week if I sat and read
everything, but I don’t think that a $6,000 a year salary that’s
going to work. So, I have a trust issue right now and a lack of
confidence. I feel a little betrayed to be honest with you. I
feel like I’m the victim here. Uh, so, that’s, that’s, uh, not a
good working relationship. It’s difficult. It’s very difficult for
me. Um, so that’s kind of where I’m at. The reason this got
put on is because if she did not accept this, this appointment at
the new salary I felt that we should then take the next move,
which would have been to terminate right away. Just so you
know what’s on the agenda. It’s a three step process basically.
So. But trust is really important.
April 11, 2013 City Council Meeting Video, Ex. R. In the Resistance, Cerny-Deahl does
not argue that there are any other defamatory statements aside from the statements
identified by Defendants. See Brief in Support of the Resistance at 11-13.
The court finds that Launderville’s statement constitutes protected opinion. His
statements that he has a “trust issue” with respect to Cerny-Deahl do not contain actual
facts “capable of being proven true or false.” Yates, 721 N.W.2d at 771. Cerny-Deahl
argues only that Launderville’s statements “were nowhere near truthful nor were they
statements of opinion.” Brief in Support of the Resistance at 13. This argument seems
to conflate the defense of truth with the defense of opinion. Whether a statement is
opinion, however, is a question of law rather than an issue of fact.
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However, the court finds that Resolution No. 1589 does not constitute opinion. The
statements are precise and specific. They clearly refer to Cerny-Deahl and the actions that
she took with respect to her position as city clerk; there is no ambiguity in the meaning of
the statement. Furthermore, the statements as a whole are verifiable since they describe
the underlying reasons for why the statements are being made Cerny-Deahl improperly
prepared a city council resolution for her own financial benefit. The context for the
statements are city council action related to the alleged impropriety. Because the court
finds that the defense of opinion does not preclude this statement, summary judgment is
inappropriate on Count III. Accordingly, the court shall deny the Motion with respect to
the defense of opinion.
3.
Qualified privilege
“Qualified privilege is an affirmative defense in a defamation action.” Jones v.
University of Iowa, 836 N.W.2d 127, 149 (Iowa 2013).
The law recognizes certain situations may arise in which a
person, in order to protect his own interests or the interests of
others, must make statements about another which are indeed
[defamatory]. When this happens, the statement is said to be
privileged, which simply means no liability attaches to its
publication.
Id. (quoting Barreca, 683 N.W.2d at 116-17). The doctrine is based on public policy
principles. See id. To demonstrate the defense of qualified privilege, a defendant must
show:
(1) the statement was made in good faith, (2) the defendant had
an interest to uphold, (3) the scope of the statement was
limited to the identified interest, and (4) the statement was
published on a proper occasion, in a proper manner, and to
proper parties only.
Id. (quoting Theisen v. Covenant Med. Ct., Inc., 636 N.W.2d 74, 84 (Iowa 2001)).
“[M]embers of subordinate legislative bodies, including city councils, are entitled to a
19
qualified privilege for statements made in the performance of their official duties ‘upon any
subject matter pertinent and relevant’ to the occasion.” Barreca, 683 N.W.2d at 118
(quoting Cowman v. LaVine, 234 N.W.2d 114, 124-25 (Iowa 1975)). However, qualified
privilege does not apply “if the speaker acts with actual malice, or exceeds or abuses the
privilege through, for example, excessive publication or through publication to persons
other than those who have a legitimate interest in the subject of the statements.” Jones,
836 N.W.2d at 149 (quoting Theisen, 636 N.W.2d at 84) (internal quotation marks
omitted). To establish actual malice for the purpose of precluding the defense of qualified
privilege, “a plaintiff must show the statement was made with knowing or reckless
disregard for whether it was true or false.” Id. It is normally the “court’s responsibility
to determine whether a defendant’s statement is qualifiedly privileged, and a jury question
as to whether the privilege was abused.” Id.; see also Barreca, 683 N.W.2d at 118
(stating that it is the court’s job to determine if the occasion of the statement is privileged,
then the jury’s job to determine “whether that privilege was abused”).
As an initial matter, the court finds that Defendants’ statements are entitled to
qualified privilege. The statements were made in good faith in the course of city council
business regarding a situation involving a city council resolution and a city employee.
Defendants acted to uphold the City’s financial interests and to ensure that city council
records are properly maintained. The scope of the statement was limited to those interests.
Additionally, the written statement was published in accordance with Iowa Code § 372.15.
See Barreca, 683 N.W.2d at 118 (stating that city council members’ statements are
qualifiedly privileged, and subsequently considering the issue of whether the qualified
privilege was abused).
Cerny-Deahl argues that there is a genuine issue of material fact with respect to
whether Defendants’ statements lost their qualified privilege. Although Defendants agree
that the abuse of a qualified privilege is generally a jury question, they argue that the court
20
should find as a matter of law that the qualified privilege was not abused. See Brief in
Support of the Motion at 16-19.
Cerny-Deahl presented evidence that Launderville authorized July 1, 2013 as the
start date for Cerny-Deahl’s salary change, despite his statements to the contrary. See
Deposition of Sandra Cerny-Deahl, Plaintiff’s App’x (docket no. 25-3) at 35-36. There
is a dispute between the parties concerning whether Launderville told Cerny-Deahl that
July 1, 2013 was the date for the salary change.
Defendants argue that even if
Launderville had authorized the salary change, Cerny-Deahl should have known that only
the city council could make such a decision and, therefore, her actions would still have
been improper. See Brief in Support of the Motion at 18-19. Under these facts, the court
cannot say, as a matter of law, that Defendants did not abuse their qualified privilege that
they acted “without ‘actual malice,’ i.e. without a knowing or reckless disregard for the
truth.” Barreca, 683 N.W.2d at 123. Determining what evidence to believe with respect
to whether Defendants acted with knowing or reckless disregard for the truth is a jury
question. Viewing the evidence in the light most favorable to Cerny-Deahl, there is a
question of material fact with regard to whether Defendants abused their qualified
privilege. Therefore, summary judgment is inappropriate on Count III. Accordingly, the
court shall deny the Motion with respect to the defense of qualified privilege.
D. Punitive Damages
Defendants argue that the court should grant summary judgment with respect to
Cerny-Deahl’s claim for punitive damages because “the record contains no evidence from
which a reasonable jury could make an award of punitive damages under either federal or
state law.” Brief in Support of the Motion at 21. Cerny-Deahl argues that the court
should deny the Motion with respect to punitive damages because there is a genuine issue
of material fact regarding whether “Launderville acted with a reckless disregard for the
truth.” Brief in Support of the Resistance at 15.
21
Under Iowa law, “[a]n officer or employee of a municipality is not liable for
punitive damages as a result of acts in the performance of a duty, unless actual malice or
willful, wanton and reckless misconduct is proven.” Iowa Code § 670.12. “[A]ctual
malice is characterized by such factors as personal spite, hatred, or ill will.” Kiesau, 686
N.W.2d at 173 (quoting Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa
2001)) (internal quotation marks omitted). Willful, wanton or reckless misconduct “occurs
when an actor has intentionally done an act of an unreasonable character in disregard of
a known or obvious risk that was so great as to make it highly probable that harm would
follow, and which thus is usually accompanied by a conscious indifference to the
consequences.” Id. (quoting Viotho v. Hardin Cnty., 509 N.W.2d 350, 356 (Iowa 1993)).
“To receive punitive damages, plaintiff must offer evidence of defendant’s persistent
course of conduct to show that the defendant acted with no care and with disregard to the
consequences of those acts. Cawthorn v. Catholic Health Initiatives Iowa Corp., 743
N.W.2d 525, 529 (Iowa 2007) (quoting Wolf v. Wolf, 690 N.W.2d 887, 893 (Iowa 2005))
(internal quotation marks omitted).
Defendants argue that Cerny-Deahl has offered no evidence to support a finding of
punitive damages. However, Cerny-Deahl has offered an email sent to Launderville
stating that the salary change at issue would begin on July 1, 2013, as was her
understanding based on a prior conversation. Additionally, there is a signed statement
from Colleen Damon, the deputy city clerk, regarding her recollection of Launderville
telling Cerny-Deahl and Damon that the salary change would be effective on July 1, 2013.
See Plaintiff’s App’x at 65-66. Although a close call, the court finds that “a reasonable
fact finder could find by a preponderance of clear, convincing, and satisfactory evidence
[that] the conduct of [Launderville] from which the claim arose constituted willful and
wanton disregard for the rights . . . of another.” Cawthorn, 743 N.W.2d at 529 (quoting
Iowa Code § 668A.1.1.a) (formatting and quotation marks omitted) (first alteration in
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original). Accordingly, the court shall deny the Motion with respect to punitive damages.
VIII. CONCLUSION
In light of the foregoing, Defendants’ Motion for Summary Judgment (docket no.
22) is GRANTED IN PART and DENIED IN PART as follows:
(1)
The Motion is GRANTED with respect to Cerny-Deahl’s violation of due
process based on a property interest claim in Count I.
(2)
The Motion is GRANTED with respect to Cerny-Deahl’s violation of due
process based on a liberty interest claim in Count II.
(3)
The Motion is DENIED with respect to Cerny-Deahl’s defamation claim in
Count III.
(4)
The Motion is DENIED with respect to Cerny-Deahl’s claim for punitive
damages.
IT IS SO ORDERED.
DATED this 21st day of July, 2015.
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