July 26, 2017 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

A Minnesota trial court has ruled that the making of false and defamatory statements about the alleged commission of domestic violence is immune from civil liability due to a public policy of informing the public about DV. Stated another way, not telling the truth about domestic violence is part of state policy of informing the public about domestic violence. Really.

Kurt Maethner and Jacquelyn Maethner were married from 1995 until 2010 when they divorced. Jacki initiated the separation in 2008, much to Kurt’s surprise. After the divorce, and apparently to this day, Jacki retained the last name “Maethner.” At one point, Jacki purchased a house close to where Kurt lived. Kurt remarried in 2013.

During 2010, Jacki contacted an organization called “Someplace Safe,” that gives advice to victims of crime, including domestic violence, but why she did so or what she told Someplace Safe personnel doesn’t seem to be part of the trial record. Whatever the case, she at no time contacted the police to complain about domestic violence, never sought a restraining order against Kurt and never alleged domestic violence in the divorce process.

In 2013, shortly after Kurt remarried and apparently for the first time, Jacki declared herself a “victim” of “domestic violence,” and a “survivor thereof.” She did so on her Facebook page.

Apparently Jacki had renewed contact with Someplace Safe because in May of 2014, she received an award in the form of a certificate. According to Judge Frank Kundrat,

The Survivor Award certificate of presentation stated that it was awarded to "Jacki Maethner Jorud for empowering yourself and inspiring others to stand against violence. " (Shafer Aff., Ex. A). The nomination form that led to Defendant Jacquelyn receiving the Survivor Award stated that "Jacki is a survivor of domestic abuse and has volunteered to speak on behalf of Someplace Safe to tell her story of abuse and how she is now a survivor. " (Pl. Mem., Ex. D).

Jacki and Someplace Safe went on in the same vein in different publications. SS asked Jacki to write a piece for its newsletter detailing her experiences with domestic violence and her “survival” of same. In it she made statements like these:

"To call attention to the fact that it is ok to take a stand against domestic violence."

"Getting out of an unhealthy, threatening and dangerous relationship is hard."

"Just because you have left, or the divorce is final, or whatever your personal situation is

or was, doesn't mean the slate is swiped [sic] clean and you can just start a new life."

On Facebook, she posted, among other things, this:

On or about February 1, 2015, Jacquelyn posted that she "will continue to speak out and educate against domestic violence, " that she was a "survivor, " she has "learned to thrive" and described in general terms the elements of "domestic violence" and "healthy relationships. " Jacquelyn's name was listed on Facebook as "Jacki Hansen Maethner."

Unsurprisingly, Kurt sued Jacki and SS for defaming him. Both defendants moved for summary judgment. The grounds they asserted were essentially two – first that the publications made weren’t necessarily about Kurt, i.e. they didn’t identify him, and second that, even if they did, they were immune from civil action due to a state policy of informing the public about domestic violence.

Judge Kundrat showed his true colors in dealing with the first claim by the two defendants. While acknowledging that the law requires juries to consider allegedly defamatory statements in their context and together, not separately, the judge proceeded to do exactly that. He considered each statement by the defendants in isolation from the others.

Now, it is black letter libel law that a defendant doesn’t have to exactly specify a particular person in order to be held liable for false statements made about that person as long as a reasonable person would be able to ascertain who was referred to. So Jacki Maethner had been married to only one person for 15 years. Maethner is a highly unusual last name, certainly friends and co-workers and relatives knew the two had gotten divorced and she plainly referred to that divorce as not “swip[ing] the slate clean” regarding domestic violence.

Given all that, it is entirely possible that a jury would have concluded that Jacki could have been referring to no one other than her ex-husband, Kurt.

Kundrat gave it his best shot, but, in the end, couldn’t bring himself to grant the summary judgment motion on that basis.

He may have done so because he did grant it on the theory that Minnesota public policy protects such speech even if it’s not true.

[A]re defendants’ publication of Jacquelyn's article and award and her Facebook posts protected by a conditional or qualified privilege by virtue of the public policy goal of raising awareness of domestic violence and how victims can get help, as contended by Defendants?

Kundrat’s answer? They are. Needless to say, that just doesn’t make any sense. Under this ruling, anyone in the domestic violence industry, or indeed anyone anywhere can say anything, regardless of how untrue, about domestic violence and be free of any concern that they may have to pay damages for doing so. According to Kundrat, false statements about domestic violence serve “the public policy goal of raising awareness of domestic violence…”

Do I have to explain that they do no such thing? False statements are just that. They’re false. False statements don’t raise “awareness,” they compromise it. Surely lying about DV isn’t the stated policy of the State of Minnesota whether or not it’s the actual one. What is plainly slanderous, libelous and defamatory all of a sudden no longer is for the sole reason that it has to do with domestic violence. Kundrat issued everyone a license to defame.

Of course we don’t know for certain if the statements complained of were false. That, after all, is what jury trials are all about. In his zeal to throw this case out of court, to avoid a jury’s deciding the matter, Kundrat prevented us from ever knowing the facts of the case as found by an impartial jury. He didn’t have to.

All that had to happen was to have a trial on the matter. When it came time to instruct the jury, the judge could have first asked whether the various statements were true or false. That is, had there actually been domestic violence. If the answer had been that the statements were true, then the trial would have been over and Kurt would have received nothing for his troubles. If they were found to be false, then the judge could have decided whether they furthered the policy of raising awareness about DV. Given the jury’s findings, I suspect that wouldn’t have been a difficult decision.

But, as things stand now, we’ll never know the truth, a man who claims to have been defamed will never have his day in court and the state is stuck with the embarrassing, counterproductive and endlessly abuseable policy that lying about domestic violence is acceptable because it teaches the public about domestic violence.

I’ve seen plenty of result-oriented rulings in my day, but this one’s one of the looniest ever.




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#domesticviolence, #immunity, #defamation

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