Lawyers for Brodkorb, Senate dispute defamation claims in court

Former Senate staffer Michael Brodkorb‘s lawsuit against his former employers has been significantly reduced in scope, with Brodkorb voluntarily dismissing several of his claims. The Senate wants the suit to shrink yet again, arguing in court on Thursday morning for the dismissal of three additional counts. If successful, the defendants will have pared Brodkorb’s broad legal action to just two counts of  gender discrimination.

The origin of Brodkorb’s suit against the state, the Senate and Secretary of the Senate Cal Ludeman dates back to late 2011, when the Republican staffer was abruptly fired after revelations of his affair with former Senate Majority Leader Amy Koch. After months of acrimonious negotiation with the Senate proved fruitless, Brodkorb sought and received a “right-to-sue” letter from the Equal Employment Opportunity Commission. The EEOC’s decision allowed Brodkorb to argue that he had been treated differently than “similarly situated” female staffers, and was therefore the victim of discrimination.

His suit, filed in late July, also claimed that Ludeman had violated Brodkorb’s privacy by telling reporters about Brodkorb’s unsuccessful attempt to receive unemployment benefits. Those claims were dropped in early September, at which point U.S. Chief Magistrate Judge Arthur J. Boylan ordered the two parties into a September 24 settlement conference. Boylan’s order also placed all parties under a legal gag order.

Having originally brought 10 claims, the lawsuit has been narrowed to five counts. Along with his gender discrimination claims, Brodkorb is still pursuing complaints of defamation against Ludeman. That issue occupied much of Thursday’s hearing. Judge Susan Richard Nelson heard the Senate’s arguments for dismissal, with attorney Chris Harristahl leading the defense for the Senate and Ludeman, while Phil Villaume argued Brodkorb’s case.

At issue is whether or not Ludeman defamed Brodkorb by accusing him of attempting to “extort a payment from the Senate,” a phrase which appeared in a March 14 press release from Ludeman. In another instance, Ludeman told a reporter from the Star Tribune that Brodkorb’s behavior amounted to “blackmail.” Brodkorb’s suit claims that these statements are a reference to the criminal act of extortion, and damaged Brodkorb’s standing in the community.

Harristahl argued that “no reasonable reader” would have taken Ludeman’s words to be literal allegations of criminal behavior by Brodkorb.

“Context matters, your honor,” Harristahl said.

Harristahl cited an established U.S. Supreme Court precedent, which found that the use of the word “blackmail” did not necessarily imply a violation of the law, and was, in some contexts, not grounds for a defamation claim. Villaume countered that the instance under review in that case was a fleeting accusation uttered at a city council meeting, while Ludeman’s press release had been a calculated act.

“In our case, the defamatory statements at issue were drafted by the defendants, alleged federal and state crimes, and were purposefully released to the public,” Villaume said.

One curious aspect of the case, and Thursday’s proceedings, is that Brodkorb’s suit also targets the State of Minnesota, but the state has yet to take action in its own defense. Harristahl put forth a motion calling for references to the state to be stricken from the complaint, which Nelson said she tended to agree with, though she wondered aloud why the state had not made an appearance. Ultimately, Nelson said she was “not comfortable” ruling on the matter without the state present.

After a little over an hour’s worth of back-and-forth, Nelson said she would take the matters under advisement, and adjourned the hearing.