The lawyer for Supreme Court candidate Michelle MacDonald, who is suing a blogger for defamation, apparently misinformed a judge in open court by claiming no one besides Michael Brodkorb has ever published MacDonald’s 2013 booking photo.
Ramsey County District Court Judge Richard H. Kyle, Jr., heard MacDonald’s motion for default judgment against Brodkorb on Nov. 1. He heard Brodkorb’s motion for summary judgment the same day and took both matters under advisement.
Just before the hearing ended, plaintiff’s attorney Karlowba R. Adams Powell offered Kyle input that, at best, seemed debatable.
“To my knowledge, to my client’s knowledge, no other media outlet has published this photo,” attorney Karlowba R. Adams Powell told the judge. “Only Mr. Brodkorb.”
On Aug. 29, Powell and MacDonald requested that Minnesota Lawyer remove the same photo from its website, indicating she was aware the newspaper had published it. The image—obtained from the Dakota County jail—accompanied an Aug. 24 story about her suit. It remains on the site.
Minnesota Lawyer is not even the only mainstream news organization to publish the photo, according to MacDonald’s court filings. In her amended complaint, filed July 24, she asserts that the St. Paul Pioneer Press also published the photo. But she said it was released online only “for a few minutes,” then removed at her request.
The image is at issue because MacDonald asserts Brodkorb has falsely labeled it a “booking photo” as part of an online harassment campaign she says he has waged against her. Its veracity is among several material facts MacDonald and her lawyer contend are in dispute.
Asked later about her representation to Judge Kyle, Powell said she only meant to communicate that Brodkorb’s website, MissingInMinnesota.com, was the lone outlet publishing the photo “as it relates to the basis of this lawsuit.”
“Brodkorb’s was the only media outlet that was publishing it at that time which gave rise to this lawsuit,” Powell said. “Let’s just get this in context.”
Brodkorb, a former state GOP deputy chair, later expressed exasperation with what he’d heard in court.
“The truth of the matter is that what was just discussed in that courtroom is void of any reality, based on the vastness of Michelle MacDonald’s mind,” Brodkorb said. “She is someone who creates controversy and alternative universes.”
The statement about the photo came during a larger debate over MacDonald’s status as a public figure.
MacDonald contends she is not a public figure, despite three consecutive Supreme Court candidacies—the first of which scored her 46.5 percent of the vote in 2014.
It’s a key question: If Kyle determines that she is a public figure, MacDonald would have meet a higher bar—actual malice—to prevail against Brodkorb and his co-defendant, Allison Mann.
That part of the discussion also gave rise to another odd claim by Powell. “Since that [public figure] issue was raised—and the entire time that these false statements were made, Ms. MacDonald was not a candidate,” Powell said.
Nathan Hanson, the attorney representing Mann and Brodkorb, suggested that contention is a falsehood susceptible to judicial notice.
“They refuse to admit that she is a candidate for Supreme Court,” Hanson told the judge.
MacDonald was indeed on Tuesday’s ballot, losing a challenge to Supreme Court Associate Justice Margaret Chutich. MacDonald filed as a candidate on June 5. She sued Brodkorb in Dakota and Ramsey counties a week later.
The Dakota County case was dismissed on Aug. 20 in favor of the Ramsey County proceedings that began last week.
Acrimony in evidence
The Nov. 1 motions hearing at times grew acrimonious, with defense attorney Nathan Hanson directly accusing Powell of lying and Powell calling his positions “ludicrous” and “ridiculous.”
Powell maintains that default judgment in MacDonald’s favor is warranted because Hanson never filed an answer to MacDonald’s lawsuit. Kyle agreed that never happened. “It should have been done,” he said.
Minnesota’s Rules of Civil Procedure require lawyers to “plead or otherwise defend within the time allowed by these rules or by statute.”
But Hanson said he fulfilled his obligations to “otherwise defend” by issuing voluminous e-service filings within required time limits. He also served a motion for Rule 11 sanctions when the case was still under consideration in Dakota County, he said.
Therefore, he said, MacDonald has been properly on notice.
“It’s just offensive to me that somebody would assert that we didn’t otherwise respond. We responded in three days,” Hanson said. “I mean, that’s disingenuous.”
“I am not lying when I say that he did not file an answer because he did not file an answer,” Powell responded. “My position is that the Rule 11 does not suffice as the appropriate document, according to the rules, that should have been filed.”
Kyle said that in a typical case, procedural compliance is achieved either through an answer to the complaint or a quickly filed motion to dismiss, neither of which happened here. Hanson’s dismissal motion memo was filed Oct. 1, four months after Brodkorb was sued.
But Kyle suggested the procedural rules can be satisfied in other ways.
“Can a sanctions motion be sufficient for ‘or in otherwise defending’ in a lawsuit, to put everybody on notice that we don’t at least agree with the merits? I assume that you say no,” Kyle said to Powell. “But I haven’t seen a lot of case law on this, defining this phrase.”
In his Oct. 1 motion for summary judgment, Hanson contends there are no facts in question. The material that Brodkorb and Mann published about MacDonald is all true, the lawyer said.
Therefore, he said, the duo would win their case even if Kyle rules that MacDonald is not a public figure, Hanson said. “Truth is a complete defense to a defamation proceeding,” he said.
MissingInMinnesota documents the case of two teenagers—Grazzini-Rucki’s daughters—who were hidden from their father on a rural Minnesota ranch for more than 900 days. Grazzini-Rucki was charged and convicted in that case.
Brodkorb and Mann’s website reporting provided grist for a nonfiction book, “The Girls are Gone,” that was released in late October.
Among her contentions, MacDonald accuses Brodkorb of defaming her by repeatedly labeling her “a person of interest” in the girls’ disappearance, something she insists was never true.
However, Minnesota Lawyer confirmed in August that, in 2013, Lakeville police did consider her initially a person of interest because they thought MacDonald hadn’t revealed all she knew about the disappearance. But MacDonald was never charged.
Powell said the image was defamatory because her 2013 arrest on contempt of court charges, which produced the photo, happened years before Brodkorb ever published it. “To say that the public is interested in this mugshot is just ludicrous,” Powell said. “The only person that was interested in it was Mr. Brodkorb.”
Hanson countered that MacDonald’s entire case is a clear matter of public interest. “The press is here,” he said. “The public is interested.” To say MacDonald is not a public figure “belies every aspect of reality that we are existing in right now,” he added.
The two sides also disagree on whether Brodkorb ever falsely reported that MacDonald was convicted of DWI in 2014. She was not. But Brodkorb says he has never reported that she was.
In the end, Powell told Kyle, so many facts are disputed that it would be improper to grant plaintiff’s motion for summary judgment prior to trial. “These are questions for the jury and cannot be—and should not be—resolved by summary judgment,” she said.
After hearing the arguments, Kyle said he would carefully weigh the matter. “We will try to issue an order as quick as I can,” he said.