Jerry Moore awarded $60,000
FRIDAY, 11 MARCH 2011 12:05 -- TYZAGUIRRE
Moore wins $35,00[0] for loss of benefits of the contract, and $25,000 Emotional distress or actual harm to reputation.
Hoff and attorney Paul Godfread were not present in courtroom at time of verdict nor was Moore or Jill Clark.
According to Megan Goodmundson John will appeal.
Published minutes after the item was read. No second source confirmation follow-up done yet.
_________________UPDATE_______________
It appears one of those possibly inconsistent jury verdicts is at play. Defamation was not found by the jury. Shelia Regan on Daily Planet, this link, has a very good and detailed report.
Read it at Daily Planet.
This excerpt, but again, read Regan's report. It is excellent.
While the jury found that statements made by John Hoff in his blog about Jerry Moore's involvement with a fraudulent mortage transaction at 1564 Hillside Avenue were not false, they still awarded $60,000 in damages to Jerry Moore for interference with his employment at the University of Minnesota and potential future benefits and for emotional distress. The award was $35,000 for "loss of benefits" and $25,000 for emotional distress.
For the defamation claim, Moore needed to prove that the statement below, written in Hoff's blog, was false:
"Repeated and specific evidence in Hennepin County District Court shows Jerry Moore was involved with a high-profile fraudulent mortgage at 1564 Hillside Ave N."
Because Judge Reilly ruled before the trial that Moore was a limited public figure, Moore needed to prove not only that the statement was false, but also that Hoff acted with malice in making the statement. Because the jury found that the statements Hoff made were not false, they never arrived at the question of malice.
So why $60,000 if there was no defamation, but a true statement? Read Regan's reporting.
In a long trial, the jury returns a verdict, and there are post verdict proceedings. Motions. And if Hoff and counsel want to claim any error in jury instructions harmed them materially at trial, they have grounds for an appeal. To contend any particular part of a special jury verdict is unsupported by substantial evidence in the record, the cost of transcribing the record can be prohibitive. But facing a $60,000 judgment, I suppose you have no choice but to transcribe it if that's the basis of appeal. Usually instructions to the jury are what's appealed, and usually the three Court of Appeals reviewing judges will say there was no error, or term it harmless error. Getting a reversal in a jury verdict at a jury trial, unless the trial judge is convinced for some reason to set aside the verdict or reduce it, is a difficult proposition.
This is not good for blogging, since most of it is done by individuals without any pecuniary stake in things but only wanting community government to act in ways believed proper or better than what was done; and there's never defamation insurance.
What's really bent backwards in this thing, there was no defamation but the plaintiff [the aggressor, claiming a pound of flesh] nonetheless gets sixty grand.
Go figure. Juries are wierd, and can be prone to decice based on passion over rational deliberation. It's put in their hands. They retire, deliberate, and come back with a verdict.
How it is is not perfect, but it is how it is, and without a jury, especially in a criminal proceeding where the opponent is the state, it is the state against you and an agent of the state, a judge, deciding what the factual truth was, unless you utilize a jury.
Enough. Again, Shelia Regan, Daily Planet, here.
_______________FURTHER UPDATE______________
Abby Simons of Strib, who reported earlier on trial aspects, reports here, including:
Don Allen, who was originally named as a co-defendant in the lawsuit for a comment he posted on the blog, settled with Moore and testified against Hoff during the weeklong trial. Allen, who operates his own blog, "The Independent Business News Network, applauded the verdict."
"It's unfortunate for all bloggers, but you have to have some sense of responsibility," he said. "You have to attack the issues, not the individuals."
___________FURTHER UPDATE______________
Strib, Abby Simons' revised and extended report, updated Mar 12, 7:47 am, now states:
Though blogger John (Johnny Northside) Hoff told the truth when he linked ex-community leader Jerry Moore to a high-profile mortgage fraud, the scathing blog post that got Moore fired justifies $60,000 in damages, a Hennepin County jury decided Friday.
[...] Moore was fired by the University of Minnesota in June 2009, the day after Hoff's post.
North Minneapolis politicians and personalities, many of whom took the stand, watched the trial closely. So did First Amendment scholars and free-speech advocates who were concerned about the suit's effect on "citizen journalism."
Jane Kirtley, a U of M professor of media law and ethics, called the lawsuit an example of "trash torts," in which someone unable to sue for libel, which by definition involves falsity, reaches for another legal claim. She predicted the verdict will be overturned.
"This is based on expression, and expression enjoys First Amendment protection," Kirtley said. Just last week, she said, the U.S. Supreme Court ruled that the First Amendment protected the Westboro Baptist Church's antigay protests at military funerals.
"I find it really hard to believe that there was a degree of emotional distress caused by this reporting that outstrips that suffered by [a Marine's] family," Kirtley said.
The verdict also surprised U of M law professor William McGeveran, but he wasn't so certain that it will be easily overturned. Appeals courts tend to give a lot of credence to jury verdicts, he said.
Emphasis added. McGeveran was not asked about post-verdict motions possibilities, or did not discuss that - but it is important because the trial judge saw all witness demeanor and heard all that was said as well as ruling on documentary evidence. The trial judge deserves the post-verdict opportunity to hear all possible argument based on the actual trial evidence with pleadings deemed to conform to evidence at trial, and to rule on whether Hoff should have a judgment of dismissal notwithstanding the verdict.
JNOV motions often are a pro forma step to protect a record for appeal, but with Judge Denise D. Reilly, where her online bio shows she is both very smart and very experienced, the power is there and she has full discretion to use it as she feels the interests of justice require.
Before any three judge panel should review contended errors of law, the procedure is to assure the trial judge has every possible chance to avoid error, and that includes trial wrap-up motions practice.
In particular, with pleadings deemed as conformed to the evidence, and a government employment situation involved that Hoff genuinely believed was not in the public interest to the point that he spoke up to attain what he viewed a better result; Minn. Stat. Ch. 554 fully applies.
Sect. 554.03 grants a resonant privilege and immunity in the absence of a tort (recall the jury verdict was Hoff did not misstate the truth). And 554.03 requires any tort must be proven by clear and convincing evidence as to each element.
Moore and attorney Clark had less than that on the element of causation.
Hoff's blogging showed he believed he'd influenced the decision he genuinely sought, and witness Don Allen testified he speculated a short commment may have been anonymously written by Hoff, yet causation and proximate cause was not clearly and convincingly proven by that.
Presuming, for the sake of argument, Hoff did cause a job termination he believed against the public interest and something the government, the state university, should change; and that he did author the disputed item - he nonetheless was within his clear speech and public participation rights under Ch. 554; that's the evidence, and remember it was even Clark's pleading that Hoff was not "press" but a private individual exercising speech rights - exactly the case that the Minnesota anti-SLAPP statute was written to protect. Her pleading Moore's case that way leads to there being no surprise to her that a Ch. 554 dimension exists. We all are deemed to know the law. Attorneys not excepted.
There have been two recent Ch. 554 cases, one reaching the Minnesota Supreme Court, where judges explained what the anti-SLAPP statute means. They have narrowed the statute's reach, an unfortunate thing, but facts of the cases differed from Moore v. Hoff.
What we have is appellate guidiance on how trial judges such as Judge Reilly should read Ch. 554, and then how trial judges should think to apply it depending on particular facts - where Hoff's facts differ from those detailed in the two leading cases; first in time, Freeman v. Swift, 776 NW 2d 485 (Minn.App. 2009)(pre-trial not post-trial dismissal motion denied, speech interfering with siting change of a sex offender program, not impacting a government employment, no jury verdict of non-defamation); then Middle-Snake-Tamarac Watershed v. Stengrim, 784 NW 2d 834 (Minn. 2010)(interlocutory appeal, prior settlement agreement existed, Sect. 554.05 express language did not preempt common law re settlements).
Compare, however, the earlier but nonetheless quite recent opinion, Marchant Investment v. St. Anthony West, 694 NW 2d 92 (Minn.App. 2005)(pretrial dismissal of developer SLAPP against neighborhood activists affirmed). Marchant shows the courts are not intent upon carving the statute to nothingness, but will apply it as circumstances appear proper.
None of those cited cases involved a press dimension, or a citizen's personal journalism effort by blogging, where free speech rights have traditionally been recognized as inherent and needful of careful attention. Hoff had the journalist badge, despite plaintiff's contention otherwise, and mainstream press always has editorial opinion mixed with reporting, and so is always at risk. If Hoff resembles anything it is the Marchant neighborhood activists, not protesting how government handles development, but instead how it handles staffing. There is that distinction, but it is immaterial.
Minnesota's anti-SLAPP statute was enacted; Minn. Laws 1994 ch. 566 sect 4; and has been unamended since then except for Sect. 554.04 being changed; Minn. Laws 1995 ch 186 sect 98 (which added language about State relief for SLAPPs filed in federal court, not an issue between Moore and Hoff).
There has been a dearth of helpful cases construing the statute until quite recently, as noted. Freeman v. Swift, and Stengrim are extensively analytical, unlike e.g., Special Force Ministries v. WCCO T.V., 584 N.W.2d 789, 792 (Minn.App.1998)(anti-SLAPP contentions summarily discounted, no element of public participation existed, in fact).
Marchant was less analytical, because the anti-SLAPP citizen activism was clear and determinative to the trial and appellate courts.
Dimensions of importance: Each case affirmed trial court decision making so Judge Reilly is the key person in affairs. Whatever she does will likely stand. Her case is unique because it has the press dimension, plaintiff's assertions aside. Her case is unique because a jury has said nothing untrue was stated in pursuit of favorable government action, this is not an uncertain pretrial situation. Lastly, an inconsistent jury verdict is before the trial court needing rational judicial intervention and/or interpretation.
On its face, Freeman v Swift language suggests Judge Reilly could sustain the verdict.
The appellate court sustained Freeman trial court determination that the speech was borderline too remote from the public participation purpose sought.
Hoff's speech has far less remoteness.
There was UROC, a goverment entity, and its personnel staffing was directly challenged as faulty and against the public intrest.
Here, a jury deliberated and said things were not defamatory, unlike the pretrial situation in Freeman where factual issues remained for trial so denial of pretrial relief followed.
Judge Reilly must ask herself this fundamental question, how else could Hoff have genuinely made a difference (speech not making a difference being mere blowing air), but for doing what he did, mobilizing public opinion over true facts suggesting a bad personnel decision was made by government, and taking credit for its reversal, whether he truly caused that reversal or not.
He could have personally petitioned UROC, but one Hoff post mentioned that polite earlier contact had not achieved the genuinely sought favorable pubic action that publishing the truth arguably did achieve.
That's in the record. It is in what Hoff wrote.
In short, the facts in Freeman arguably are close, but not congruent to those of Moore v. Hoff, so that the question that Judge Reilly can send for appellate review is where is the line properly drawn?
In doing that she could help solidify Minnesota First Amendment and anti-SLAPP law.
In fact, the likelihood of appeal is manifest whether she defer to the verdict and Hoff appeals, or grants judgment notwithstanding the verdict with Moore appealing.
She might disagree that the impairments to applying the anti-SLAPP statute that the Freeman court found decisive are different in Moore v. Hoff, holding it a distinction without a real difference. But she should clearly put the case she presided over for a week into a posture where any basis for appeal is clearly defined by trial court deliberation and reasoning, and not left hanging and unaddressed.
Another course Judge Reilly could pursue, one I think best, is to stay any imposition of final judgment against Hoff under the verdict, while certifying the question as one of compelling public interest to the Court of Appeals, on her own motion, "sua sponte."
That is within trial court discretion.
Clearly the blogging world, this author included, would favor judgment of dismissal notwithstanding the verdict, with Moore having a burden of persuasion on appeal.
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With Ms. Simons of Strib showing an ongoing interest in coverage of the story, via revision of her reporting at least twice since the jury verdict was made known, she might consult her experts once again about anti-SLAPP dimensions of things.
That would assist public understanding and awareness.
Given Strib's direct tangible interest in First Amendment and anth-SLAPP law (it does publish editorial opinion on public policy that is genuinely aimed at procuring favorable results as well as doing objective reporting), and given that NPR, through Bob Collins, has expressed interest that way also, (locally while NPR nationally has its more pressing current worries); it seems that once all trial court matters have been fully aired and decided, an amicus brief from the mainstream ongoing operating press, those in that business beyond bloggers who've no cash to participate; should be filed if an anti-freedom of expression result is finalized at the district court level, or a pro-speech judgment notwithstanding the verdict results but is appealed.
Also, the ACLU should have anti-SLAPP beliefs and objectives, but unlike the organized press, they possibly might take up amicus briefing on either side.
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The case does deserve amicus attention, and some published appellate definitive resolution; and with things as they are, a trial court stay of judgment and certifying the question stands out as eminently reasonable. Perhaps reporter Simons might run that thought by her academic experts, to see what light they might shed on possibilities of a stay and certification being the most sound district court action.
BOTTOM LINE: If the statute did not intend the line to be drawn allowing as proper what Hoff did, publishing true things aimed at procuring favorable government action, then what speech would qualifiy as "public participation" under the Sect. 554.01, subd. 6 "speech or lawful conduct that is genuinely aimed in whole or in part at procuring favorable government action" definition?
The legislature does not consume time publishing wholly hollow words. Minn. Stat. Sects. 645.16 and 645.17.
The legislature intended clear undeniable protections.
The definition was clearly crafted to focus on speech, to not be limited only to the petitioning clause of the First Amendment. More than petitioning is expressly embraced. The legislature was clear.
The language standing as it is is inescapable. If it's of no help to Hoff, who might justifiably rely on it? That question is now in Judge Reilly's "jnov" hands.
Notwithstanding the verdict ...