Gary A. Van Cleve (#156310) Rob A. Stefonowicz, Esq. (#0297161) LARKIN HOFFMAN DALY &

LINDGREN LTD. 1500 Wells Fargo Plaza 7900 Xerxes A venue South Minneapolis, Minnesota 55431-1194 (952) 835-3800

and

Steven A. Diaz LAW OFFICE OF STEVEN A. DIAZ 2300 M Street NW, Suite 800 Washington, DC 20037 (202) 416-1633 Admitted Pro Hac Vice

Attorneys for Appellants Rochester City Lines, Co. and Daniel Holter, individually

John M. Baker (#174403) Monte A. Mills (#030458X) GREENE ESPEL, P.L.L.P. 2200 Campbell Mithun Tower 222 South Ninth Street Minneapolis, MN 55402 (612) 373-0830

Attorneys for Respondents City of Rochester, Dennis Hanson, Ed Hruska, Bruce Snyder, Mark Bilderback, Randy Staver, Sandra Means, Terry Adkins, and Stevan Kvenvold

Charles K. Maier (#230315) Matthew G. Plowman (#390753) GRAY, P L A N T ~ MOOTY, MOOTY

& BENNETT, P.A. 500 IDS Center 80 South Eighth Street Minneapolis, MN 55402 (612) 632-3242

Attorney for Respondent First Transit, Inc.

Julie A. Fleming-Wolfe (#175377) ATTORNEY AT LAW 1922 Grand A venue St. Paul, MN 55105 (651) 767-8642

Attorney for Respondent Michael Wojcik

The appendix to this brief is not available for online viewing as specified in the Minnesota Rules of Public Access to the Records of the Judicial Branch, Rule 8, Subd. 2(e)(2).

TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . u

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENTOFTHEISSUE .. . .. . .. .. . . . . . . . . . . . . ... . . . . . . 2

STATEMENT OF FACTS.................................... 3

ARGUMENT.............................................. 6

I.

II.

Standard of Review ................................... .

Wojcik was entitled to summary judgment on RCL and Holter's defamation claim because his statements were

not actionable as defamation ............................ .

6

6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1

TABLE OF AUTHORITIES

Cases:

Bahr v. Boise Cascade Corp., 766 N.W.2d 910 (Minn. 2009) ........ .

Benson v. Northwest Airlines, Inc., 561 N.W.2d 530 (Minn.App. 1997) ........................................ .

Fabio v. Bellomo, 504 N.W.2d 758(Minn.1993) .................. .

Geraci v. Eckankar. 526 N.W.2d 39l(Minn.App. 1995) ............ .

Gernander v. Winona State Univ., 428 N.W.2d 473 (Minn.App.l988) ..

Greenbelt Co-op Pub. Ass 'n v. Bresler, 398 U.S. 6 (1970) .......... .

Hunt v. University of Minnesota, 465 N.W.2d 88 (Minn.App. 1991) ........................................ .

Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437 (Minn.App. 1986) ........................................ .

Lund v. Chicago & N. W. Transp. Co., 467 N.W.2d 366 (Minn.App. 1991) ........................................ .

Marchant Inv. & Management Co, Inc. v. St. Anthony West Neighborhood Organization, Inc., 694 N.W.2d 92 (l\1inn.App. 2005) ........................................ .

McGrath v. TCF Bank Sav., FSB, 502 N.W.2d 801 (Minn.App. 1993) ........................................ .

Milkovich v. Loraine Journal Co., 497 U.S. 1, 110 S.Ct. 2695, Ill L.Ed.2d 1 (1990) ..................................... .

11

7

7

6, 11

7

13

2, 10, 11

7, 14

2, 6, 11

12, 13, 15

2, 7, 8, 12

8

7, 12

TABLE OF AUTHORITIES (CONT.)

Cases (Cont):

Northland Merchandisers, Inc. v. Menard, 1997 WL 408051 (Minn.App.) 14

Schlieman v. Gannett Minnesota Broadcasting, Inc., 637 N.W.2d 297 (Minn.App. 2001) .......................... . 7, 11, 12

Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn. 1980) ..... 7

111

STATEMENT OF THE CASE

Appellant Rochester City Lines ("RCL") provided fixed-route bus service in the

City of Rochester, Minnesota for many years. In 2011, the contract between RCL and

the City was put up for competitive bidding at the direction of the Federal Transit

Administration. The City issued a Request for Proposals on December 28, 2011, and

received bids from four responsive bidders, including Respondent First Transit, Inc.,

and RCL. An evaluation committee made up of four City officials and four outside

transit professionals reviewed the proposals and recommended awarding the contract to

First Transit, Inc., and the City awarded the contract to First Transit, Inc. RCL brought

suit against the City and certain City officials (hereinafter collectively "the City"),

alleging an unconstitutional taking ofRCL's property without just compensation and

violations of substantive and procedural due process. RCL later amended the

Complaint to add a claim of defamation brought by RCL and RCL President/Daniel

Holter against City Common Council member Michael Wojcik individually, based on

statements \Xfojcik made about RCL and RCL President/Appellant Daniel Holter on his

blog and his Twitter account. On August 24, 2012, RCL and Holter moved for summary

judgment on the takings claim against the City and on the defamation claim against

Wojcik. On November 2, 2012, the district court denied RCL and Holter's motions and

granted summary judgment to the City on the takings claim and to Wojcik on the

defamation claim. The defendants and third-party defendant Wojcik subsequently

moved for and were granted summary judgment on all of RCL and Holter's remaining

claims. A final judgment was entered thereon on June 10,2013. This appeal followed.

- 1 -

STATEMENT OF THE ISSUE

1. Whether Wojcik was entitled to summary judgment on RCL and Holter's defamation claim against him because Wojcik's statements were not actionable as defamation? 1

The district court denied plaintiffs'/ Appellants' motion for summary judgment on

their defamation claim against Wojcik and determined that Wojcik was entitled to

summary judgment because Wojcik's statements were not reasonably capable of carrying

a defamatory meaning. (ADD17-19, 31-38) A final judgment entered thereon on June 10,

2013. (ADD55-57)

Most apposite cases:

Greenbelt Co-op Pub. Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537,26 L.Ed.2d 6 (1970)

Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437 (Minn.App. 1986)

Marchant Inv. & Management Co., Inc. v. St. Anthony West Neighborhood Organization, Inc., 694 N. W.2d 92 (Minn.App. 2005)

1 Respondent Wojcik also joins in the arguments of Respondents City of Rochester and certain City officials sued in their official capacities on all other claims asserted against him in his official capacity.

- 2-

STATEMENT OF FACTS

Appellant RCL provided fixed-route bus service in the City of Rochester,

Minnesota for many years? (AAI-2) In 2011, the contract between RCL and the City

was put up for competitive bidding at the direction of the Federal Transit Administration.

(AA376-459) The City issued a Request for Proposals on December 28,2011, and

received bids from four responsive bidders, including Respondent First Transit and RCL.

(AA258-265) An evaluation committee made up of four City officials and four outside

transit professionals reviewed the proposals and recommended awarding the contract to

First Transit. (!d.) The City awarded the contract to First Transit, which began

operations on July 2, 2012. (AA97)

Michael Wojcik is an elected member of the City of Rochester's Common Council

and served on the Council during the bidding process. (AA 469) Wojcik maintains a

personal website, votewojcik.org, for communicating summaries and opinions on matters

of public interest to anyone visiting the site, including issues under consideration by the

At the December 22, 2011 Common Council meeting, the Council considered a

contract for a brief, six month continuation of transit services by RCL while the bidding

process was underway. (AA57-59, 469-472; ADD33) The City's existing contract with

RCL ended on December 31, 2011. (!d.) The City did not have any alternative transit

options if the contract with RCL was not approved. (!d.) RCL insisted on including a

2 Respondent Wojcik relies on and incorporates by reference the background facts as stated by Respondent City of Rochester in its brief, for the broader context of the dispute between Appellants and Respondents.

- 3-

provision in the contract guaranteeing a $180,000 profit, which the Council was able to

negotiate down to $140,000. (AA57-59, 70) The Council did not have any option but to

enter into a contract with RCL or risk not having transit services for citizens who relied

on the service and the loss of jobs should the contract be rejected. (!d.; Deposition of

Michael Wojcik, pp. 33-34, 41, 89-92 at Wojcik Addendum (W.ADD), pp. 1-4).

Following the Council meeting, Wojcik posted a written and video blog on his

website about RCL and Dan Holter's conduct in connection with the contract and the

bidding process. In his written blog, Wojcik wrote:

At the special meeting on December 22, 2011 the city council met to pay Dan Holter his $140,000 in taxpayer ransom. The city approved a horrible 6 month contract by a 4-2 margin. Everyone on the city council was disgusted by the contract and looked forward to awarding a new contract through open competition beginning July 1, 2012. In addition, the taxpayers of Rochester will be funding a 3% across-the-board increase for RCL (our staff is getting 1% increases). To the extent that this is legally permissible we will consider this experience in evaluating RCL for future competitive contracts.

As much as Dan Holter is to blame for this fiasco I place a similar amount of blame on city staff for allowing us to be in a situation where a majority .-.-t tb"" r 0 ,..,,...;1 c.elt uv"" harl .............. h ..... ;,...e h,t to ""'~v"" 1·n to Holta..-'s rlan->and" Th"" V.L L .1\w '-" UJ..lVJ...I. 11 L V \.1 J...l. U .l.I.V V.I..I.V.l\..1 UU.L 5.1. V .1 L .1. .lLVJ. \...1.\..1.1..1..1. J. l:). V

question is why we had not negotiated with another company so as to have some leverage with RCL. A review of the entire process and transit operations is probably in order.

(AA469-470)

On his video blog, Wojcik stated that he was providing a Council meeting update

following a special session to finalize the contract with RCL and Holter. (AA57-61)

Referring to Holter's contract demands, Wojcik stated "basically what he did is, because

we essentially didn't have anyone to go to and he knew he was the only person

-4-

negotiating for this contract, he basically said, in addition to all that other stuff you're

paying us, we want a 3% across-the-board increase and $180,000 profit." (!d.) Wojcik

stated that the Council was able to reduce the demand to $140,000, commenting "that's

$140,000 of additional taxpayer dollars taken from taxpayers and given to Dan Holter for

the sake of doing what he's always done." {ld.) Wojcik stated that there was disgust with

RCL for basically "holding us hostage" because the Council believed that the buses were

not going to run if the contract was not approved, and he referred to RCL's contract terms

as "ransom demands." (Jd.) Wojcik described the situation as unfortunate and

"essentially extortion" because the Council got into a situation where it had no other

option because the City needed uninterrupted continuation of the bus service, and they

had no choice but to agree to RCL's contract terms. (Id.) Wojcik explained that it was a

six month contract and that the Council was then opening it up for bid. He stated that they

wanted as many bidders as possible and a "more ethical company to stand behind us and

operate the transit system then perhaps we feel we've gotten from RCL in the past few

months." (Id.) At the December 22, 2011 Council meeting Wojcik tweeted: "at city

council bus extortion approval meeting," and "so ends one of the sleaziest public

meetings I have ever been involved in. Public held hostage and robbed by #RCL."

(AA471)

On February 16, 2012, after RCL sued the City claiming it owned the transit

system, Wojcik wrote on his blog, criticizing Holter's assertions that RCL owned the

transit system and that RCL had not made any money on City bus service for 44 years.

- 5 -

Dan also claimed they RCL hadn't made any money on city bus service for 44 years. Which begs the question, is Dan lying? Why would he want to continue to not make money? I believe that Dan is in fact lying. I believe he finds profit in the generous salary he pays himself, the generous rent he gets from the city for his ancient garages, and the shared overhead he applies to the city programming.

(AA57-58) Wojcik wrote further that those who thought the City did not have the

courage to stand up to Holter were wrong, and that the Council would not stand for this

"insanity." (Id.) Wojcik went on to argue his side of the question of whether or not the

transit contract should have been open to competition and he criticized Holter for his

sense of entitlement. (I d.)

ARGUMENT

I. Standard of Review.

On appeal from summary judgment, this Court determines whether there are any

genuine issues of material fact and whether the trial court erred in its application of the

law, viewing the evidence in the light most favorable to the nonmoving party. Fabio v.

Bellomo, 504 N.W.2d 758, 761 (Minn.l993). Whether a statement is reasonably capable

of carrying a defamatory meaning is a question of law for the court to decide, and the trial

court's determination is reviewed by this Court de novo. Jadwin Minneapolis Star &

Tribune, 367 N.W.2d 476, 483 (Minn. 1985).

II. Wojcik was entitled to summary judgment on RCL and Holter's defamation claim because his statements were not actionable as defamation.

' In order to establish defamation, a plaintiff must prove: 1) the defamatory

statement was communicated to someone other than the plaintiff, 2) the statement was

false, and 3) the statement tended to harm the plaintiffs reputation and to lower the

- 6-

plaintiff in the estimation of the community. Bahr v. Boise Cascade Corp., 766 N.W.2d

910, 919-20 (Minn. 2009). To be actionable as defamation, a comment must be

reasonably interpreted as stating facts that can be proven false because truth is a complete

defense to a defamation claim. Stuempges v. Parke, Davis & Co., 297 N.W.2d 252,255

(Minn. 1980); Geraci v. Eckankar. 526 N.W.2d 391, 397-98 (Minn.App. 1995). The

burden of establishing each element of a defamation claim is on the plaintiff. Benson v.

Northwest Airlines, Inc., 561 N.W.2d 530, 537 (Minn.App. 1997).

Statements that cannot reasonably be interpreted as stating facts are not actionable

as defamation. Hunt University of Minnesota, 465 N.W.2d 88,94 (Minn.App. 1991).

Only statements that present or imply the existence of facts that can be proven true or

false are actionable under Minnesota defamation law. !d., citing Milkovich v. Lorain

Journal Co., 497 U.S. 1, 18-20, 110 S. Ct. 2695, 2705-06, 111 L. Ed. 2d 1 (1990). See

also Marchant Inv. & Management Co., Inc. v. St. Anthony West Neighborhood

Organization, Inc., 694 N.W.2d 92, 95 (Minn.App. 2005); and Schlieman v. Gannett

Ml.nMo<'otrr "Rvr.adcastz·ng TM/' h17 N w 2r1 at 1()Q {lV1nm Ann 2()()1 \ fQnly ctatPrnPntc '"'-'IJ t-l4o .LJI V '..LIH ... .-., VJ I .J. • • U L -JVV \.J.Vl..L..L .l.o..L 1_1J_t:J• VV .L/ \ IJ" \..V.I..L.LV..L.I.._U

that present or imply the existence of facts that can be proven true or false are actionable

under state defamation law.) If it is plain that the speaker is expressing a subjective view,

an interpretation, a theory, conjecture, or surmise, rather than claiming to be in

possession of objectively verifiable facts, the statement is not actionable as defamation.

Marchant, 694 N.W.2d at 95, citing Schlieman, 637 N.W.2d at 308. Speech that is

properly categorized as parody, loosely figurative, or rhetorical hyperbole is also

- 7-

constitutionally protected because this type of speech cannot be reasonably interpreted as

stating actual facts. Marchant, 694 N.W.2d at 96.

Whether a statement can be proven false or interpreted as stating facts is a

question of law for the court to decide. McGrath v. TCF Bank Sav., FSB, 502 N.W.2d

801, 808 (Minn.App. 1993). In determining whether a statement presents a provably

false assertion of fact that could support a defamation claim, courts "examine the

statement's broad context, which includes the general tenor of the entire work and its

statements, setting, and format; the specific context and content of the statements,

including the use of figurative or hyperbolic language and the reasonable expectations of

the audience; and whether the statement is sufficiently objective to be susceptible of

being proved true or false." Marchant, 694 N.W.2d at 96.

In their Amended Complaint, RCL and Holter alleged Wojcik made the following

defamatory statements on his blog or by tweeting:

"RCL stole $140,000 from taxpayers," referring to the guaranteed profit RCL demanded in negotiations with the City over the bus contract;

RCL and Holter engaged in "essentially extortion" in connection with the negotiation of the bus contract with the City;

The City will "make sure that we have a more ethical company to stand behind us and operate our transit system;"

He is "at city Council bus extortion approval meeting;"

"So ends one of the sleaziest public meetings I have ever been involved in. Public held hostage and robbed by RCL;"

- 8 -

"I believe that Dan is in fact lying" about the financial performance of RCL;

He had a meeting with RCL senior staffers "a few weeks back (shortly after Dan held the public hostage for a $110,000 shakedown);"

(Appellants Brief, 8-9; ADD31) Prior to the close of discovery, RCL and Holter brought

a motion for summary judgment on their defamation claim against Wojcik, arguing that

the facts were undisputed and that judgment should be granted in their favor. Wojcik did

not dispute that he made the statements attributed to him, or that they were published on

his website or twitter account. The district court agreed that the material facts were not in

dispute and that the claim could be decided as a matter of law. (ADD32)

The district court thoroughly analyzed each of Wojcik's statements that RCL

engaged in "extortion," "robbed and "stole" from taxpayers, and "held the public

hostage," and determined that when the statements were considered in the context in

which they were written/spoken, they were not reasonably capable of carrying a

defamatory meaning, and therefore were not actionable as defamation. In making this

determination, the district court took into account the full context of the statements, as it

was required to do. The court noted for example, that the statements were made on

Wojcik's website www.votewojcik.com, or from his twitter account, which were conduits

for Wojcik's political commentary, and that the statements were made as part of Wojcik's

description of Common Council meetings and negotiations between RCL and the City

over a six-month transit contract. Viewing the statements in context, the court determined

that

- 9-

No reasonable person would understand Wojcik's statements as accusations that plaintiffs actually committed the crimes of extortion, robbery, theft, or holding hostages for "ransom." ... Wojcik provided the context in which his comments are properly read and understood, describing in some detail what he was talking about. .. Wojcik used strong terms to convey his "disgust" for RCL's "greed" and hardball negotiation tactics. But he used terms immediately recognizable, in context, as idioms for outrageous overcharging, not literal criminal theft.

(ADD34)

In reaching its conclusion that none of these statements were actionable as

defamation, the district court relied in part on the very similar United States Supreme

Court case of Greenbelt Co-op Pub. Ass'n v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1542,

26 L.Ed.2d 6 (1970), in which the Supreme Court held that an accusation of blackmail

during a heated city council debate was mere rhetorical hyperbole because the word, in

context, clearly referred to the unreasonableness of legal negotiating proposals discussed

at the debate rather than the actual crime of blackmail. In Greenbelt, the court stated

"[i]t is simply impossible to believe that a reader who reached the word "blackmail" in

either article would not have understood exactly what was meant: it was Bresler's public

and wholly legal negotiating proposals that were being criticized." Id., 398 U.S. at 14, 90

S.Ct. at 1542.

!d.

No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable. Indeed, the record is completely devoid of evidence that anyone in the City of Greenbelt or anywhere else thought Bresler had been charged with a crime.

- 10-

Appellants do not argue that the district court erred in its legal analysis in general

or in any specific way, including its application of Greenbelt to the present case. Indeed,

appellants do not even address or attempt to distinguish the Greenbelt case in their

argument. Instead, Appellants argue that the Court erred by failing to resolve all doubts

and factual inferences against Wojcik when it determined that Wojcik's statements were

not actionable as defamation because they could not reasonably be understood as

statements of fact. Appellants' argument is based on a misstatement of the district court's

analysis.

Contrary to Appellants' argument, in determining that the statements were not

actionable as defamation because no reasonable person would understand Wojcik's

statements as accusations that RCL actually committed the crimes of extortion, robbery,

theft, or holding hostages for ransom, the Court was not resolving a factual dispute in

Wojcik's favor. It was deciding a question oflaw. Whether statements are reasonably

capable of carrying a defamatory meaning is an issue of law to be resolved by the court.

Jadwin v. Minneapolis Star and Tribune Co., 390 N.W.2d 437, 441 (Minn.App. 1986);

Schlieman v. Gannett Minnesota Broadcasting, Inc., 637 N.W.2d 297,307 (Minn.App.

2001 ). On summary judgment, the district court must view all facts in the light most

favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d at 761. However, the

court was not required, as Appellants argue, to resolve legal issues in their favor. Making

a determination of whether a statement could reasonably be construed as carrying a

defamatory meaning was not an error of law and instead was precisely what the court was

required to do. See id.

- 11 -

Moreover, here, as in Bresler and Marchant, the context of the statements

mandates the conclusion that no reasonable person could have understood Wojcik's use

of criminal terms to describe RCL's conduct as anything more than a statement of his

opinion using rhetorical hyperbole, and not a charge of actual criminal conduct. Wojcik

was a common Council member at the time the statements were made. The statements

were made on Wojcik's political blog and to his twitter followers. The statements

described the circumstances that gave rise to his perceptions and opinions about RCL's

conduct - facts Appellants did not and do not dispute, such as the fact that RCL was the

sole transit provider for the City and negotiated a guaranteed profit of $140,000 on a six-

month extension of the transit contract on the eve of the end of the contract term, at a

time when the City did not have any other options for covering bus service. Because

Wojcik did not imply objectively verifiable defamatory facts, and instead made clear the

basis for his descriptive statements about RCL's conduct, a reasonable person would

interpret the statements as rhetorical hyperbole conveying a critical opinion of RCL.

Accordingly, \Vojcik's statements fall into that category of expression considered to be a

"subjective view, an interpretation, a theory, conjecture or surmise," incapable of being

proven false and not actionable as defamation. See Schlieman, 637 N.W.2d at 308.

Appellants also disagree with the district court's determination that Wojcik's

statement "I believe that Dan is in fact lying" was not actionable as defamation because

it was a statement of Wojcik's interpretation of facts that he laid out, and was incapable of

being proven false. Appellants' argue that the district court failed to analyze the statement

under the four-factor test enunciated in Lund v. Chicago & N. W Transp. Co., 467

- 12-

N.W.2d 366, 369 (Minn.App. 1991). and failed to view all factual inferences and doubts

in their favor. Appellant's argument misstates the district court's analysis, ignores the

context -driven factors enunciated in Lund and again confuses the requirement that fact

disputes should be resolved in the nonmoving party's favor with the legal determination

of whether a statement is actionable as defamation.

First, the court did apply the Lund four-factor test to the established, undisputed

facts to determine whether the statement was actionable defamation.3 (ADD13, 17-18).

Second, it is Holter, not the district court, who ignores the elements of the Lund analysis

by focusing only on the first two factors while ignoring the factors that recognize the

statements must be viewed within the social, literary and public context in which they

were made. Lund v. Chicago & N W Transp. Tp. Co., 467 N.W.2d at 369. Third, the

opinion-fact determination is a question of law, not fact. Gernander v. Winona State

Univ., 428 N.W.2d 473,475 (Minn.App.l988). The court determines whether an

expression of opinion may reasonably be understood to imply the assertion of

undisclosed facts. Lund v. Chicago & N. W Transp. Co., 467 N.\V.2d at 369. The court

was not required to resolve all legal issues in Appellant's favor.

RCL similarly misconstrues the law and the district court's application of the law

to be established facts regarding Wojcik's statement that the City would "make sure that

we have a more ethical company to stand behind us and operate our transit system." The

3 Lund v. Chicago & N W Transp. Co. set out the four-factor test to distinguish opinion from fact as follows: 1) the statement's precision and specificity; 2) the statement's verifiability; 3) the social and literary context in which the statement was made; and 4) the statement's public context. Id., 467 N.W.2d at 368.

- 13-

court determined that the statement, implying that RCL was unethical, was not

sufficiently precise to convey facts that could be proven true or false, and that even if

"unethical" were precise enough to be considered an actionable term, it was a statement

of Wojcik's interpretation of facts that he laid out and was incapable of being proven

false, and therefore not actionable as defamation. (ADD3 7-38) RCL's argument that the

statement did not just imply that RCL was unethical, but also "signaled that the company

chosen by the City through the bidding process would be demonstrably more ethical than

RCL, and could be understood by a reasonable reader to be based in fact, and was

therefore actionable," is without merit.

As this Court has previously determined, the word "unethical" is too vague and

indefinite to state a fact which could be proven true or false. See Northland

Merchandisers, Inc. v. Menard, 1997 WL 408051 (Minn.App.) (Statements in letter

about a "conflict of interest" and "terrible ETHICS" cannot be reasonably interpreted as

stating actual facts about plaintiff and its principals.) See also Hunt v. University of

Minnesota, 465 N.W.2d at 94 (statements about plaintiffs warmth, sincerity, and

integrity are not actionable because they cannot be proven false). RCL's attempt to

distinguish Wojcik's statement from the statement found to be non-actionable opinion in

Northland is a distinction without a difference. RCL essentially argues that because

Wojcik used the term "unethical" to compare RCL to the company the City would choose

through the bidding process, the statement was more precise than the statement in

Northland, that the plaintiff had "terrible ethics." However, as the district court noted, it

is the lack of definition in the term "ethical" itself that makes it impossible to objectively

- 14-

verify whether the statement is true or false. (ADD38) Whether the term is used to

describe a company or to describe a company as compared to another company, does not

make the term any more precise or provable.

Moreover, the district court's analysis went further, by assuming for the sake of

argument that the term "unethical" was not too vague to be actionable, and reasoned that

because Wojcik's statement did not imply the existence of undisclosed facts supporting

his opinion, it was not defamatory.

Even assuming that "[un]ethical" could be an actionable term, the context indicates that Wojcik was referring to the specific conduct ofRCL in negotiating the six month contract with the City. Again, Wojcik presented the facts upon which he relied in formulating his opinion that RCL was not sufficiently,"ethical": RCL approached the City shortly before the old contract was to expire and demanded an additional $180,000. Wojcik's statement is patently his interpretation of these facts; and it does not assume or imply the existence of facts not disclosed.

(ADD38, emphasis in original) This analysis is consistent with and based on this Court's

analysis in Lund, 467 N.W.2d at 373, which considered the statement in the context in

which it was made and whether the speaker presented the facts upon which he relied in

formulating the opinion stated, in determining whether a reasonable person would

interpret the statement as stating actual facts about the plaintiff. (ADD37-38) Here, the

context in which the statement was made and the fact that Wojcik disclosed the factual

basis for his statement that RCL was unethical, preclude the possibility that a reasonable

person would interpret it as anything other than his opinion. The district court did err in

determining that the statement on Wojcik's blog was an opinion based on disclosed facts,

- 15-

and could not reasonably be understood as stating a fact, and was therefore not actionable

as defamation.

CONCLUSION

Based on the foregoing and the arguments of the City of Rochester and certain

City officials presented on this appeal, Respondent Michael Wojcik requests that the

judgment of the district court, granting summary judgment to him on all of Appellants'

claims against him, be affirmed in all respects.

Respectfully submitted,

Dated: October 15, 2013 JULIE FLEMING-WOLFE

,-.....,-,.,..,..Avenue St. Paul, Minnesota 55105 Telephone: (651) 767-8642 jfw@flemingwolfelaw.com

ATTORNEY FOR RESPONDENT MICHAEL WOJCIK

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CERTIFICATE OF COMPLIANCE WITH RULE 132 Subd. 3

1. This brief complies with the type-volume limitation of Minn. R. Civ. App.

P. 132 Subd. 3(a)(l) because this brief does not contain more than 14,000 words,

excluding the parts of the brief exempted by Minn. R. Civ. App. P. 132 Subd. 3.

2. This brief complies with the typeface requirements of Minn. R. Civ. App.

P. 132 Subd. 3(a)(2) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface using Microsoft Word

2007 in Times New Roman size 13.

:::d ili~5th dri?-2013 Julie Flemin W fe

Attorney for Respondent Michael Wojcik

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