Debraska v. Quad Graphics, Inc.

2009 WI App 23, 763 N.W.2d 219, 316 Wis. 2d 386, 2009 Wisc. App. LEXIS 36
CourtCourt of Appeals of Wisconsin
DecidedJanuary 21, 2009
Docket2007AP2931
StatusPublished
Cited by7 cases

This text of 2009 WI App 23 (Debraska v. Quad Graphics, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Debraska v. Quad Graphics, Inc., 2009 WI App 23, 763 N.W.2d 219, 316 Wis. 2d 386, 2009 Wisc. App. LEXIS 36 (Wis. Ct. App. 2009).

Opinions

CURLEY, PJ.

¶ 1. Quad Graphics, Inc., Milwaukee Magazine, and Kurt Chandler (unless otherwise specified, collectively referred to as Quad), appeal from an order denying their motion for judgment on the pleadings.1 Quad filed a petition for leave to appeal the order, which we granted.

¶ 2. Quad argues that Bradley DeBraska, Sr.'s retraction demand failed to satisfy the conditions precedent to commencing an action pursuant to Wis. Stat. § 895.05(2) (2005-06).2 We agree, based on our conclusion that the retraction demand did not include "a statement of what are claimed to be the true facts." See id. Consequently, we reverse the trial court's order and [390]*390remand with directions to the trial court to enter judgment on the pleadings dismissing DeBraska's complaint with prejudice.

I. Background.

¶ 3. This appeal arises out of a lawsuit filed by DeBraska, former president of the Milwaukee Police Association, related to an article written by Chandler, which appeared in Milwaukee Magazine in July 2006. The article, entitled "See No Evil: Until the police union stops protecting bad cops, we may never heal the wound to the community caused by the Frank Jude case," discussed, in relevant part, actions purportedly taken by DeBraska in the aftermath of what is known in Milwaukee as the "Frank Jude beating."

¶ 4. The opening paragraphs of the article, which DeBraska contends are false, read:

In the predawn hours of October 24, 2004, as a police van took Frank Jude Jr. to a hospital, Bradley DeBraska crept around the crime scene in Bay View with a finger to his lips, hushing up the off-duty cops who would later be charged with beating Jude to a pulp.
At one point, DeBraska, then head of the police union, yelled at the officers to keep their mouths shut and hustled them indoors, where, according to Police Chief Nan Hegerty, he instructed them to lock out investigators and change their bloody clothes.
The Milwaukee Police Association has long walked a fine line between protecting its own and hampering investigations of police criminality ... .3

(Footnote added.)

[391]*391¶ 5. In response to the article, DeBraska hand-delivered to Chandler two letters dated August 1, 2006. One was addressed to Chandler directly, and copied to the chief of police at the time, Nannette Hegerty. The other was addressed to Chief Hegerty and copied to Chandler.4

¶ 6. The letter addressed to Chandler read:

Dear Senior Editor,
Subsequent to reading the "See No Evil" article you authored in the July issue of the Milwaukee Magazine I asked myself a basic question, "Did Mi'. Chandler take reasonable and rudimentary care in ascertaining information necessary to allege a private citizen had engaged in criminal behavior prior to publishing".
You had at your disposal if you chose to gain access, the entire criminal investigation, the internal investigation that was made public, the criminal proceedings that were publicly aired, and witnesses that accompa[392]*392nied my presence on October 24th, 2004. All of the information available to you would have certainly provided enough factual basis [sic] that I in fact did not engage in the criminal misconduct you allege in your article. Further, if there was reason to believe I did engage as your article points out the criminal investigators would have an obligation to arrest me and District Attorney E. Michael McCann would've had an obligation to issue criminal charges.
On behalf of the Milwaukee Magazine you published allegations that I engaged in criminal misconduct. These allegations are reckless by not taking reasonable and rudimentary care in ascertaining the truth. You have intentionally slandered my reputation without a scintilla of evidence but to advance a political agenda of a third party. The harm is substantial therefore; I respectfully request a full retraction and apology no less in size than your original article "See No Evil".
Under separate cover I requested the Chief of Police to provide you with truthful and accurate information to assist in your retraction and apology if you so choose. Thank you in advance for your cooperation.

(Punctuation as it appears in original.)

¶ 7. In the letter addressed to Chief Hegerty, DeBraska wrote:

Dear Chief Hegerty,
The Milwaukee Magazine published in its July Edition an article entitled "See No Evil" or the "Endgame". Your comments allege certain conduct perpetrated by myself during the criminal investigation on Ellen Street on October 24th, 2004. Your statements further suggest my motives in this alleged conduct were to hamper the investigation of police criminality.
[393]*393On the morning in question my involvement from the beginning was at best minimal due primarily to the nature of the investigation, that being criminal. During the entire engagement I was accompanied by Attorney Martin Kohler, Mr. William Ward, and Mr. James Miller, all fine people of the highest integrity. You indicate through your statements that I yelled at officers to keep their mouths shut, hustled the officers indoors, instructed the officers to lock out investigators and change their bloody clothes. There is little doubt you, as Chief, have thoroughly read both the Internal and Criminal investigatory files in conjunction with telephonic communications from the lead investigator from the scene on the night in question. I feel comfortable in suggesting that if your comments were in any way factual my arrest would have taken place or a reasonable question on your part would have been, 'Why wasn't DeBraska arrested?'
As a private citizen since April 1st, 2005, citizenship that you were clearly aware of when you chose to make these intentionally harmful comments, I don't believe you have a privilege to allege I engaged in criminal conduct and destroy my reputation publicly. Your comments were unfounded, slanderous and factually wrong. If I had engaged in the conduct you allege, the people assisting me would have certainly walked away. What is equally disturbing is your Public Information Officer[']s comment in response to my inquiry. "Are the Chief[']s comments in quotes". This, in response to my inquiry as to whether the statements are attributable to you. Suggesting somehow that if statements made by you are not in quotations, the pulpit afforded the position of Chief of Police can be used to defame a private citizen by alleging criminal misconduct. Incidentally, when Mr. Frank Jude was transported to the hospital I was sleeping, not 'creeping around the scene on Ellen Street holding a finger to my lips hushing up the off duty Police Officers'.
[394]

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Bluebook (online)
2009 WI App 23, 763 N.W.2d 219, 316 Wis. 2d 386, 2009 Wisc. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debraska-v-quad-graphics-inc-wisctapp-2009.