                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 96-3137
                                      ___________

Lazelle Michaelis,                   *
                                     *
             Appellant,              *
                                     *
      v.                             *
                                     * Appeal from the United States District
CBS, Inc., a New York Corporation,   * Court for the District of Minnesota.
                                     *
             Appellee,               *
                                     *
WCCO Television, Inc.,               *
                                     *
             Defendant.              *
                                ___________

                                  Submitted: March 13, 1997
                                      Filed: July 11, 1997
                                    ___________

Before WOLLMAN and BEAM, Circuit Judges, and REASONER,1 District Judge.
                          ___________

BEAM, Circuit Judge.

       In this defamation action, Dr. Lazelle Michaelis appeals the district court's orders
granting summary judgment in favor of CBS, Inc. and its affiliate WCCO Television,
Inc. (WCCO). We affirm in part and reverse in part.



      1
       The Honorable Stephen M. Reasoner, Chief United States District Judge for the
Eastern District of Arkansas, sitting by designation.
I. BACKGROUND

       Plaintiff Michaelis, a medical doctor, is board certified in anatomical pathology,
clinical pathology, and immune hematology. She is board eligible, although not board
certified, in forensic pathology. At the time the events relevant to this action took
place, she was the coroner of Otter Tail County, Minnesota, and was also employed
by Orandi Medical, P.A., a private medical association. Through her work for Orandi
Medical, Michaelis sometimes performed autopsies for the Becker County Coroner, Dr.
Watson, on an as-needed basis. Defendants CBS and WCCO2 are engaged in the
business of television broadcasting.

        Through a referral to Orandi Medical from Dr. Watson, Michaelis performed an
autopsy on Lori Jensen. Jensen, a young woman from Detroit Lakes, Minnesota, was
found dead in her car in her garage. Although her demise was deemed a suicide by
carbon monoxide poisoning, Jensen's family members doubted that conclusion and
criticized the investigation of her death. Defendants CBS and WCCO broadcast a
news report, on August 28 and 29, 1993, which was critical of both the investigation
and many of the officials involved, including Michaelis. It is this report that forms the
basis for this action.

       Michaelis sued CBS and WCCO for defamation. Her complaint alleged that
three statements in the report were defamatory. The following excerpts from the report
include, in underlined text, those three statements.




      2
        CBS is organized under the laws of the State of New York and has its principal
place of business there. WCCO is a wholly owned and operated division of CBS; it
is not incorporated in any state and is not a legal entity separate from its existence as
a CBS station.

                                          -2-
Statement One:

      So many questions. Why would Lori, who was in good spirits, even
      planning for a new job before she died, climb into this car and commit
      suicide some twenty-four hours later? Why didn't she leave a suicide note
      for her husband Ron, no message for Chelsea, the two-year old she
      adored? How did Lori break her nose without breaking these glasses,
      found beside her in the car? Why was she wearing only one shoe? Why
      was the death certificate signed and marked "suicide" and then filed when
      the case was still under investigation? Why was nothing in this garage
      fingerprinted, the scene not cordoned off to protect evidence?

Statement Two:

      The pathologist who performed Lori Jensen's autopsy works here at the
      regional hospital in Fergus Falls. We checked, she is not a board certified
      forensic pathologist. We tried to talk with the doctor about her
      qualifications to handle a suspicious case like this one. She hung up on
      us. Twice.

Statement Three:

      And WCCO has learned that Dr. Dorothy Michaelis was once sued in
      Keokuk, Iowa, after she reportedly changed the cause of death in a
      suspicious case there, apparently admitting she deviated from normal
      autopsy procedures. We also spoke with the Doctor's former supervisor,
      who told us "I fired her because we had serious reservations about her
      ability. She jumped to conclusions, was very temperamental and refused
      to listen, to admit mistakes."

      Defendants moved for summary judgment, which the district court, sitting in
diversity, granted as to statements one and three. The district court found that
statement one was not actionable as a matter of law as it did not state a false
defamatory fact about the plaintiff. The district court found that statement three was
subject to a qualified privilege for reporting public proceedings. The defendants then


                                         -3-
filed a second motion for summary judgment as to the remaining statement, statement
two. The district court granted the motion, finding that Michaelis was a public official
and that she had failed to prove the statement was made with malice, as required by
New York Times Company v. Sullivan, 376 U.S. 254, 279-80 (1964). Michaelis
appeals.

II. DISCUSSION

      Summary judgment is proper only when no genuine issue of material fact is
present and judgment should be awarded to the movant as a matter of law. Plough v.
West Des Moines Community Sch. Dist., 70 F.3d 512, 514 (8th Cir. 1995). It should
not be granted unless the moving party establishes the right to a judgment "'with such
clarity as to leave no room for controversy.'" Id. (quoting Jewson v. Mayo Clinic, 691
F.2d 405, 408 (8th Cir. 1982)). We review the district court's entry of summary
judgment de novo, giving the nonmoving party the benefit of every inference drawn
from the evidence. Plough, 70 F.3d at 514.

       In order to prove a defamation claim under Minnesota law, Michaelis must show:
(1) the defendants published or communicated a statement about her to a third person;
(2) the statement was false; and (3) the statement tended to harm her reputation and
lower her in the estimation of the community. O'Brien v. A.B.P. Midwest, Inc., 814
F. Supp. 766, 772 (D. Minn. 1992) (citing Stuempges v. Parke, Davis & Co., 297
N.W.2d 252, 255 (Minn. 1980)). In determining whether a particular statement is
defamatory, a court must review the statement in the context in which it was presented,
give the words their obvious and natural meaning, and consider the innuendos which
follow from the statement. Jadwin v. Minneapolis Star and Tribune, Co., 390 N.W.2d
437, 442 (Minn. Ct. App. 1986). If words are reasonably capable of carrying a
defamatory meaning, the determination as to whether the communication was in fact
defamatory is for the jury. Conroy v. Kilzer, 789 F. Supp. 1457, 1462 (D. Minn.
1992).

                                          -4-
        In addition to the standard elements of defamation, however, a public official
plaintiff must allege facts from which a jury could find that the speaker acted with
actual malice in making the defamatory statement. New York Times, 376 U.S. at 279-
80. To show actual malice, a public official must show that the defamatory falsehood
was made with knowledge of its falsity or with reckless disregard for its truth. Gertz
v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Applying these standards, we find
that the district court correctly granted summary judgment as to statements one and
three, but not as to statement two.

       A. Statement One--The Signed Death Certificate

       In order for a statement to be defamatory, it must assert a defamatory fact against
the plaintiff. Covey v. Detroit Lakes Printing Co., 490 N.W.2d 138, 143 (Minn. Ct.
App. 1992). Statement one, however, did not refer to Michaelis. The report did not
claim that Michaelis signed the death certificate. Indeed, the report as a whole made
clear that Dr. Watson, the Becker County Coroner, was in charge of assigning the
cause of death in Jensen's case. Because, in the context of the entire report, it was clear
that this statement did not refer to Michaelis, the district court correctly granted
defendants summary judgment on this issue.

       B. Statement Three--The Prior Lawsuit

       Minnesota law recognizes a qualified privilege for the media in reporting public
proceedings. Schuster v. U.S. News & World Report, Inc., 459 F. Supp. 973, 978 (D.
Minn. 1978). A statement about a judicial proceeding will be privileged as long as it
is a "fair and accurate" report of that proceeding. Jadwin, 390 N.W.2d at 441.
Statement three, including the reference to the prior lawsuit, the altered death certificate
and the deviation from normal procedures, was substantially true. The defendants
submitted copies of Iowa newspaper articles and Michaelis's own deposition testimony
from that case to prove the accuracy of the statement.

                                            -5-
        Michaelis concedes that she was sued in the Keokuk case and that she had
previously admitted deviating from her normal procedure in signing the death certificate
in that case. However, she claims that statement three is nevertheless inaccurate and,
therefore, not privileged. She argues that: (1) not following her own normal procedure
in preparing the Keokuk death certificate is markedly different than deviating from
normal autopsy procedures, as reported by the broadcast; (2) she was sued in her
official, not individual, capacity in the earlier suit, contrary to the implication in
statement three; and (3) defendants did not prove that the reporter relied on the judicial
proceeding when he broadcast the statement. These arguments are without merit. The
statement is privileged because it constituted a "fair and accurate" summary of the prior
proceeding. Id. Even the cumulative effect of these alleged discrepancies fails to
render the statement substantially inaccurate. Furthermore, Minnesota law does not
require a showing of actual reliance on the records of the prior proceeding before the
privilege attaches. Therefore, we find that the district court correctly granted summary
judgment as to this statement.

      C. Statement Two--The Phone Call Hang Ups and Qualifications

      Statement two poses a more difficult question. Initially, we note that in light of
our recent decision in Toney v. WCCO Television, we have no difficulty stating,
contrary to defendants' assertions, that defamation by implication is a viable cause of
action in Minnesota. 85 F.3d 383, 394 (8th Cir. 1996). One form of defamation by
implication is the omission of facts. Id. at 395. Another form is the juxtaposition of
facts so as to imply a defamatory connection between them. Id. In an implied
defamation case, a defendant does not avoid liability by simply establishing the truth
of the individual statement. Instead, the defendant must also defend the juxtaposition
of the two statements or the omission of certain facts.

      As the district court found, statement two is susceptible of a defamatory meaning
toward Michaelis. "It is specifically directed to her professional credentials, is

                                           -6-
juxtaposed to a description of a lawsuit against her relating to the performance of her
professional duties and of problems she had in her past professional employment, and
[is] presented in the larger context of criticizing the competency of the persons
investigating Lori Jensen's death." Michaelis v. CBS, Inc., Civ. No. 3-95-374, Mem.
Op. at 10 (D. Minn. Aug. 8, 1995). Considering statement two in conjunction with the
context and tenor of the entire report, a jury could conclude that Michaelis was evading
the reporter because she was neither qualified to handle the Jensen autopsy nor
professional in her investigation of Jensen's death. These are defamatory implications
which could injure Michaelis's professional reputation.3

       Having concluded that statement two was capable of a defamatory meaning, we
must consider which constitutional standards apply to Michaelis's defamation claims.
Our discussion begins with the district court's finding that Michaelis was a public
official. Defendants bear the burden on this issue. See Wolston v. Reader's Digest
Ass'n, Inc., 443 U.S. 157, 167-68 (1979). The court's determination of Michaelis's
public official status is a question of federal law, which we review de novo. Rosenblatt
v. Baer, 383 U.S. 75, 84, 88 (1966).

       The Supreme Court has not determined how far down the ranks of government
employees public officials may be found, New York Times, 376 U.S. at 283 n.23, but
has stated that public official status cannot extend to all public employees. Hutchinson
v. Proxmire, 443 U.S. 111, 119 n.8 (1979). At the very least, however, public official

      3
        Furthermore, statement two tells the listener that Michaelis hung up on the
reporter, clearly implying that no conversation had taken place. This is simply untrue.
Indeed, as the record clearly demonstrates, the reporter engaged in two phone
conversations with Michaelis, one for eight minutes and another for roughly five
minutes. During these conversations, the reporter continually pressed Michaelis for
information which she was uncomfortable giving out. Michaelis referred the reporter
to the county coroner, Dr. Watson, and let the reporter know that Dr. Watson could
more fully comment on the case. The omission of these facts could be found by a
reasonable jury to be sufficiently defamatory so as to support liability.

                                          -7-
status applies to "those among the hierarchy of government employees who have, or
appear to the public to have, substantial responsibility for or control over the conduct
of governmental affairs." Rosenblatt, 383 U.S. at 85. On the facts of this case,
defendants not only failed to show that Michaelis was acting in her capacity as a
government employee, but also that she was a hierarchical member of that group, with
substantial control over governmental affairs.

        Although Michaelis was the official Otter Tail County Coroner, she did not act
in that capacity in this case, which arose out of events in Becker County. The record
is replete with references to Michaelis as a hospital pathologist, not as the coroner of
any given county. Indeed, Michaelis held no position of government employment with
respect to Becker County, where the Jensen death occurred. She was neither the
Becker County Coroner nor a duly appointed deputy coroner or medical examiner. She
served merely as a private physician, to whom Dr. Watson occasionally referred
autopsies. In this instance, she was employed by and paid by Orandi Medical, P.A.
In light of this fact, Michaelis's Otter Tail County position was of little relevance. Even
if Michaelis was found to be a public employee for purposes of this case, however,
defendants failed to show that she had substantial responsibility for or control over
governmental affairs.

       As the record shows, Michaelis had a rather limited role in the Jensen case,
serving under the control of Dr. Watson. Although Minnesota statutes entrust county
coroners and duly appointed medical examiners with certain powers and duties,
defendants failed to show that Michaelis could exercise any of those powers in her
capacity in this case.4 Indeed, the record more appropriately supports the conclusion


      4
       Minnesota statutes delineate the powers and duties of county coroners, see, e.g.,
Minn. Stat. §§ 390.04; 390.15, and provide for the appointment of deputy coroners and
medical examiners, with similar powers and duties. See, e.g., Minn. Stat. §§ 390.05;
390.33. However, as Michaelis's deposition testimony showed, she did not occupy any

                                           -8-
that Dr. Watson simply enlisted the services of another pathologist, Michaelis, as was
his option under state law. See Minn. Stat. § 390.11 subd. 4. These private medical
specialists do not have any of the powers of a county coroner. Without such powers,
it is difficult to see how Michaelis could exercise responsibility or control over
governmental affairs.

       Because defendants failed to establish Michaelis's status as a public official, the
district court incorrectly granted summary judgment as to statement two. Therefore,
we remand this case for further proceedings in which the appropriate constitutional
standards are applied. Due to the district court's failure to reach the issue of Michaelis's
possible public figure status, see Curtis Publishing Company v. Butts, 388 U.S. 130
(1967), we express no opinion as to that issue.

III. CONCLUSION

       The district court correctly granted summary judgment as to statements one and
three, and we therefore affirm as to those statements. We reverse the district court's
grant of summary judgment as to statement two and remand for further proceedings
consistent with this opinion.

       A true copy.

              ATTEST:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




of these positions in Becker County. This testimony was unrebutted by the defendants.

                                            -9-
