MichelleMacDonaldvsMichaelBrodkorb,AllisonMannviaMNLawyer

Michelle MacDonald defamation suit may lack factual basis

Supreme Court candidate wants bloggers to ‘cease their Michael Brodkorb and Allison Mann, coauthors of MissinginMinnesota.com, are being sued for defamation by Michelle MacDonald, the West St. Paul attorney and Supreme Court candidate. MacDonald seeks damages exceeding $50,000, removal of a “false image” from their website and an order directing the duo to “cease their wrongful conduct.” The case is scheduled for a Sept. 10 hearing in Ramsey County District Court. (Staff photo: Kevin Featherly)

Michelle MacDonald defamation suit may lack factual basis

By: Kevin Featherly August 24, 2018 2 Comments

This photo of Michelle MacDonald was taken after an incident in a Dakota County courtroom in 2013. MacDonald says it’s misleading to refer to it as a “booking photo.”

Two of three key claims in lawyer Michelle MacDonald’s defamation lawsuit against Michael Brodkorb and his muckraking website appear unfounded, Minnesota Lawyer has learned.

Meanwhile Brodkorb, who accuses MacDonald of trying to squelch his First Amendment rights as a journalist, asserts that a third allegation in her suit also is factually inaccurate. Minnesota Lawyer could not independently verify that.

MacDonald and her law firm has sued Brodkorb’s muckraking MissingInMinnesota.com website, saying it has violated the Society of Professional Journalists’ Code of Ethics by repeatedly defaming her. “I want him to stop,” MacDonald said in an interview Wednesday.

With a doggedness that verges on obsession, the site covers just one story — the case of Sandra Grazzini-Rucki, whose children went missing for 944 days until they were found on a northern Minnesota ranch.

Grazzini-Rucki and MacDonald’s 2014 Supreme Court campaign manager, Dede Evavold, both were convicted on six felony counts related to the case. The criminal prosecutions ended two years ago; yet the site has barely slowed its coverage.

There could be a reason for that: Brodkorb and his co-author Allison Mann say they are writing a book about the case and expect to make an announcement about its publication in the coming weeks.

MacDonald’s complaint alleges that site repeatedly has made “false and defamatory” references to her as a “person of interest” in the Grazzini-Rucki case. It also alleges that the site keeps publishing what MacDonald calls a “false image” of herself.

A third count involves a 2013 traffic stop that she says Brodkorb has misrepresented publicly.

‘Person of interest’

MacDonald’s complaint says Brodkorb’s site perpetuates “a lie” when it repeatedly labels her a onetime “person of interest” in the 2013 disappearance of Grazzini-Rucki’s two daughters.

MacDonald alleges that Brodkorb has ignored demands to stop using the descriptor. She was never a person of interest in the case, she insists.

“It’s defamation at this point,” the complaint says, quoting a text message from MacDonald to Brodkorb. “Pull it. These are your words. You labeled me, not them. It’s you. Take it down.”

By “them,” MacDonald means the Lakeville Police Department, which initiated the investigation into the kids’ disappearance. The complaint says MacDonald later contacted the department and was told that she was never considered a “person of interest” in the case.

She also claims that Star Tribune reporter Brandon Stahl, who first used that phrase in his reporting on April 29, 2015, stopped after she contacted him. She said the Star Tribune never again used the phrase.

Neither assertion appears to be true. The Star Tribune — both in Stahl’s reporting and in that of least one other beat writer, Karen Zamora — continued using the phrase long after April 29, 2015. One reference, in a Zamora story, was published as recently as July 29, 2016.

Meanwhile, a Lakeville Police investigator confirmed Thursday morning that investigators initially did consider MacDonald a “person of interest” in the children’s disappearance.

“We believed that she was in the know,” said Lakeville Police Lt. Jason Polinski. Investigators based that suspicion on MacDonald’s “statements and actions” at the time, believing she wasn’t “upfront” about what she knew.

“We believed she was involved and knew what was going on,” Polinski said Thursday. “However, we could never prove that. So she was never a suspect. But, yes, she was a person of interest.”

In an interview Wednesday, Brodkorb said he has been told the same thing by Lakeville police officials somewhere between six and 12 times while reporting the story.

“It’s the reality,” Brodkorb said. “What Michelle, I think, is doing here is she is trying to obfuscate from those underlying facts.”

False image

MacDonald’s suit also charges Brodkorb and his co-author Allison Mann with repeatedly posting a “false image” that she says inaccurately gets depicted as her booking photo.

The photo was taken after a bizarre incident in a Dakota County courtroom on Sept. 12, 2013, during a child custody hearing. MacDonald said she was there representing Grazzini-Rucki, several months after the girls went missing.

In court that day, MacDonald got arrested and was led away by deputies after she took photos in the courtroom against court rules. Video shows that, about a half hour later, she was brought back into court in a wheelchair — she had reportedly refused to stand up and walk back into court on a judge’s order. She was also handcuffed.

MacDonald admits a photo was taken after that incident, but that she was never “booked” into custody, despite spending the night in jail. Therefore, Brodkorb and his site defame her reputation by repeatedly calling it a “booking photo” or “mug shot,” she says.

“I would check into that a little bit,” MacDonald said Wednesday. “Because I am telling you that’s a lie.”

She appears to be incorrect. On Thursday morning, a Dakota County Sheriff’s Department spokesperson found the same image on the county jail’s booking photo database. The image, which the county spokesperson confirmed is a booking shot, was forwarded to Minnesota Lawyer.

“The photograph is not a mug shot,” MacDonald insists. “[Brodkorb] had that surface. It had never surfaced before.”

That leads to a weird twist in the story. On May 25, MacDonald filed a complaint against Brodkorb with Eagan police in connection with the photo.

An officer’s report of that incident, obtained by Minnesota Lawyer, says MacDonald told the cop that Brodkorb himself took the photo, then uploaded it to a public mugshot website, arrestedinminnesota.com—a site that can no longer be found online.

From there, she told the officer, Brodkorb posted the picture to his own website and began misrepresenting it as a booking photo, according to the police report.

But Lakeville Police Officer Mike Reuss said in that report that he found the image on a law enforcement database and judged it to be public-record booking photo. In that report, however, he mislabeled it as a DUI booking photo.

MacDonald’s “criminal defamation” complaint was never investigated.

MacDonald said Wednesday that Reuss misrepresented what she told him. “I never said that to the police officer, I never said it to Brodkorb,” MacDonald said. “It’s a lie.”

That’s “classic Michelle MacDonald,” said blogger Mann. “Everything gets so tangled into this web that she weaves,” Mann said.

Traffic stop

MacDonald’s lawsuit also asserts that Brodkorb falsely alleged in a 2016 tweet that she was once convicted for driving while intoxicated. She was charged with DUI following a 2013 traffic stop in Rosemount, but was never convicted on that charge.

She was, however, convicted on a gross misdemeanor count of refusing to submit to a sobriety test and two misdemeanor counts—obstructing the legal process and speeding—in connection with that traffic stop.

Minnesota Lawyer could not find the Brodkorb tweet she alludes to and he says he has never made that claim. “I can find no record whatsoever that I ever said in my reporting that she was convicted of DUI,” he said.

MacDonald is a candidate for Minnesota Supreme Court who was conditionally reinstated as an attorney in April following disciplinary action in January. Her suit against Brodkorb and his MissingInMinnesota.com website charges “defamation per se” and “defamation by implication.”

MacDonald said she thinks that Brodkorb’s website has a vendetta against her and Grazzini-Rucki, one that is financed by David Rucki. She notes that Mann is a paralegal in the office of Lisa Elliott, an attorney who represents David Rucki. Mann confirms that.

However, Brodkorb and Mann both insist that they get no financing from Elliot’s client. “This is all an independent endeavor,” Brodkorb said.

MacDonald seeks damages in excess of $50,000, removal of the photo and an order directing Mann and Brodkorb to “cease their wrongful conduct,” among other remedies.

The case was initially filed in both Dakota County and Ramsey County. The Dakota County case, which MacDonald said was filed in error, was dismissed on Aug. 20.

It will proceed in Ramsey County District Court on Sept. 10 in the courtroom of Judge Richard H. Kyle.

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Campaign: Keith Ellison on track for active license

Opponent says DFLer lacks 180 credits, but earning half 

Campaign: Keith Ellison on track for active license

By: Kevin Featherly August 30, 2018 2 Comments

Though his law license is not active, DFL attorney general candidate Keith Ellison has completed the 45 hours of continuing legal education credits needed to get it reactivated, according to a campaign spokesman.

Ellison also has filed a plan with the state Board of Continuing Legal Education that commits him to an additional 45 hours of CLE training, said Sam Fettig, Ellison’s communications coordinator.

Though she wouldn’t comment specifically on Ellison, CLE Board Director Emily Eschweiler confirmed that those two steps would put an attorney on track to reviving a voluntarily inactivated law license.

Ellison’s license to practice has become something of a conservative meme. It was broached during Sharon Anderson’s unsuccessful primary bid for attorney general. She filed a petition with the Lawyers Professional Responsibility Board to revoke Ellison’s eligibility because he lacked CLE credits and carried an inactive license. But Anderson said last month that effort had failed.

Ellison’s general election opponent, Republican Doug Wardlow, took the issue up on Monday. A Wardlow press release claims that Ellison “surrendered” his law license and then falsely stated that members of Congress must give up law licenses upon taking the oath of office.

Wardlow also maintains that Ellison has a 180-hour deficit in his CLE requirements.

“It could take Keith Ellison years to take all the make-up classes he would need to get his law license back,” the campaign said in a press release. “He may never be able to practice law in Minnesota again.”

Based on information supplied by the CLE Board, however, that statement likely is incorrect.

Potentially moot

Ellison voluntarily inactivated his Minnesota law license, according to the Lawyers Professional Responsibility Board, though it doesn’t indicate precisely when. The LPRB website confirms he is currently unauthorized to practice law in Minnesota.

But that is not unusual, according to Eschweiler. Many lawyers who leave the state or take jobs in other fields voluntarily deactivate their law licenses, she said.

Ellison is not even Minnesota’s only congressional member to voluntarily do so. U.S. Sen. Amy Klobuchar, the former Hennepin County attorney, also has inactivated her law license. U.S. Rep. Tom Emmer, admitted to the bar in 1988, is likewise unauthorized to practice law in Minnesota. His status is listed as “resigned.”

Being on voluntary restricted status essentially means that an attorney has elected not to keep up with CLEs, Eschweiler said. “Voluntary restricted is considered to be inactive but in good standing,” she said.

It is not clear if Wardlow’s 180-hour tally of unfulfilled CLE credits is accurate. The total is based on a belief that Ellison’s gave up his license in 2012, according to the press release. But Wardlow’s spokesman Billy Grant said Monday that it might have been deactivated as early as 2006. So Ellison might lack an even more credits, he said.

Either way, it likely won’t matter. To fulfill all his commitments, Ellison likely would need to earn no more 90 total CLE credits.

Rule 12 of the Continuing Legal Education Board’s rules does state that to be automatically transferred to active status, attorneys must make up all unfulfilled CLE hours. But automatic transfers aren’t the only path to reinstatement.

Rule 12 also permits a “discretionary transfer,” which allows the CLE board director to activate a license without forcing the attorney to make up every missing credit hour. There are guidelines to follow, Eschweiler said, but it can be done.

“What the rule states is that lawyers can come back to active status upon taking 45 credits,” Eschweiler said. “Then they would have a number of credits to make up in addition to that—up to 90 credits.”

Of the initial 45, three must be ethics credits and two bias-training credits, she said; no more than 15 can be on-demand. Once the first block of 45 credits is complete, the attorney must submit a plan to earn the remaining 45, she said. The lawyer has up to a year to complete them, Eschweiler said.

So even if Wardlow is right and Ellison skipped 180 CLE credits after going to Washington, he likely can get by making up just half that many—90—exactly the number Fettig says Ellison has committed to earning.

David Schultz, the Hamline University professor and six-year former CLE board member, said he sees nothing strange going on there. Lawyers often were allowed to avoid earning all missing credits when he was on the board a decade ago, he said.

“I never recall telling somebody that you had to basically make up for all the credits for all the years that you weren’t active,” Schultz said.

Strict rules

Wardlow’s assertion Monday that Ellison falsely claimed Congress requires lawyers to surrender their licenses could not be verified. As evidence for the claim, Grant forwarded a snippet from a Detroit Lakes newspaper.

It reads: “Congressmen are not allowed to continue practicing law, so Ellison let his law license lapse and will earn continuing education credits at the University of Minnesota to get it fully reinstated.”

Grant suggested that passage backs up the Wardlow campaign’s charge that Ellison lied. But the story does not actually attribute the passage to Ellison.

In Monday’s press release, Wardlow said that the clerk of the U.S. House does not require licensed professionals with House seats—be they lawyers, doctors or electricians—to surrender their licenses before taking the oath of office.

Yet several parts of the U.S. House Ethics Manual could lead lawyers in Congress not to commit the time needed to maintain home-state CLE requirements.

Pages 197-98 of the manual’s 2008 edition say that lawyers’ fiduciary duties make continued representation of clients “particularly susceptible to conflicts with the wide-ranging responsibilities of members.”

On pages 214-215, the manual states that U.S. House members are prohibited “from engaging in professions that provide services involving a fiduciary relationship, including the practice of law.”

None of that suggests lawyers must stop practicing law upon entering Congress, Grant said in an email Tuesday. “Members of Congress can practice law pro bono,” he wrote.

That may be true, Schultz said, but pro bono work does not relieve lawyers of their fiduciary responsibilities or the conflicts associated with them. Regardless, the professor said, rules against congressional members holding outside jobs generally have been in place for generations. That’s why lawyer-legislators in Congress frequently ask to have law licenses voluntarily inactivated, he said.

“Especially if they have CLE requirements, they’ll just ask for a suspension of the license,” he said. “So it is not uncommon at all for this to occur.”

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