Kevin Pack v. Truth Publishing Company, Inc., and John S. Dille III

FILED
Apr 23 2019, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
James E. Ayers Robert B. Thornburg
Wernle, Ristine & Ayers Maggie L. Smith
Crawfordsville, Indiana Frost Brown Todd LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kevin Pack, April 23, 2019
Appellant-Plaintiff, Court of Appeals Case No.
18A-PL-1742
v. Appeal from the Elkhart Superior
Court
Truth Publishing Company, Inc., The Honorable Kristine A.
and John S. Dille III, Osterday, Judge
Appellees-Defendants. Trial Court Cause No.
20D01-1701-PL-15
Najam, Judge.
Statement of the Case
[1] Kevin Pack appeals the trial court’s entry of summary judgment for the Truth
Publishing Company and John S. Dille III, the owners of The Elkhart Truth
newspaper (collectively, “the Newspaper”). The trial court entered summary
judgment after the Newspaper moved to dismiss Pack’s defamation complaint
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under Indiana’s Strategic Lawsuit Against Public Participation Act, Ind. Code
§§ 34-7-7-1 to -10 (2018) (“the Anti-SLAPP statutes”). Pack raises five issues
for our review, 1 which we consolidate and restate as the following two issues:
1. Whether the Newspaper’s publication was in connection
with a public issue.
2. Whether the Newspaper’s publication was taken in good
faith and with a reasonable basis in law and fact.
[2] We affirm.
Facts and Procedural History 2
[3] In August of 2013, Kevin Pack, an atheist, began teaching German at
Northridge High School (“NHS”) in Middlebury on a probationary contract.
Shortly after beginning his employment, Pack became the subject of various
complaints by parents, students, and faculty. The complaints alleged that Pack
had used profanity in class and had utilized films and literature that contained
sexual content. Additionally, students alleged that Pack’s lack of respect,
organization, and guidance made it difficult to learn. Other NHS employees
1
Pack’s brief on appeal appears to be premised on the elements of his defamation claim rather than showing
whether the Newspaper designated evidence to establish an affirmative defense under the Anti-SLAPP
statutes, which has made the merits of his arguments on appeal difficult to discern. Further, several of Pack’s
arguments on appeal appear to relate to damages. As the Newspaper points out, those arguments do not,
even if true, “defeat application of the Anti-SLAPP” statutes. Appellees’ Br. at 40.
2
We held oral argument on March 28, 2019, in the Indiana Court of Appeals courtroom.
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also complained of Pack’s tardiness and absences from school and school
functions.
[4] On February 24, 2014, Gerald Rasler, NHS’s principal, issued to Pack a
“Notice of Preliminary Decision of Immediate Cancellation of Contract.”
Appellant’s App. Vol. II at 33. That notice cited Pack’s alleged “immorality,
insubordination, neglect of duty, and other just cause” as reasons to support the
immediate cancellation of Pack’s contract. Id. On February 28, Pack requested
a private conference with Jane Allen, NHS’s superintendent. Following that
conference, Allen recommended the termination of Pack’s contract to the Board
of Trustees of Middlebury Community Schools (“the School Board”), and Pack
requested a hearing with the School Board.
[5] On April 1, the School Board held a hearing at which Pack and his union
representative were present. The next day, the School Board terminated Pack’s
employment. The School Board explained its decision with more than seventy
findings of fact, which included the following findings:
19. Mr. Pack showed a movie titled “Lola Rennt” (“Run Lola
Run”) to his Level One (1) German class, made up primarily of
freshmen and sophomores who are under the age of seventeen
(17).
20. “Lola Rennt” is rated R in the United States.
21. “Lola Rennt” features scenes which represent two (2)
individuals engaging in sadomasochism. The individuals are
wearing tiny leather costumes. The male is pictured bent over a
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sofa, wearing nothing but a dog collar and a leather thong. The
female is wearing leather lingerie while holding the male on a
leash and winding up to strike him with a whip.
22. “Lola Rennt” contains multiple spoken swear words,
including “F[**]k,” “F[*****]g B[***]h,” “D[**]n,” and “S[**]t.”
23. Several students expressed concerns to building level
administrators and [to] their parents about struggles with their
command of the German language due to a lack of review/lack
of proper teaching methods to become familiar with the German
language . . . .
24. Students expressed that they felt disrespected by Mr. Pack[]
because he laughs at students’ answers.
25. Students mentioned that Mr. Pack will occasionally yell or
get angry if a student does not know the correct answer to a
question.
26. Students reported that Mr. Pack will occasionally interrupt
the students, sometimes with a comment that is irrelevant to
what is being discussed in class.
***
28. Students complained that Mr. Pack’s lack of organization
and guidance often made it difficult to follow what was
happening in class.
29. Students stated that the curriculum is confusing[] because
they are never sure what they are going to learn in class or when
to take notes.
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30. Students stated that Mr. Pack has created a negative
atmosphere where many students do not plan on taking future
German classes at NHS.
***
36. Several students complained that Mr. Pack tests and quizzes
them over topics never covered in class.
37. Students stated that Mr. Pack occasionally leaves the
classroom during student presentations.
38. Several students stated that Mr. Pack has used swear words
in front of students, using the words “F[**]k” and “G[*]d
D[**]n.”
39. Students stated that Mr. Pack told the class an inappropriate
Jewish joke during a lesson over the Holocaust.
40. Several students stated that they received A’s and/or A+’s
for work which they had never completed.
41. Several students complained that Mr. Pack loses students’
work.
42. Several students complained that[,] when Mr. Pack gave the
semester final exam, he allowed the students to grade their own
exams. This exam was a common assessment that was required
by NHS to be given to all Level Two (2) German students. The
results of this exam were used to assess how well the students
were performing in German class.
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43. Parents expressed concern to Mr. Rasler that their children
had fallen behind and would like a plan for those of Mr. Pack’s
students who would like to continue taking German . . . with
another teacher.
44. Parents expressed concern to Jane Allen that their children
had asked their permission to drop plans of taking future German
classes due to their experiences in Mr. Pack’s class.
45. Parents stated that they were forced to purchase Rosetta
Stone German . . . for their children’s supplemental studies due
to their lack of progress in Mr. Pack’s class.
***
50. On December 10, 2013, students brought a book down to
[another NHS German teacher’s] classroom titled (in German),
something along the lines of “All the German You Were Never
Taught in School.” The book featured nude drawings, foul
language, and sexual content (even involving animals). The
students said that Mr. Pack had pointed the book out to them at
the beginning of the year and leaves it out for perusal on his
counter. . . .
***
58. On December 12, 2013, several students reported getting the
mid-term exam with answers given to them.
Id. at 34-38 (citations omitted). Based on those and other findings, the School
Board concluded as follows:
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1. Based on the statements of fact[], Mr. Pack’s actions
constitute immorality.
2. Based on the statements of fact[], Mr. Pack’s actions
constitute insubordination.
3. Based on the statements of fact[], Mr. Pack’s actions
constitute neglect of duty.
4. Based on the statements of fact[], other just cause justifies the
immediate cancellation of Mr. Pack’s Contract.
Id. at 40.
[6] Following its decision to terminate Pack’s employment, the School Board
authorized a press release to explain its decision. The press release stated that
Pack “d[id] not meet [the School Board’s] expectations” of being “proficient
and try[ing] to do [his] best when educating our students.” Id. at 43. The press
release further stated that Pack was “a poor teacher[] whose overall
performance regressed throughout the school year and showed no potential for
improvement.” Id.
[7] On January 15, 2015, Pack filed a lawsuit against the Middlebury School
Corporation in federal district court in which he alleged that his employment
had been terminated, in violation of his federal rights, based on his atheism.
Jeff Parrott, a reporter for the Newspaper, learned of Pack’s federal complaint
soon thereafter. He then reviewed Pack’s filings in the federal court and the
School Board’s press release. He also requested the School Board’s findings
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from Allen pursuant to Indiana’s Access to Public Records Act, I.C. §§ 5-14-3-1
to -10 (“APRA”), and Allen provided him with those findings. Parrott further
interviewed Pack and Allen, and he received a written statement from Pack’s
attorney.
[8] On January 24, the Newspaper published on its website an article authored by
Parrott and entitled, “Fired Northridge teacher, an atheist, sues Middlebury
Community Schools for religious discrimination.” Appellant’s App. Vol. II at
25. The article discussed the events leading up to Pack’s termination and
Pack’s resulting federal lawsuit. The second sentence of the article stated that
“the school corporation maintains it fired German teacher Kevin Pack for
insubordination, immorality[,] and incompetence.” Id. (emphasis added).
[9] After the article’s publication, Pack contacted Parrott and asserted that Parrott
had incorrectly used the term “incompetence” as that specific word had not
been recited by the School Board as one of its four reasons for terminating
Pack’s employment. Pack further informed Parrott that “incompetence” as it
relates to the termination of a high school teacher has a specialized meaning,
and Parrott’s use of the word in an online article would make it harder for Pack
to find reemployment. However, despite Pack’s request, the Newspaper refused
to retract its use of the word “incompetence” as it related to the termination of
Pack’s employment at NHS.
[10] Pack then sued the Newspaper for defamation. In particular, he asserted that
the article incorrectly challenged his competence as a teacher, that the
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Newspaper “knew [the use of that word] to be untrue,” and that, in using that
word, the Newspaper “calculated” that it would “cause great injury” to Pack.
Id. at 15. In response, the Newspaper moved to dismiss Pack’s complaint under
the Anti-SLAPP statutes.
[11] The trial court directed the parties to engage in discovery on the Newspaper’s
motion. Thereafter, the Newspaper designated the following evidence in
support of its motion: the online article; an affidavit by Parrott; and an affidavit
by Allen, to which she had attached the School Board’s findings in support of
its termination decision as well as the press release. In his affidavit, Parrott
stated:
In writing the Article, I interviewed Pack and . . . Allen and
received an email statement from Pack’s attorney . . . . I also
reviewed the documents filed with the Court in Pack’s federal
lawsuit, [the School Board’s] Findings of Facts and Conclusions
[terminating Pack’s employment,] and the Press Release . . . .
Id. at 46-47. And, in her affidavit, Allen stated that she gave the School Board’s
findings to Parrott “[i]n response to [his APRA] request . . . .” Id. at 31.
[12] Pack designated his own affidavit as well as the affidavit of James A. Tucker,
an expert on secondary education and employment. Tucker stated in relevant
part as follows:
12. Any press release by [a] school corporation [explaining a
teacher’s dismissal] requires specificity. It is thereby[] the
obligation of the press to accurately restate and relay the specifics
for the stated reasons of a teacher’s dismissal. . . . Reasons for
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dismissal are given in the language of the statute. This language
is not open to interpretation from the press or generalizations of a
reporter, such as Parrott’s thoughts and interpretations . . . .
***
14. The Middlebury School Corporation Superintendent[,
Allen,] was wrong to release the confidential [findings]
determined by the Board for Pack’s dismissal to Parrott, the
reporter. But that release provides concrete and specific proof of
the reasons for the dismissal. Parrott did not quote the reasons as
stated. His article uses the term, incompetence. By so doing,
Parrott has placed on the “web” as factual that Pack was
dismissed for a specific statutory reason that was no[t] listed. As
a result, any potential employer who googles Pack’s name will
see from that article that Pack was found by the Board to be, and
therefore, is an incompetent teacher. It displays to any potential
employer that Mr. Pack is incompetent as so proven by
Middlebury School Corporation.
***
16. . . . Since incompetence takes on a special meaning in the
dismissal of any teacher, only the facts should be disseminated to
the public. . . . Middlebury School Corporation did not find him
to be incompetent, it did not seek to have Pack’s teaching license
revoked. . . .
***
18. As a result of Parrott’s article, in my opinion, Mr. Pack’s
teaching career is over. It is just as catastrophic as though the
school corporation had sought and obtained revocation of Pack’s
teaching license, which there is no basis in the Board’s records to
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support. Educators do not view “incompetence” the same as
“neglect of duty.” Being late for class, or entering by the wrong
door is not incompetence, it is neglect of duty. Middlebury
School Corporation made that conscious distinction by not using
the term, incompetence.
***
24. . . . Parrott is an educated and experienced man, [and] it is
my belief that he knew exactly what he was writing and the
ramifications of that writing. Had Parrott quoted the school
corporation materials, he would not have written the article in
such a way as to declare Pack to be incompetent. It is not the
place or right of the press to use language different than that
which they are given by the school corporation, if that language
has a specific meaning and is harmful to the person, and the
reporter understands and intentionally writes such language. . . .
Id. at 83-87.
[13] After receiving the parties’ designated evidence and holding a hearing, the trial
court entered summary judgment for the Newspaper under the Anti-SLAPP
statutes. This appeal ensued.
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Discussion and Decision
The Anti-SLAPP Statutes and Our Standard of Review
[14] Indiana’s Anti-SLAPP statutes apply “to an act in furtherance of” a person’s 3
“right of . . . free speech . . . in connection with a public issue or an issue of
public interest . . . .” I.C. § 34-7-7-1(a). The statutes provide:
a defense in a civil action against a person that the act or
omission complained of is:
(1) an act or omission of that person in furtherance of the
person’s right of . . . free speech . . . in connection with a
public issue; and
(2) an act or omission taken in good faith and with a
reasonable basis in law and fact.
I.C. § 34-7-7-5. Thus, the Anti-SLAPP statutes create an affirmative defense.
To demonstrate that defense, the moving party must show: (1) that its
complained-of act “was in furtherance of the person’s right of . . . free speech”; 4
(2) that the act “was in connection with a public issue”; and (3) that the act
“was taken in good faith and with a reasonable basis in law and fact.” Gresk ex
rel. Estate of VanWinkle v. Demetris, 96 N.E.3d 564, 569 (Ind. 2018) (citations and
quotation marks omitted).
3
“Person” under the Anti-SLAPP statutes includes “[a]ny . . . legal entity.” I.C. § 34-7-7-4.
4
There is no dispute in the instant appeal that the Newspaper’s publication of the article was an act in
furtherance of the Newspaper’s right of free speech.
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[15] Where, as here, a civil defendant moves to dismiss a pleading under the Anti-
SLAPP statutes, the trial court “shall . . . [t]reat the motion as a motion for
summary judgment” and establish an expedited schedule for discovery and
argument on that motion. I.C. § 34-7-7-9(a). As our Supreme Court has made
clear:
[w]e review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to
“demonstrate [ ] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
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Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some
alterations original to Hughley). Summary judgment in Indiana is an
intentionally “high bar” that “consciously errs on the side of letting marginal
cases proceed to trial on the merits[] rather than risk short-circuiting meritorious
claims.” Id. at 1004.
[16] Pack asserts that the trial court erred when it entered summary judgment for the
Newspaper under the Anti-SLAPP statutes for two principal reasons. First, he
asserts that the Anti-SLAPP statutes do not apply here because the
Newspaper’s publication of the article was not in connection with a public
issue. He also asserts that the designated evidence creates a genuine issue of
material fact as to whether the Newspaper’s publication of the article was taken
in good faith and with a reasonable basis in law and fact. We address each of
Pack’s arguments in turn.
Issue One: Whether the Newspaper’s Publication
of the Article was in Connection with a Public Issue
[17] We first address Pack’s assertion that “[t]his is a not a SLAPP situation”
because no public issue is involved. Appellant’s Br. at 12. Our Supreme Court
has held that “speech is in connection with a matter of public concern if it is
addressed to any matter of political, social, or other concern to the community,
as determined by its content, form, and context.” Gresk, 96 N.E.3d at 571
(quotation marks omitted). In Gresk, the court held that the Anti-SLAPP
statutes did not apply to a physician’s report of child abuse to the Indiana
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Department of Child Services (“DCS”) because that report was premised on the
physician’s legal obligations, not “any intent to facilitate debate.” Id. at 569-70.
[18] The Newspaper’s designated evidence in support of its motion under the Anti-
SLAPP statutes shows that its publication of the article addressed a matter of
concern to the local community. In particular, the content, form, and context
of the article demonstrate that the Newspaper published it to inform the
community of a federal lawsuit filed against a local public school corporation,
which lawsuit alleged that the school corporation had engaged in religious
discrimination. As such, the Newspaper’s designated evidence established a
prima facie showing that its publication of the article was in connection with a
public issue.
[19] In response, Pack asserts that a genuine issue of material fact exists as to
whether the publication was in connection with a public issue for three reasons.
First, he asserts that the publication was not in connection with a public issue
because about nine months had passed between Pack’s termination from NHS
and the Newspaper’s publication of the article. But Pack’s federal lawsuit
against the Middlebury School Corporation, not his termination from NHS,
was the impetus for the article, which the Newspaper published less than ten
days after Pack had filed his federal lawsuit. Pack’s termination from NHS was
simply context in the article for his federal lawsuit. Accordingly, we reject
Pack’s first argument.
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[20] Second, Pack asserts that the Newspaper’s publication of the article was not in
connection with a public issue because, according to Pack, in writing the article
Parrott relied in part on confidential information, namely, the School Board’s
findings. We also reject this argument. Although we explain in Issue Two that
Pack has failed to show on appeal that the School Board’s findings were
confidential here, for purposes of whether the Newspaper published the article
in connection with a public issue we need only note that whether the findings
were or were not confidential is irrelevant. That is, whether Parrott relied on
any confidential information in writing the article is neither here nor there with
respect to whether the Newspaper’s publication of the article was in connection
with a public issue. Cf. New York Times Co. v. United States (Pentagon Papers), 403
U.S. 713, 714 (1971) (per curiam) (permitting the publication of classified
information). Thus, this argument is a nonstarter.
[21] Third, Pack asserts that the Anti-SLAPP statutes do not apply because the facts
here are analogous to those in Gresk. But we do not see any meaningful
comparisons between the instant facts and the facts in Gresk. In Gresk, our
Supreme Court held that a physician’s legally mandated report of suspected
child abuse to DCS was not a report protected by the Anti-SLAPP statutes. 96
N.E.3d at 569-70. Nothing about a newspaper’s publication of an article
regarding a federal religious-discrimination lawsuit against a local public school
corporation is on par with the facts of Gresk, and we reject Pack’s argument
accordingly. Hence, we hold that Pack failed to rebut the Newspaper’s showing
that its publication of the article was in connection with a public issue.
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Issue Two: Whether the Newspaper’s Publication
was Taken in Good Faith and with a
Reasonable Basis in Law and Fact
[22] We thus turn to whether the designated evidence demonstrates as a matter of
law that the Newspaper’s publication was taken in good faith and with a
reasonable basis in law and fact. “In the context of defamation law, ‘good
faith’ has been defined as a state of mind indicating honesty and lawfulness of
purpose; belief in one’s legal right; and a belief that one’s conduct is not
unconscionable.” 401 Pub. Safety v. Ray, 80 N.E.3d 895, 900-01 (Ind. Ct. App.
2017) (citing Nexus Grp., Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119, 122
(Ind. Ct. App. 2011)), trans. denied. That standard can be shown by evidence
that demonstrates that the Newspaper “did not entertain serious doubt
regarding the truth” of its article; that the Newspaper “believed that the
statements and opinions expressed in it were fair and reasonable” at the time of
its publication; and that, in writing the article, the Newspaper based its
information on “reliable sources.” CanaRx Servs., Inc. v. LIN Television Corp.,
2008 WL 2266348, at *7 (S.D. Ind. 2008).
[23] On the other hand, our Supreme Court has identified five scenarios in which
the evidence will not demonstrate good faith:
(1) where a story is fabricated by the defendant; (2) where the
story is the product of defendant’s imagination; (3) where the
story is based wholly on an unverified anonymous telephone call;
(4) where the defendant’s allegations are so inherently
improbable that only a reckless person would have put them in
circulation; and (5) where there are obvious reasons to doubt the
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veracity of the informant or the accuracy of the informant’s
reports.
Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 446, 462 n.27 (Ind. 1999)
(quoting St. Amant v. Thompson, 390 U.S. 727, 732 (1968)).
[24] We hold that the Newspaper’s designated evidence established a prima facie
showing that its publication of the article was taken in good faith and with a
reasonable basis in law and fact. There is no dispute that, in writing the article,
Parrott spoke to Pack and received an email statement from Pack’s attorney.
See Appellant’s App. Vol. II at 88-89. Parrott’s affidavit also states that, in
writing the article, he spoke to Allen; he relied on the School Board’s publicly
available press release; he relied on the School Board’s findings, which he had
obtained by way of an APRA request; and he relied on Pack’s filings in the
federal district court. In other words, Parrott based the article on reliable
sources; the article was not fabricated, the product of Parrott’s imagination,
based on unverified anonymous sources, or based on sources wholly lacking in
credibility.
[25] The School Board’s press release, on which Parrott relied in part, stated that
Pack had been terminated from his employment at NHS because Pack was not
“proficient” and was “a poor teacher[] whose overall performance regressed
throughout the school year and showed no potential for improvement.” Id. at
43. And the School Board’s numerous findings, on which Parrott also relied in
part and which were also designated to the trial court by the Newspaper
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without objection, provided numerous examples that supported the School
Board’s summary in the press release.
[26] The Newspaper had no reason to and did not entertain serious doubts regarding
the truth of its article. Indeed, the Newspaper had no reason to reach any
conclusion other than the conclusion that the statements and opinions
expressed in the article were fair and reasonable. “Incompetence” commonly
means the “lack of ability to do something successfully or as it should be done.”
Incompetence, Cambridge Advanced Learner’s Dictionary & Thesaurus, available
at https://dictionary.cambridge.org/us/dictionary/english/incompetence (last
visited April 16, 2019). The School Board’s press release expressly said that
Pack had not been proficient, and “incompetence” is a well-accepted antonym
for “proficient.” E.g., Roget’s Int’l Thesaurus 317, 319 (6th ed. 2001).
[27] Parrott’s use of the word “incompetence” fairly characterized and summarized
the School Board’s findings and decision to terminate Pack’s employment.
And there was nothing about Parrott’s use of that word in the context of Pack’s
termination “so inherently improbable that only a reckless person would” have
used that word. See Journal-Gazette, 712 N.E.2d at 462 n.27. The School
Board’s detailed findings underlying its termination decision support Parrott’s
use of that word in writing the article. Accordingly, the Newspaper’s
designated evidence in support of its motion under the Anti-SLAPP statutes
established a prima facie showing that its publication of the article was taken in
good faith and with a reasonable basis in law and fact.
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[28] Nonetheless, Pack asserts that his designated evidence creates a genuine issue of
material fact as to whether the Newspaper’s publication of the article was taken
in good faith and with a reasonable basis in law and fact for three reasons.
First, Pack asserts that the Newspaper lacked a reasonable basis in law to
publish the article because the Newspaper should have known that the School
Board’s findings were confidential. Pack likewise asserts that a reasonable fact-
finder could infer that the Newspaper’s publication of an article premised at
least in part on confidential information shows a lack of good faith.
[29] Pack’s first argument assumes and then turns on the purported confidentiality
of the School Board’s findings underlying its termination of Pack’s
employment. 5 But Pack has not demonstrated in this appeal that the School
Board’s findings were confidential, either as a matter of fact or as a matter of
law. 6 Indeed, as noted above, the impetus for the article was Pack’s federal
5
The Newspaper asserts on appeal that Pack’s arguments regarding the confidentiality of the School Board’s
findings were not raised in the trial court and, thus, are not available for appellate review. We disagree. At
the hearing in the trial court on the Newspaper’s motion under the Anti-SLAPP statutes, Pack argued that
Parrott’s reliance on apparently confidential materials in writing the article created a genuine issue of
material fact as to whether the Newspaper had acted in good faith and with a reasonable basis in law and fact
when it published that article. Tr. at 22-23.
However, at the oral argument before our Court, Pack for the first time appeared to suggest that Parrott could
not have relied on the School Board’s findings because those findings would not be admissible at trial.
Insofar as Pack’s argument here is that the admissibility, or not, of the findings goes to the question of good
faith, that argument has not been preserved for our review. Similarly, insofar as Pack’s argument here is that
the trial court erred in permitting the Newspaper to designate the School Board’s findings in support of its
motion under the Anti-SLAPP statutes, Pack did not object to that designation in the trial court and, thus, he
may not raise that issue for the first time on appeal.
6
We need not decide in this appeal whether as a matter of law the School Board’s findings were
confidential, but we note that Pack cites no authority for his proposition that they were. Instead, he cites
Indiana Code Section 20-28-3-0.5, but that statute says only that “teacher evaluation results . . . [are]
confidential and exempt from disclosure” under APRA. However, the School Board’s findings were issued
pursuant to the termination proceedings described in Indiana Code Sections 20-28-7.5-1 to -3, which
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lawsuit in which he had alleged religious discrimination in the termination of
his employment, and Parrott relied in part on Pack’s federal filings in writing
the article. In other words, whether or not the School Board’s findings in
terminating Pack’s employment were confidential, Pack put those findings at
issue when he sued the Middlebury School Corporation for unlawful
termination of his employment. Parrott’s reliance on the School Board’s
findings thus does not create a genuine issue of material fact as to whether the
Newspaper’s publication of the article was taken in good faith and with a
reasonable basis in law and fact. To the contrary, it only reinforces the
Newspaper’s showing that Parrott acted with reasonable diligence in writing the
article.
[30] Second, Pack asserts that Tucker’s affidavit creates a genuine issue of material
fact as to whether the Newspaper’s publication of the article was in good faith
when Parrott characterized and summarized the underlying documents from
the School Board. In particular, in his affidavit Tucker stated that Parrott had
no “right” to put the School Board’s findings into Parrott’s own words.
Appellant’s App. Vol. II at 87. Tucker similarly stated that a local school
corporation’s press releases are “not open to interpretation from the press or
generalizations of a reporter,” and that Parrott was required to simply “quote[]
the school corporation materials.” Id. at 83-84, 87. Tucker also said that he
thought Parrott “knew exactly what he was writing and the ramifications of
decisions are to be “evidenced by a signed statement in the minutes of the board” at the board’s next “public
meeting” after the hearing with the teacher whose employment has been terminated. I.C. § 20-28-7.5-3.
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that writing” in doing so. Id. at 87. In other words, Tucker appears to
challenge Parrott’s state of mind.
[31] But Tucker is not competent to testify to Parrott’s state of mind. Tucker does
not identify himself as having any experience as a journalist or training in
journalism. See id. at 80-87. As such, he is in no position to comment on
Parrott’s professionalism as a journalist. See Ind. Evidence Rules 701, 702.
Tucker’s opinions as to how a journalist should do his job would not be
admissible evidence at trial and, thus, we will not consider them on summary
judgment. See, e.g., Reeder v. Harper, 788 N.E.2d 1236, 1240 (Ind. 2003) (citing
Ind. Trial Rule 56(E)). We reject Pack’s second argument.
[32] Third, and last, Pack asserts that the Newspaper’s refusal to retract the use of
the word “incompetence” when confronted with the alleged mistake and its
potentially adverse impact on Pack’s employment opportunities infers the
Newspaper did not act in good faith. But Pack’s after-the-fact analysis is not
relevant. The act at issue is the Newspaper’s initial publication of the article
and whether that initial publication was in good faith. After-the-fact
information that could not have played any part in the Newspaper’s initial
publication decision does not matter to that analysis. Thus, we conclude that
Pack’s designated evidence fails to rebut the Newspaper’s prima facie showing
that its publication of the article was taken in good faith and with a reasonable
basis in law and fact.
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Conclusion
[33] In sum, we hold that the Newspaper’s designated evidence established a prima
facie showing that it was entitled to judgment as a matter of law under the Anti-
SLAPP statutes, and Pack’s designated evidence failed to create a genuine issue
of material fact. Accordingly, the trial court properly entered summary
judgment for the Newspaper, and we affirm the trial court’s judgment.
[34] Affirmed.
Mathias, J., and Altice, J., concur.
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