Curious ruling on the order of operations in disposing of defamation claims - consider state law first, then Times v. Sullivan

In Hugger v. The Rutherford Institute, the court of appeals affirmed denial of remand finding there was diversity jurisdiction, affirmed summary judgment on the intentional and negligent infliction of emotional distress claims, and reversed on the defamation claim, concluding that the trial court had addressed the defamation issues in the wrong order, and should have ruled on the state law of defamation before reaching the NY Times v. Sullivan malice standard.

The case involves the intervention of John Whitehead and the Rutherford Institute into a classroom matter at a school in North Carolina. The Rutherford Institute issued a press release titled "Sixth Grader Punished for Refusing to Curse in Class." Eventually, the sixth grader recanted her story, and the school officials sued Whitehead and the institute in state court.

The removal issue was decided on the basis of fraudulent joinder - the NC defendant was held to be a sham defendant, against which plaintiffs had no claim. On the emotional distress claims, there was not enough evidence of emotional distress (always a good issue in the Fourth Circuit). On the defamation claim, the court of appeals held that the trial court erred by proceeding to determine first whether the plaintiff school officials were public figures (as I would have thought they were). The panel held that the trial court should have first addressed "the state law question of whether Hugger and Settle proffered sufficient evidence to establish a claim of defamation under North Carolina law," under the rule from Bell Atl. Md., Inc. v. Prince George’s County, Md., 212 F.3d 863 (4th Cir. 2000) that it is reversible to proceed first on the constitutional question.

Geez, that sounds like a mess to me. I thought the "malice" standards were incorporated into the state law, at least in Virginia - the question of whether was defamation is affected by what level of deliberateness lay behind the publication of the false information, and that in turn is a function of whether or not the plaintiff is a public figure. I like the rule from the case of DiMeglio v. Haines, a qualified immunity case from some years ago, which said basically (in a somewhat analogous context, although state law claims were not involved) the court ought to take the shortest route to summary judgment. The Bell Atlantic case was a preemption challenge to state ordinance, and Judge Widener's opinion quite reasonably reversed because the state law issues were not addressed.

In Virginia, the courts have "harmonized" the state law of defamation with the constitutional requirements. Great Coastal Exp., Inc. v. Ellington, 230 Va. 142, 149, 334 S.E.2d 846, 851 (1985). I've sought summary judgment in federal court on state law defamation cases in Virginia and always argued public figure first (which is often easy when government employees are the plaintiffs), then tried to win out on lack of actual malice. This opinion makes me think I've been going about it the wrong way, but I don't see that the state law of defamation necessarily provides the adequate and independent grounds for a decision, when the state law liability standard and the constitutional standard have been merged.

(By the way, Whitehead himself did not argue the case on behalf of himself and the Rutherford Institute; they were represented by a lawyer named Thomas Neuberger from Wilmington, Delaware.)