Can't PM and what is this Conversation thing?

[quincy]

A standard of review is the amount of deference (yielding in opinion or judgment) a court will give to a lower court's decision when reviewing that decision.

If there is a high standard of review in your case, that means that even if the Supreme Court may have decided your case differently, it will "defer" to the judgment of the lower court. The decision of the lower court will not be overturned unless the Supreme Court finds the decision was based on obvious error. If there is a low standard of review in your case, the Supreme Court will overturn the lower court's decision if there is ANY error in the lower court's decision.

In Michigan, there are generally three standards of review used by the courts. These are the "de novo" standard, the "clearly erroneous" (or clear and erroneous) standard, and the "abuse of discretion" standard.

With a de novo standard of review, the court will review the legal decisions made by the lower court and any evidence the parties present, and the Supreme Court will make its own decision on whether the lower court appropriately applied the law. It will, basically, look at the case in its entirety and make its own decision of the case based on what is presented. A de novo standard of review is applied only to questions of the law, and NO deference is given to the lower court's ruling. The decision made by the court is "independent" of any decision the lower court made.

The clear and erroneous standard of review applies to findings of fact made by the lower court. If a review of the case shows that the lower court erred in its findings of fact, and the court's decision was based in obvious contradiction to these facts, then the court may reverse the decision.

The abuse of discretion standard applies to evidentiary issues, and it is an abuse of discretion when the lower court does not apply correct law, or when the lower court makes its decision based on clearly erroneous findings of fact, or when the record shows that there is no evidence to support the lower court's decision. An abuse of discretion standard is applied when a lower court has made a "discretionary" ruling. Although judge's are allowed, and expected, to use their discretion, if the lower court's decision is based on an error of law, fact or evidence, it can be an abuse of this discretion.

See the following and check out, especially, page 12: http://courts.michigan.gov/SUPREMECOURT/Clerk/January2003/120256/120256-Appellant.pdf

 

[jci63]

The trial and appeals court excised the jury's role in your case, by assuming (based erroneously on the DNR witness testimony) that the publication unambiguously carried no defamatory meaning.

Your argument to the Supreme Court is that whether a statement injures a reputation depends on the opinions of those to whom it is published. The statements in the letters regarding your shooting of an albino deer should have been submitted to a jury to determine whether it was understood by the "common mind" to be defamatory.

With this argument what would be the best standard of review in your opinion?

Would any of the items in post 15, apply?

 

[Quaere]

A Trial Court’s decision on a motion for summary disposition is reviewed de novo. Auto Club Group Insurance Company v Burchell, 249 Mich App 468; 642 NW 2d 406 (2001). The Trial Court’s interpretation of a statute, which is a question of law, is also reviewed de novo. Miller v Mercy Memorial Hospital Corp, 466 Mich 196; 644 NW2d 730 (2002).

JCI, the case law you've listed above applies to the standard of the Court of Appeals review of the trial court's decision. You are now seeking review of the COURT OF APPEALS decision. The standard of review is de novo, but I don't believe the Supreme Court wants you to include a statement of the standard of review. Go over to the other neighborhood...I explained it all there.

 

[quincy]

The standard of review for the Supreme Court is de novo.

You can use the standards of review, however, to support your arguments on the issues. The court erred in its standard of review when making the decision about the defamatory nature of the statements in the letters and when making the decision on your public figure status, both of which were based on errors in law and errors in fact.

Therefore, at least in how I am reading the application briefs submitted to the Supreme Court for review, the decision by the judge to make a discretionary ruling on the defamatory nature of a statement that has two meanings was an abuse of discretion, based as his decision was on witness testimony and not on the law (the decision should have been left for a jury to decide), and the judge's decision to make a discretionary ruling on your public figure status was clear and erroneous, based as it was on statements made by the defendants and not on the facts (the facts, as you present them, show you were a private figure at the time the letters were written, and you sought "publicity" as a private figure as a means to correct the errors in the statements made by the letters, as is your only non-legal remedy as a private figure).

If you access what I cited above in Post #16, it will give you an idea of how to use the standards of review in your application to support your arguments.

You can consult with an attorney, and it may be wise to consult with an attorney, to verify anything and everything I say, by the way, as my job involves identifying defamatory statements and eliminating them prior to publication. Although my education includes all of the legal aspects of defamation, including defamation actions in court, I deal with prevention on a daily basis, not cure.

Edit to add:
Check the following cases out for standards of review -
Eggelston v Bio-Medical Applications of Detrot, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003) - "We review de novo the interpretation of a statute as a question of law."
People v Manning, 243 Mich App 615, 620 (2000) - clear and erroneous
United States v Griffith, 17 F3d 865, 877 (CA6, 1994) and People v Carpenter, 446 Mich 19, 60 n19 (1994) - de novo standard of review
People v Lukity, 460 Mich 484 (1994) - abuse of discretion

Flour Enter, Inc v Revenue Div, Department of Treasury, 477 Mich 170, 177 n3 (2007) - "a provision of the law is ambiguous only if it 'irreconcilably conflict' with another provision or when it is equally susceptible to more than a single meaning." (this would apply to the reading of 3.100 and its unambiguous statement about the killing and possession of albino deer)

 

[quincy]

These cases may have been mentioned before.

On issue in your appeal is whether the trial court abused its discretion in permitting the DNR officer to testify on the law. MRE 701 governs the testimony of a witness and he was not qualified as an expert. People v Daniel, 207 Mich App 47, 57; 523 NW2d 830 (1994). MRE limits a lay witness' testimony to opinions or inferences that are rationally based on the perceptions of the witness from direct physical observation. People v Hanna, 223 Mich App 466, 475; 567 NW2d 12 (1997)

Reversal is not required of the court unless "it affirmatively appears that the error asserted 'undermine the reliability of the verdict." Lukity, supra at 495, quoting People v Mateo, 453 Mich 203, 211; 551 NW 2d891 (1996).

 

[Quaere]

The standard of review for the Supreme Court is de novo.

The trial court in this case was not reviewing the decision of a lower court, agency, or tribunal, therefore it had no standard of review.

I don’t remember seeing anything to indicate the trial court got any facts wrong. The trial court made errors of law and abused its discretion.

I think the question of whether the plaintiff is a public figure is a question of law for the court

Quaere

 

[jci63]

Explaintion needed:

Heres my question:

The Court of Appeals stated "In Michigan, words that falsely impute the commission of a crime constitute defamation per se, and are actionable even in the absence of an ability to prove actual or special damages. MCL 600.2911(1)"

Can you explain these statements? and are actionable even in the absence of an ability to prove actual or special damages

These statements say nothing about being a private or limited public figure, just that the statements are 1) actionable and 2) actionable in the absence of an abiltity to prove actual damamges and 3) actionable in the absence of an abiltity to prove special damages.

How are the statements actionable?
Define actual damages
Define special damages
Any of these malice????????????

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MCL 600.2911 (1) Words imputing a lack of chastity to any female or male are actionable in themselves and subject the person who uttered or published them to a civil action for the slander in the same manner as the uttering or publishing of words imputing the commission of a criminal offense.

Court of Apeals Opinion (pg 6)
In Michigan, words that falsely impute the commission of a crime constitute defamation
per se, and are actionable even in the absence of an ability to prove actual or special damages. MCL 600.2911(1); Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 728; 613 NW2d 378 (2000); Tumbarella v Kroger Co, 85 Mich App 482, 493; 271 NW2d 284 (1978). At the time this action was filed, it was a criminal offense to hunt and kill albino deer in Michigan. See former DNR Order 3.100(2).4 Accordingly, plaintiff argues that defendants’ letters to the editor, which either directly or impliedly accused him of killing an albino deer, constituted defamation per se.

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MICHIGAN LIBEL LAW

REVISED JUDICATURE ACT OF 1961 (EXCERPT)
Act 236 of 1961


600.2911 Action for libel or slander.

Sec. 2911.

(1) Words imputing a lack of chastity to any female or male are actionable in themselves and subject the person who uttered or published them to a civil action for the slander in the same manner as the uttering or publishing of words imputing the commission of a criminal offense.

(2)(a) Except as provided in subdivision (b), in actions based on libel or slander the plaintiff is entitled to recover only for the actual damages which he or she has suffered in respect to his or her property, business, trade, profession, occupation, or feelings.

(b) Exemplary and punitive damages shall not be recovered in actions for libel unless the plaintiff, before instituting his or her action, gives notice to the defendant to publish a retraction and allows a reasonable time to do so, and proof of the publication or correction shall be admissible in evidence under a denial on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or punitive damages. For libel based on a radio or television broadcast, the retraction shall be made in the same manner and at the same time of the day as the original libel; for libel based on a publication, the retraction shall be published in the same size type, in the same editions and as far as practicable, in substantially the same position as the original libel; and for other libel, the retraction shall be published or communicated in substantially the same manner as the original libel.

(3) If the defendant in any action for slander or libel gives notice in a justification that the words spoken or published were true, this notice shall not be of itself proof of the malice charged in the complaint though not sustained by the evidence. In an action for slander or for publishing or broadcasting a libel even though the defendant has pleaded or attempted to prove a justification he or she may prove mitigating circumstances including the sources of his or her information and the ground for his or her belief. Damages shall not be awarded in a libel action for the publication or broadcast of a fair and true report of matters of public record, a public and official proceeding, or of a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, or for a heading of the report which is a fair and true headnote of the report. This privilege shall not apply to a libel which is contained in a matter added by a person concerned in the publication or contained in the report of anything said or done at the time and place of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, which was not a part of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body.

(4) A person against whom a judgment is recovered for damages arising out of the authorship or publication of a libel is entitled to recover contribution in a civil action from all persons who were originally jointly liable for the libel with the defendant or defendants, whether joined as defendants or not, to the same extent as and with the same effect that joint sureties are liable to contribute to each other in cases where they are sureties on the same contract. If the libel has been published in a newspaper, magazine, or other periodical publication or by a radio or television broadcast, the servants and agents of the publisher or proprietor of the periodical or radio or television station or network, and the news agents and other persons who have been connected with the libel only by selling or distributing the publication containing the libel and who have not acted maliciously in selling or publishing the libel, shall not be required to contribute and shall not be taken into account in determining the amount that any joint tort feasor is required to contribute under the provisions of this section. If the author of the libel acted maliciously in composing or securing the printing or the publication of the libel and the printer, publisher, or distributor of the libel acted in good faith and without malice in printing and publishing the libel, the author of the libel is liable in a civil action to that printer, publisher, or distributor for the entire amount of the damages which are recovered against and paid by that printer, publisher, or distributor.

(5) In actions brought for the recovery of damages for libel in this state, it is competent for the defendant or defendants in the action to show in evidence upon the trial of the action that the plaintiff in the action has previously recovered a judgment for damages in an action for libel to the same or substantially the same purport or effect as the libel for the recovery of damages for which the action has been brought, or that the plaintiff in the action has previously brought an action for the libel or has received or agreed to receive compensation for the libel.

(6) An action for libel or slander shall not be brought based upon a communication involving public officials or public figures unless the claim is sustained by clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether or not it was false.

(7) An action for libel or slander shall not be brought based upon a communication involving a private individual unless the defamatory falsehood concerns the private individual and was published negligently. Recovery under this provision shall be limited to economic damages including attorney fees.

(8) As used in this section, “libel” includes defamation by a radio or television broadcast.

 

[quincy]

First, and again, the definition of defamation per se is a statement that is defamatory in and of itself without any extrinsic facts needed, and for a statement to be defamatory per se means that the statement made is not capable of an innocent meaning. Defamation per quod means that the defamatory statement is either not apparent on its face but can be proved by extrinsic evidence that it has an injurious meaning, or it is a statement that is apparent but is not actionable without reference to additional facts.

Compensatory or general damages are awarded for injury to a reputation - there is no fixed amount for compensatory or general damages, because a person's reputation has no set value. The value of a reputation, therefore, is determined by a jury after reputational injury has been demonstrated. These damages are to "compensate" a person for an injured reputation.

Pecuniary damages, or special damages, are awarded for losses that can be estimated or documented (loss of income, loss of promotion, loss of clients). These damages are awarded to compensate for monetary losses incurred as the result of the defamatory statement made.

Actual damages include both compensatory damages and pecuniary losses.

Punitive damages can also be awarded, in addition to actual damages, to punish the defamer who has published an especially malicious defamatory statement (although these damages are rarely awarded now).

For defendants, a retraction can mitigate damages awarded.

When any false and defamatory statement is made and it demonstrably injures a reputation, it is considered "actionable." Actionable simply means that there are legal grounds for a lawsuit.

With defamatory per se statements, the statements are actionable because the defamation is apparent by the statement itself (without any extrinsic facts needed) and reputational injury is presumed (presumed meaning there is no need to prove injury to be awarded damages). Legal grounds exist for a defamation lawsuit when a statement that is published is defamatory per se.

For a "per se" statement, no extrinsic information is needed to show the statement is defamatory. Rapist has only one definition and it is always defamatory per se to falsely call someone a rapist. Being called a rapist presumes injury.

For the false statement "he killed an albino deer," on the other hand, a reader must know that killing an albino deer is illegal. When extrinsic facts are needed to make out the defamatory meaning of a statement, then it is not defamation per se, and a plaintiff generally must prove injury suffered for damages to be awarded. It is not understood, in other words, that everyone or anyone was aware of the defamatory nature of the statement made.

If a reader does not equate killing an albino deer with an illegal act, a statement saying "he killed an albino deer" is not defamation per se because the statement does not convey automatically a defamatory meaning to the reader. Without the automatic conveyance of a defamatory meaning, a person cannot be said to have been defamed by a statement unless he can show the extrinsic facts that make that statement defamatory and show reputational injury resulted from the statement made. Reputational injury shows that the defamatory nature of the statement made was, in fact, conveyed to those reading the statement.

In your case, you have 3.100 that shows the statement made about you killing an albino deer is defamatory, because 3.100 states that killing an albino deer is illegal. To say you killed an albino deer, then, when combined with knowledge of 3.100, would be defamatory. The statement states or implies you committed a crime. When a statement is not apparently defamatory on its face, however, and it requires extrinsic facts to show the defamatory nature of a statement, you then must also prove you have been defamed by the statement - this by showing damages incurred as a result.

The defamatory nature of the statement, when a statement can have both an innocent and a defamatory meaning, should be submitted to a jury to determine whether the defamatory nature of the statement was the one conveyed to the audience.

Actual malice, again, is the deliberate intent, without justification or excuse, to commit a wrongful act or an injury. Actual malice is shown through evidence proving that the person who published a defamatory statement had knowledge of its falsity, or a reckless disregard for its truth or falsity, and published it anyway with a deliberate intent to cause injury. Intent is a state of mind that accompanies an act. Reckless disregard involves a serious indifference to the truth or accuracy of what is published.