Michigan Supreme Court

[quincy]

The appellee trying to argue materials not in the lower court records and not relating to the issues being addressed in the application can subject the appellee to the striking of these portions, either on motion by you or by the Court's own motion.

There is a limit as to what issues can be addressed, in other words, in the replies and responses. If you added "new issues" to your application, issues not raised in the Court of Appeals, you would have had to state those new issues on the application itself when it was filed, and presented arguments at that time as to why these new issues should be reviewed by the Court, using cases, citations, laws and/or court rules which support your arguments.

Without the new issues being addressed on your application, however, the reply briefs cannot bring up new issues for the Court to consider and the appellee's reply briefs must be confined to a rebuttal of the issues being addressed in the application, without a filing by the appellee of a supplemental brief that presents arguments as to why this new information should be considered by the Court.

Is this what your question is about, jci? Whether to respond to an issue brought up in the reply that is not addressed in the application?

 

[jci63]

I received another opposition brief, from a different defendant today.

I mailed off one reply brief in rebuttal of issued presented in thst brief.

 

[quincy]

Geez. I bet you wish now that you had only one defendant to deal with.

You may, by the way, have to file a motion to have the new issue, the one introduced in the defendant's reply, striken. Perhaps the rebuttal alone will work, however. . . .

 

[jci63]

Working on the next Reply Brief

Limited Public Figure

After careful review, I have determined beyond a shadow of doubt that I did not appear at any public media events, radio, TV ect before defendants letters were published.

The Defendants in Depositions stated they mailed their letters 5 days before my first media appearance. Showing I could not be a limited public figure at the time they wrote and published their letters.

I need case law on limited public figure of anything pertaining to the above statements.

Thanks as always......

jci63

 

[quincy]

I will locate some appropriate caselaw for you, but I did want to tell you that if you were featured in even one news article, in a large newspaper or in a small local newspaper, and the letter writers were responding to that article (or even to a captioned photo of you - with or without your deer), that makes you a public figure for the purposes of a defamation action.

You do not need to be on TV or on the radio or appearing at a public event to be a public figure. One news article that attracts public interest and public attention is all that is necessary to go from private figure to public figure.

Edit to add:
Here are some cases for you to review, with debates over public v private figures -

James D. Nichols v Michael Moore, February 20, 2007, file name 07a0068p.06
- go to http://www.ca6.uscourts.gov/opinions.pdf/07a0068p.06.pdf

Troy Ogle v Rick Hocker, U.S. Court of Appeals for the 6th Circuit, May 29, 2008

Bufalino v Detroit Magazine, Inc, 433 Mich 766; 449 NW 2d 410 (1989)

Locricchio v Evening News Ass'n, 438 Mich 84, 122 (1991)

 

[jci63]

The defendants letters were written on December 30, 2004

I did not appear in or on newspapers, magazines, radio, TV or any other media outlet before these letters were written.

The letters were delivered on December 24, 2004 to the newspaper.

1st media appearance of any kind was on December 29, 2004.

Showing beyond a shadow of a doubt, the letters were written when I was a private figure, this changes the entire outcome of the Appeals Court decision.

Any other case law pertaining to erroneous decision, reviewing entire record or anything that might help expose this injustice would be great.

This site has been a great asset in helping me properly file not only my Application for Leave to Appeal, but also file my Reply Brief, answer questions about Jurisdiction statements and direct me to the proper avenues to find answers.

THANK YOU - for all your help and dedication

Just picked up the mail and received another brief, that makes 4 attorneys and 7 defendants****************************and me!

jci63

 

[quincy]

I am totally puzzled, jci.

What were the letter writers responding to if there had been no mention anywhere of your deer kill???? Your deer kill attracted public interest and public attention - but without any publicizing of this fact, I cannot see how anyone could have heard about it and responded with such a flurry of letters to the editor.

I will see about addtional cases for you to review - be sure to review the cases that are mentioned in the decisions made in the cases I cited above, as well as the cases themselves.

 

[jci63]

By deposition testimony:

I was driving down the road another local seen the deer in the rear of my vehicle.

This person went to a club where one of the Defendants regularly visited, he told him, this defendant rushed home and told his wife, him and his wife went over to another defendants home and informed them, they called other defendants and drafted up the infamous letters and the rest is history**************.....

almost 4 years later we are at the Michigan Supreme Court

 

[quincy]

. . . except one of the letters to the editor of the newspaper starts, "To say your article and the picture. . .saddened us. . ." This letter definitely refers to a photograph and article appearing in the newspaper. Apparently there were a couple of photos that appeared in your area newspapers after your deer kill, and these photos had descriptive captions.

At least for this one defendant and his letter to the editor, then, you were a limited public figure for the purposes of a defamation action. The courts also tend to look at whether a private person has been drawn into a public controversy through his actions, becoming perhaps an involuntary public figure but a public figure nonetheless. Even when the controversy surrounding the actions of this private individual is only discussed among members of the community, with no additional publicity or media attention, what is said about the person and his actions could make the individual a limited public figure for the purposes of a defamation action.

At any rate, you can certainly argue the public figure aspect as it relates to the letters by the other defendants, but I have a feeling this is not an issue you will have much success winning. There would have been no discussion and no letters to the editor, afterall, if you had not caused a public controversy with your killing of the piebald deer.

And, you would still need to prove negligence on the part of the writers. This, while easier than proving actual malice, is still no easy task.

But I guess your first order of business is getting the Supreme Court to grant you a leave to appeal. Without that, the rest remains moot.

I will post back with additional cases for you to review.

 

[jci63]

Today's Question

I looked online tracking my case progress, the last defendant submitted their Brief in Opposition on 11-24-08.

I did not receive my copy, so I contacted the Supreme Court Clerk and they looked up the Proof of Service and it was sent to my previous attorney.

I filed this paperwork in Pro-per and all the other defendants have sent this to me properly.

What can I do to correct this problem and do I need to file something due to the fact that the filing is defective?

The Supreme Court did state, I could purchase a copy for .50c per page!!!!!!

 

[quincy]

You should contact the defendant's attorney to correct the mailing error and either personally retrieve the copy sent to your previous attorney or have the attorney Fed Ex it to you (or perhaps the defendant's attorney could Fed Ex a copy to you). There is no reason for you to have to pay for a copy that should have been sent to you. But, with only a two day delay, I do not think it would be worth it for you to do much other than that.

Here are some cases for your review, jci, on public/private figure decisions in the U.S. Supreme Court. In the first two, the individuals were found to be private figures, and in the last case I cite the individual was found to be a public figure for purposes of a defamation action.

Time v Firestone, 424 U.S. 448 (1976)
Hutchinson v Proxmire, 443 U.S. 111 (1979)
Rosenbloom v Metromedia Inc, 403 U.S. 29 (1971)

What was considered in these cases was whether the individuals in these suits could be considered limited public figures due to aspects of their conduct that was subjected to public scrutiny and review. There is an important element of "injection" into a public arena which is looked at, where an ordinarily private individual becomes associated with, voluntarily or involuntarily, a matter of general public interest.

 

[jci63]

Defendant Brief # 2 finished and will be sent out on Tuesday, December 2nd.

Thanks for all your help......

This weeks topic's

The next Reply Brief topic will be regarding albino having 2 meanings one defamatory and one non-defamatory and substantial truth doctrine.

I need some case law regarding this topic**************..

Also, what does the term privileged mean when it comes to defamation or libel.

Thanks
jci63

 

[jci63]

Question

Just read the next Brief in Opposition - it states that a google.com search will display over 100 websites and that I appeared in several recreational sporting publications. These items were not in the lower court record

What are the steps I need to take to have these information stricken from the record?

 

[quincy]

Hi.
I will start with privilege as it relates to defamation.
Privilege is a special legal right, exemption or immunity given to certain people at certain times.

For instance, when testifying in court, nothing said in court can lead to a defamation action because all that is said in court is considered "privileged." Those speaking in court have an immunity from any defamation prosecution. This allows those speaking in court the freedom to say whatever they want without fear of being sued. It is this freedom to speak that is protected.

This immunity from defamation prosecution does allow for people to say horrible and defamatory things about others, and lies can be, and often are, told in a court room - and if it goes TOO far, then the person lying and defaming can potentially be charged with perjury, or lying under oath, but that is an action the state must decide to bring against the person. The person defamed in a court hearing cannot sue the person for defamation.

Privilege extends to not only all statements made in a judicial proceeding (and legislative and other public or official proceedings), but also to any statement made in the course of and with reference to this judicial proceeding (depositions, pretrial conferences, etc). And it extends to judges, jurors, all parties involved in the proceeding, all witnesses involved, any special advocates or officers involved.

There are also attorney/client privileges - where a client has the right to refuse to disclose confidential communications made between him and his attorney (the same privilege exists between priests and parishioners, doctors and patients, and other like relationships where confidential information is exchanged).

There are degrees of privilege - an absolute privilege, for instance, immunizes a person from a lawsuit no matter what is said or how wrongful an action might be, and a qualified privilege immunizes a person from suit only when the privilege is exercised in the performance of a legal or moral duty. Then there are "journalist privileges" which cover fair comment and criticism, fair and accurate reports and neutral reports, and there are many other privileges (legislative privilege, official privilege, marital privilege. . .) which probably do not need to be discussed as they do not apply to your situation. Some of these privileges overlap.

So, what privilege means when it comes to defamation is that some things said, whether defamatory or not, cannot lead to a defamation lawsuit because the things said were said in a privileged setting (during a court proceeding, for instance) or were said during a privileged communication (client to attorney, for instance) or were published as spoken in a privileged setting (a reporter reporting on a judicial proceeding, for instance). There are other examples.

Am I covering what you need to know here?
I will make another post to answer your other questions, as this is getting awfully long.

 

[quincy]

The key case to refer to when looking for defamatory v innocent meanings of words would be Peck v Coos Bay Times Publishing Co., 122 Or. 408, 259 P.2d 307, 311 (1909).

Also look at Restatement (Second) of Torts §559, comment e.

You can review, as well, Wilkow v Forbes, Inc., 241 F.3d 552 (7th Cir. 2001). Read the last paragraph of Easterbrook's opinion.

Muzikowski v Paramount Pictures Corp., 322 F.3d 918 (7th Circ 2003) - one of the arguments was that some of the statements Paramount made were reasonably capable of an "innocent construction." Rules of construction in defamation often follow common law's "when words have two meanings, lenient and severe, they will always be construed in the more lenient sense." Look also at the Bryson case which is discussed in Muzikowski.

Levinksky's, Inc. v Wal-Mart Stores, Inc., 127 F.3d 122, 130 (1st Cir. 1997) discusses the term "trashy" and its different meanings.

This will give you a start.