Michigan Supreme Court

[quincy]

Final question, jci. Final post . . . . . for now, at any rate.

What you will want to do with the brief received is file a "Motion to Strike." You can say that the brief introduces new material not already in the record.

You can also say that the material in the brief, because it is new, is immaterial and irrelevant and impertinent to the issues being addressed by the Court. Matter is immaterial when it tries to prove some fact that is not properly at issue (and/or lacks any logical connection with the facts at issue.) Matter is irrelevant when it is inapplicable to the issue under consideration. And matter is impertinent when it has no relevance to the action.

BUT, you actually might check out online the proper form for a Motion to Strike, and the proper language to use. Motions are really not an area I feel extremely comfortable advising anyone on - and although I know Motions to Strike can be for the reasons I stated above, I am not sure these are the reasons that are best for you to use. I will look more into it. . . .

At any rate, the issues newly introduced to your case in the defendant's brief can be striken upon your motion, and the court could even strike the material on its own. But I would, if I were you - and since you are getting so good at doing this - file your own motion to strike.

Again, check online for samples, forms and language. . . and I will do some checking, too, when time allows. Good luck!

 

[jci63]

Here's a good question

I have been researching both the substantial truth doctrine and the established rule involving a communication capable of bearing a defamatory meaning. If the publication is capable of more than one meaning, and one of these is defamatory, then it is for the jury to determine whether the communication was understood as being defamatory.

The example

The statement you killed our pet albino deer! - the word albino deer in Michigan at the time I filed my defamation lawsuit had 2 meanings. 1) an Albino deer being illegal to have in possession at anytime, a accusation of a criminal offense. 2) By law albino deer - all white with colorless hair.

Does one of these rules override the other?

How can the substantial truth doctrine apply in a situation where the definition of the words uttered have more than one meaning?

 

[quincy]

"Substantially true" means just that - that a statement is more true than false.

The error or errors that are made in a substantially true statement are not considered significant enough to change a true statement to a false statement. The error or errors made do not matter much to the overall truth of the statement. The error or errors do not alter the meaning of the statement, making a true statement false.

Substantial truth comes into play in your case with the statements made about you killing an albino deer.

If the letter writers can show that "albino" is used most commonly to describe all-white animals, even when the use of the term is not always technically correct, then they can show that "He killed an albino deer" is a substantially true statement. You killed a deer. It was white. White equals albino. Ergo, you killed an albino deer.

You, on the other hand, need to show that "albino" is used most commonly to describe animals with a genetic condition that leads to white hair and pink eyes. You need to show that most people when seeing a white animal with brown eyes will call it white, and when seeing a white animal with pink eyes will call it albino. You need to show that most people are aware of the difference between all-white and albino. If you can show this, then it becomes easier to show that the statements made by the letter writers were NOT substantially true, as a significant part of the statement was false.

You would also need to show, however, that the letter writers knew killing albino deer was illegal, and that they purposely and with malicious intent used the term albino instead of the more commonly used word "white" to describe the deer you killed, to imply you had committed a crime.

The only way one use of the word albino (color white) would override the other use of the word albino (genetic condition) is if it can be shown that albino is either used all the time or most of the time when viewing a white animal, or if albino is used only when viewing white animals with the genetic condition that leads to white hair and pink eyes.

Show a bunch of people photos of white animals, some pink-eyed, some brown-eyed, deer included. If most people describe all all-white animals as albinos, then you have an indication of what the common use of the word albino is. If people only use albino to describe the genetic pink-eyed white-haired animals, that is also an indication of how the word albino is used (in a technically correct sense and not a white-color-only sense).

Although this can seem a rather easy way to prove how common it is to call all all-white animals albinos (and I am guessing it is not real common ), it is definitely harder to show the intent behind the defendants' use of the word "albino" - whether they used it merely to describe the deer's color, or whether they used it in all innocence believing the deer to be a genetic albino, or whether they used it knowing the impact the word would have and specifically and maliciously chose the term to describe the deer you killed, to imply you had committed a crime.

 

[jci63]

Today's 1st Question

I contacted the Michigan Supreme Court Clerk and was told I could Amend my complaint as long as the Justices have not started to review the information. "there is no time limit" She also instructed me that it takes approximately 3.4 months to get to that point. (being reviewed)

Would it be in my best interest to amend my complaint and include the items of "Limited Public Figure" and if a communication cable of a defamatory meaning, etc.

If so, how will I get the Reply Briefs removed from the record or is this not necessary?

2nd question

It has become clear to me now, that the Supreme Court only takes cases that involve a determination of law or legislation that have not been heard in front of the Court before. They are not a fact correction Court!

How important is it to explicitly word your questions to the Court in a form that displays this criteria?

3rd question

How do you find out if a case regarding a certain matter has been already heard at the Supreme Court Level?

4th question

How do I look items such as Restatement (second) of Torts example- section 563 (1977)

 

[Ronin]

It has become clear to me now, that the Supreme Court only takes cases that involve a determination of law or legislation that have not been heard in front of the Court before.

Not necessarily, especially if the lower court ruling is inconsistent with precedent set by the Supreme Court. State Supreme Courts do not seek to correct every error the appeals courts make, but rather focus on issues deemed to be of jurisprudential importance to the state.

They are not a fact correction Court!

Generally speaking you are correct. Supreme Courts are not arbiters of factual disputes. While they may review challenges to the the legal sufficiency of the evidence, they will not likely address any factual sufficiency complaints.

How do you find out if a case regarding a certain matter has been already heard at the Supreme Court Level?

LexisNexis has some useful search tools. If you find something of interest you can pay as you go, or turn around and Google the case citations before you pay just in case the info is available for free from other sources. Your supreme courts website might have some search tools to scour opinions for keywords.

 

[quincy]

For Restatements of the Law, your best bet would be to go to a law library to do the research. Restatements are written by the American Law Institute and are accepted by courts as an authority on the law - in fact, many jurisdictions adopt sections of Restatements verbatim into their own laws. They are a recognized source of "black letter" law - those laws that are old, well-established, and fundamental, and are often used when a state court has not made its own decision on a matter of law.

Because Restatements are HUGE (covering several volumes just for the Appendix Volumes), you may want to stick with googling specific sections mentioned here. If you go to a law library, consult the Appendix Volume of Restatement (Second) of Torts for the first volume covering the section you are looking for (for instance, to find cases citing section 559 of the RST, you consult the first volume of the Appendix for that section, which has cases from 1977, the second volume digests cases from 1978 to 1987, and there is a pocket part of the second volume that has cases from 1987 to 1997).

The Restatement of Torts is, basically, key legal issues or situations and a rule of law that governs it, and the rule is based on what the majority of states have decided. All rules have a section number and are followed by comments which explain the rule.

In other words, you can use the RST for rules of law when you cannot find a state case that covers your particular legal concern.

As for amending your application, you can certainly do that if you feel that you want to add the "limited public figure" issue to your case and the "two-meanings of a word" issue. I know that some Michigan lower courts have ruled on this (I think I gave you some earlier examples). You can check the Michigan Supreme Court site for cases, to see if these are issues the court may want to address.

If you amend the issues you wish the court to address, the defendants in your case will also amend their briefs - which means you will want to reply, once again, to their briefs.

As Ronin mentioned, LexisNexis is a source you can access online. LexisNexis purchased Shepard's Citations, which is a list of all authorities citing a particular case, statute, or other legal authority.

 

[jci63]

Any argument with this statement

Court of Appeals Opinion-pg 5

Defendants moved for summary disposition under both MCR 2.116(C)(8) and (10).
However, because it appears that the trial court considered evidence outside the pleadings, we review the motion as having been granted pursuant to MCR 2.116(C)(10).

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(8) The opposing party has failed to state a claim on which relief can be granted.

(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

 

[quincy]

I am confused here, jci.

Are (C) 8 and 10 being used in one of the defendant's reply briefs? Did the defendant provide an affidavit, deposition, admission or other documentary evidence to support the grounds for 10?

If the defendant specifically identified the issues as to which there are no genuine issues as to material fact, you must provide facts showing there are genuine issues as to material fact. If you did not state any claim on which relief can be granted, you must state a claim on which relief can be granted.

Are these the grounds asserted by one of the defendants in a reply brief that are making you consider amending your application, because genuine issue of material fact was not addressed earlier?

 

[Ronin]

I see that this is based upon the opinion of the appeals court. However, I am also uncertain as to the context of the question as you present it here.

IV​

Plaintiff also argues that the trial court erred by granting summary disposition in favor of defendants and by dismissing his claims. We cannot agree.

Defendants moved for summary disposition under both MCR 2.116(C)(8) and (10). However, because it appears that the trial court considered evidence outside the pleadings, we review the motion as having been granted pursuant to MCR 2.116(C)(10).

It seems as though your question is based in part upon what you underlined because it appears that the trial court considered evidence outside the pleadings. This just means that since the trial court did consider the evidence, the motion was presumably granted under (C)(10), rather than granted as a result of your failure to state a claim upon which relief could be granted(C)(8).

Whether or not to grant a motion based upon MCR 2.116(C)(10) turns on questions of fact. The court of appeals is the final arbiter of factual disputes. The appeals court essentially agreed with the trial court that pursuant to MCR 2.116(C)(10) there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

Quincy, correct me if I am wrong with MI procedural reqt's, but unless this issue was possibly raised in the supreme court based upon a challenge to the legal suffificiency of the evidence (not the factual sufficiency), the supreme court will not consider this point.

 

[quincy]

This thread is so long, I am forgetting what I know and I don't know.

Let me review everything once again.

 

[quincy]

I did a quick review, jci, and I need to revisit some of your questions.

First, you asked about "privilege" and I failed to mention in my above-post the privilege that is probably the defense being used by your defendant(s), which is the constitutional defense of qualified immunity - in other words, free speech. I had mentioned this early on, when I said that commenting on matters of public interest was considered free speech and courts vigorously protected such speech. This is considered "qualified" immunity, however, because there are still limits as to what can be said freely. When comments are made about public figures, there is a much greater freedom to speak out than when comments are made about private figures (hence the difference in proofs needed to show defamation - actual malice versus negligence).

There is no constitutional protection under caselaw when it comes to private figure plaintiffs - this is left for the states to decide. In Michigan's Rouch v Enquirer and News of Battle Creek, the court said that a defamation defendant is not entitled to qualified privilege in private-figure cases (although, of course, other defenses are still available to a defamation defendant).

I believe you are asking for a grant for leave to appeal based on the lower court's improper determination of law regarding MDNR Order 3.100 - where the court relied on the testimony of a DNR expert witness who, you say, created a new legal definition and standards outside the realm of expert testimony. In doing so, the court was in error when determining that there was not a genuine issue of material fact. The court said, based on the DNR witness testimony, "Accusing someone of shooting an albino deer is not to accuse them of a crime."

Am I correct on this?

It actually may help if you re-stated exactly what the issues are that you are currently addressing in your application, and for which you are asking a Supreme Court review.

I think, in a brief review of Michigan Supreme Court decisions, that you might, in fact, want to consider amending your application to include the issue of "private versus public figure" and to include the issue of dual meanings of the word "albino" - an "innocent versus defamatory" interpretation of the word. These are issues that the Supreme Court may find compelling.

The Michigan Supreme Court will review de novo a lower court's summary disposition ruling. The Court will consider pleadings, affidavits, depositions, admissions, and other documentary evidence submitted to them, to determine whether a genuine issue of material fact exists. However, the Court will not review any questions of law if the case before them can be disposed of on other grounds.

In your case, the summary disposition was granted because you were unable to show that the defendants published their letters with actual malice. This, of course, goes to the fact that you were determined by the court to be a public figure for purposes of the defamation action. If there is, on record, a disagreement shown on your being designated a public instead of a private figure, then this may be worth a review by the Court. Other issues in your case were not addressed because you failed on this one element of proof necessary - actual malice. As a private figure, you would only need to prove negligence.

 

[jci63]

I believe you are asking for a grant for leave to appeal based on the lower court's improper determination of law regarding MDNR Order 3.100 - where the court relied on the testimony of a DNR expert witness who, you say, created a new legal definition and standards outside the realm of expert testimony. In doing so, the court was in error when determining that there was not a genuine issue of material fact. The court said, based on the DNR witness testimony, "Accusing someone of shooting an albino deer is not to accuse them of a crime."

Am I correct on this?

YES

The Trial Court erred in Granting Summary Disposition to Defendants, stating that there are instances where shooting an albino deer can be a legal act. Contrary to LAW - DNR Order 3.100(2) and the Protected Wildlife Legislation, which both had provisions to protect albino deer.

The Michigan Court of Appeals Court erred in affirming the lower Courts decision and declining to address the Plaintiff/ Appellant’s argument that the Trial Court misinterpreted former DNR Order 3.100(2).

MCL 324.40107(1) The DNR may establish orders regulating the hunting and taking of game and wild animals in this state.

MCL 324.40107(1)(c) Make recommendations to the legislature regarding animals that should be protected.

MCL 324.40118(3) A person who violates a DNR order concerning the hunting and taking of deer is guilty of a misdemeanor.

At the time this action was filed, a standing DNR order prohibited the hunting and killing of albino deer.

DNR Order 3.100(2):
Providing that: “it shall be unlawful for a person to take or possess, at any time, an albino deer, being a deer with all white or colorless hair, or a deer with a coat of all white or colorless hair similar to an albino deer. Piebald, or partially white deer, may be taken under the provisions of this order.”

Along with the DNR Order 3.100(2), all white or albino deer were on the DNR Protected Wildlife list, which stated:

Eagles, hawks, owls, swans, spruce and sharp-tailed grouse, wolverines, lynx, moose, cougars, cub bears, and sows accompanied by cubs, and all white or albino deer may not be taken at anytime.

(Exhibit 1 – DNR Protected Wildlife Order, Ingersoll Deposition Exhibit 9/ #4)

On April 3, 2006, Defendants H and F filed a motion for summary disposition based on MCR 2.116(C)(6), (8) and (10). Defendants H, B and T each filed a “concurrence” with the H-F motion.

On April 24, 2006, the Court heard oral arguments on the H-F motion and took the motion under advisement.

On May 31, 2006, the Court issued its written opinion and order denying Defendants H and F motion for summary disposition stating:

•“It is a criminal offense in the state of Michigan to kill an albino deer.”
•“There is a reasonable possibility that facts could be developed at trial which may allow the Plaintiff to establish these Defendants alleged is criminal activity of which this Plaintiff could be identified as the perpetrator.” (Exhibit 2 -Opinion and Order of Trial Court, 05-31-2006)

On April 13, 2005, Defendant H filed his own motion for summary disposition under MCR 2.116(C) (8) and (10). Defendants H-F, B and T each filed a concurrence with the H motion.

On May 22, 2006, the Court heard oral arguments on the H motion and took the motion under advisement.

On June 1, 2006, the Court issued its written opinion and order denying Defendant H’s motion for summary disposition stating:

•“For purpose of this motion, the Court accepts Plaintiff’s assertion that the deer Plaintiff shot was not an albino but was instead a piebald deer. A piebald deer is a bi-colored deer being both brown and white. It also appears uncontested that this deer was predominantly white with a few spots of brown.”
•“It is a criminal offense in the state of Michigan for one to kill an albino deer.”
•“Therefore, in the present case, if Mr. H’s letter could be interpreted as accusing the Plaintiff of committing a crime, it would not be necessary that the Plaintiff prove actual economic loss as he would be entitled to recover damages suffered with respect to his feelings.”
•“In viewing this matter in a light most favorable to the non-moving party, this Court would find that a trier of fact could conclude that the H letter accuses the Plaintiff of either shooting an albino deer or attempting to shoot an albino deer both of which are criminal acts in Michigan and could create a basis for recovery under MCL 600.2911.” (Exhibit 3 - Opinion and Order of Trial Court, 06-01-2006)

On September 14, 2006, Defendant H filed a Renewed Motion for Summary Disposition under MCR 2.116(C)(8) and (10).

On October 10, 2006, Defendants H and F followed Defendant H’s lead by filing their “Renewed Motion for Summary Disposition” under MCR 2.116(C)(8) and (10).
Defendants B and T each filed concurrences with the two “renewed” motions.
The Renewed Motions for Summary Disposition were heard on November 20, 2006. The Court granted the Defendants Motions for Summary Disposition. A final order was filed with the Court on December 4, 2006.

On November 20, 2006, the Court issued its opinion and order granting Defendant’s motion for summary disposition stating:

•Previously these motions for summary disposition when they were brought I was of the opinion that an albino deer was illegal to shoot and therefore looking at things in a light most favorable to the non-moving party, the letters could be interpreted as accusing the plaintiff of having committed a crime which is per se libel or slander.

•I guess, have educated me to the extent that the DNR has indicated these are the individuals in charge of enforcement that an albino deer -- what is technically an albino deer can be a legal target and legal kill

•Therefore, what's different today than it was before discovery had concluded was to indicate somebody has shot an albino deer is not to accuse them of a crime. As the DNR has testified to, there are instances where shooting an albino deer can be an illegal [legal]act. (Exhibit 4 – Court Transcript of Hearing November 20, 2006 pg 45-46)

However, in the Court’s second pass at the question of summary disposition under MCR 2.116(C)(10), the Court not only reversed its position on the facts, but reversed its position on the law as well, this opinion of DNR testimony created a new legal definition and standard to MDNR Order 3.100(2) and Protected Wildlife Legislation.

In this holding, the Court did not cite any case law, statute, constitutional provision, attorney general opinion, or evidence other than speculative testimony by DNR officers to arrive at this legal conclusion.

This reliance on what the “DNR officers testified “is clearly contrary to well-established Michigan law, which provides that expert testimony on legal opinions is improper. In Carson Fischer Pott &Hyman v Hyman, 220 Mich App 116, 122-123,559 NW2d 54, 57 (1996), the Court stated:

Our Supreme Court has explained that the function of an expert witness is to supply expert testimony. This testimony includes opinion evidence, when a proper foundation is laid, and opinion evidence may embrace ultimate issues of fact. However, the opinion of an expert may not extend to the creation of new legal definitions and standards and to legal conclusions. Downie v. Kent Products, Inc., 420 Mich. 197,205,362 N.W.2d 605 (1984). Further, an expert witness is not permitted to tell the jury how to decide the case. People v. Drossart, 99 Mich.App.66, 79, 297 N.W.2d 863 (1980). A “witness is prohibited from opining on the issue of a party's negligence or nonnegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or [the accused's] guilt or innocence." Id., pp. 79-80,297 N.W.2d 863. Therefore, it is error to permit a witness to give the witness' own opinion or interpretation of the facts because doing so would invade the province of the jury. Id., p. 80,297 N.W.2d 863. An expert witness also may not give testimony regarding a question of law, because it is the exclusive responsibility of the trial court to find and interpret the law. Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 592, 513 N.W.2d 773 (1994).

Emphasis supplied.

The reason for such a rule is evident: allowing such testimony has the potential to lead the Appeals Court down a path where, as here, the Appeals Court decides to accept the legal "interpretation" of MDNR personnel over the plain, pragmatic language of the written word of the law itself. In so doing, the Appeals Court committed reversible error and reached a bizarre result never intended by the drafters of the Order. The Appeal Court's affirming the order of summary disposition in favor of Appellees, based largely upon the "expert" testimony of the meaning of the law as given by MDNR personnel, should be reversed.

In the Court of Appeals Opinion it stated:

•Lastly, Plaintiff argues that the Trial Court misinterpreted former DNR Order 3.100(2), that the Trial Court made impermissible findings of fact and credibility determinations, that the Trial Court ascribed undue weight to certain evidence, and that the Trial Court improperly failed to consider other evidence. In light of our resolution of the above issues, however, we decline to address the merits of these remaining arguments (Exhibit 5 - Appeals Court Opinion, page 8)

The Michigan Court of Appeals Affirmed the Cheboygan County Circuit Courts decision on September 16, 2008.

In Defendant/Appellee H’s Response and Opposition to Plaintiff/Appellant’s Application for Leave to Appeal under statement of facts and procedural in his history it states:

“There is no dispute that the buck was almost entirely white, but had a small patch of naturally stained fur between its horns and on its rear legs.” (Exhibit 6 – Statement of Facts)

 

[jci63]

Under former DNR Order 3.100(2) this is a Piebald deer, due to it being partially white and legal under the provisions of that order. NO where, in the Order does it state, that an albino deer may be taken under certain circumstances. In fact it states just the opposite “it shall be unlawful for a person to take or possess, at anytime, an albino deer.

If an albino deer is in possession or taken by a hunter at any time, they violate DNR 3.100(2), which under MCL 324.40118(3) they are guilty of a misdemeanor.
DNR 3.100(2)

it shall be unlawful for a person to take or possess, at any time, an albino deer, being a deer with all white or colorless hair, or a deer with a coat of all white or colorless hair similar to an albino deer. Piebald, or partially white deer, may be taken under the provisions of this order.

MCL 324.40118(3)

(3) A person who violates a provision of this part or an order or interim order issued under this part regarding the possession or taking of deer, bear, or wild turkey is guilty of a misdemeanor and shall be punished by imprisonment for not less than 5 days or more than 90 days, and a fine of not less than $200.00 or more than $1,000.00, and the costs of prosecution.

In 2004 the Michigan had albino deer listed under Protected Wildlife Legislation; if an albino deer was is in possession or taken by a hunter at any time clearly a violation of the Protected Wildlife legislation, which under MCL 324.40118(10) they are guilty of a misdemeanor.

Protected Wildlife - 2004

Eagles, hawks, owls, swans, spruce and sharp-tailed grouse, wolverines, lynx, moose, cougars, cub bears, and sows accompanied by cubs, and all white or albino deer may not be taken at anytime. (Ingersoll Deposition Exhibit 9/ #3A)

MCL 324.40118(10)
(10) A person who violates a provision of this part or an order or interim order issued under this part regarding the taking or possession of an animal that has been designated by the department to be a protected animal, other than an animal that appears on a list prepared pursuant to section 36505, is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not less than $100.00 or more than $1,000.00, or both, and the costs of prosecution.

MCL 324.40103(7)
(7) "Protected" or "protected animal" means an animal or kind of animal that is designated by the department as an animal that shall not be taken.


MCL 324.40106
A person shall not take, release, transport, sell, buy, or have in his or her possession game or any protected animal, whether living or dead, or parts of any game or protected animal, from this state or from outside of this state, except as provided for in this part or by an order of the department or an interim order of the department. This section does not enhance the department's powers to establish an open season for an animal that is not game or give the department the power to designate a species as game.

MCL 324.40119(1)
(1) In addition to the penalties provided for violating this part or an order issued under this part, and the penalty provided in section 36507, a person convicted of the illegal killing, possessing, purchasing, or selling, of game or protected animals, in whole or in part, shall reimburse the state for the value of the game or protected animal as follows:

MCL 324.36507
A person who violates this part or who fails to procure any permit required under this part is guilty of a misdemeanor punishable by imprisonment for not more than 90 days, or a fine of not more than $1,000.00 or less than $100.00, or both.

MCL 324.40117
In a prosecution for a violation of this part or an order or interim order issued under this part, the possession of the parts of any game or protected animal, except when the taking is permitted by this part, is prima facie evidence that the animal was taken in violation of this part by the person possessing the animal.

At the time this action was filed it was illegal to kill an albino deer at anytime, being a misdemeanor and a crime in the State of Michigan. The Trial Court initial determination of law was “It is a criminal offense in the state of Michigan for one to kill an albino deer” only after DNR testimony did this determination of law change to “to indicate somebody has shot an albino deer is not to accuse them of a crime”

 

[jci63]

On March 31, 2006, Defendants H and F filed a motion for summary disposition. Defendants argued the following question of fact:

Brief Statement of Uncontested Facts
7. That since December 19. 2004 the Plaintiff has discussed the deer he took on December 19, 2004:

a. once on the radio;
b. once on television;
c. twice in magazines;
d. six times in newspapers;
e. three times where he appeared at venues for purposes of discussing his successful hunt;
f. and three times at venues where he appeared for purposes of having his picture taken with the eight point buck.

On April 21, 2006 Plaintiff responded to this strongly disputed question of fact in his Answer to Defendants H and F's Motion for Summary Disposition by stating the following:

7. Statement uncontested, Inference contested. Plaintiff agrees that his piebald deer has been displayed in various media. However, Defendants’ inference (in their Answer to the Complaint) that showing the deer to the public and seeking publicity made the Plaintiff a public, not a private figure, is dead wrong. The Defendants’ malicious and defamatory accusations that the Plaintiff killed their neighborhood “pet albino deer”, Plaintiff’s reputation was severely damaged in the community. Besides feeling that Plaintiff is a person who shoots neighborhood pets because they’re easy prey, some members of the community believed that Plaintiff shot an “albino” deer, which is a crime in Michigan. Given that reputation, and the Defendants’ refusal to retract their false and defamatory statements, Plaintiff sought publicity to mitigate the damage to his reputation by publicizing that he did not kill an albino deer, he killed a piebald deer, and the deer was not the neighborhood “pet” as the Defendants stated.

On April 24, 2006, the Circuit Court heard oral arguments on the H-F motion and took the motion under advisement.

On May 31, 2006, the Circuit Court issued its written opinion and an order denying Defendants H and F's Motion for Summary Disposition stating:

NOW, THEREFORE, IT IS ORDERED that Defendants', H and F, motion for summary disposition is hereby denied.

On April 13, 2005, Defendant H filed his own motion for summary disposition. Defendants argued the following question of fact:

Brief Statement of Uncontested Facts

7. That since December 19. 2004 the Plaintiff has discussed the deer he took on December 19, 2004:

a. once on the radio;
b. once on television;
c. twice in magazines;
d. six times in newspapers;
e. three times where he appeared at venues for purposes of discussing his successful hunt;
f. and three times at venues where he appeared for purposes of having his picture taken with the eight point buck.

On May 16, 2006, Plaintiff did respond to this strongly disputed question of fact in his Answer to Defendant H's Motion for Summary Disposition by stating the following:

Defendant H assumes that Plaintiff takes the position that Plaintiff is a private figure, which is true. Other Defendants, however, claim that Plaintiff is a public figure. That in itself is a genuine issue of material fact that is in dispute.

On May 22, 2006, the Circuit Court heard oral arguments on the H motion and took the motion under advisement.

On June 1, 2006, the Circuit Court issued its written opinion and an order denying Defendant H’s Motion for Summary Disposition stating:

NOW, THEREFORE, IT IS ORDERED that Defendant H’s motion for Summary disposition is hereby denied.

On September 14 , 2006, Defendant H filed a Renewed Motion for Summary Disposition which echoed the exact same issues and facts that the Circuit Court denied in its June 1, 2006 Order.

In their Motion for Summary Disposition Defendant Hagerman argued the identical following question of fact:

Brief Statement of Uncontested Facts
7. That since December 19. 2004 the Plaintiff has discussed the deer he took on December 19, 2004:

a. once on the radio;
b. once on television;
c. twice in magazines;
d. six times in newspapers;
e. three times where he appeared at venues for purposes of discussing his successful hunt;
f. and three times at venues where he appeared for purposes of having his picture taken with the eight point buck.

On October 17, 2006 Plaintiff responded to this strongly disputed question of fact in his Answer to Defendant H's Renewed Motion for Summary Disposition by stating the following:

8. Regarding the term “public figure” as used in libel law, Plaintiff disagrees that he “made himself a public figure” by taking the deer to various forums. The term “public figure” applies to an elected official, or someone who interjects himself into a public controversy, usually political. In this case the Plaintiff was a private citizen acting in a private capacity, not intending to become a part of a political controversy. The issue raised by the Defendant was not that the deer was a white deer, but that the deer was a “neighborhood pet albino deer,” and Defendant clearly asserted that the Plaintiff shot that specific “neighborhood pet,” an assertion that is countered by many facts in this case. The issue raised by the Defendant is not just that the deer was an albino, but that it was the very deer he had been feeding for a number of years.

Defendant H argued, several months ago, that Plaintiff was a private figure, which is true. He apparently has switched his position to conform to that of other Defendants who claim that Plaintiff is a public figure. That in itself is a genuine issue of material fact that is in dispute. Defendant H’s reasoning for Plaintiff’s claim to be a private figure is wrong, however, because Plaintiff’s Complaint alleges malice by the Defendants, which happens to be the standard applicable to a public figure. Plaintiff’s purpose is to establish that he qualifies for exemplary damages because of the intentional acts of the Defendant, which does involve a higher burden of proof.

On October 16, 2006, Defendants H and F followed Defendant H’s lead by filing their “Renewed Motion for Summary Disposition” which echoed the same exact issues and facts that the Circuit Court denied in its May 31, 2006 Order.

In their Motion for Summary Disposition Defendants argued the identical following question of fact, under:

Brief Statement of Uncontested Facts

4. That since December 19. 2004 the Plaintiff has discussed the deer he took on December 19, 2004:

a. once on the radio;
b. once on television;
c. twice in magazines;
d. six times in newspapers;
e. three times where he appeared at venues for purposes of discussing his successful hunt;
f. and three times at venues where he appeared for purposes of having his picture taken with the eight point buck.

These are the exact arguments of material fact that are in dispute and were denied in the Circuit Court Judge Orders on May 31, 2006 and June 1, 2006, then granted in the Judges Order signed on December 1, 2006.

On September 16, 2008 the Court of Appeals AFFIRMED the Lower Courts decision stating:
Further,
we are satisfied that plaintiff made himself a “limited public figure” for purposes of this particular case. It is undisputed that plaintiff sought out significant media attention. He appeared with his deer at various public venues, in several newspaper and magazine articles, and in at least one television report. Plaintiff, as a limited public figure, was “prohibited from collecting damages from defendants for libel unless [he could] show . . . that defendants made the complained of publication with actual malice.” Lins v Evening News Ass’n, 129 Mich App 419, 432; 342 NW2d 573 (1983). “Actual malice means publication with knowledge of falsity or with reckless disregard of truth or falsity.” Id.

 

[jci63]

ARGUMENT

1) BOTH THE TRIAL COURT AND THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION THAT THE PLAINTIFF/APPELLANT WAS A LIMITED PUBLIC FIGURE AND THEIR APPLICATION OF THE ACTUAL MALICE STANDARD.

The Trial Court erred in Granting Summary Disposition to Defendants, stating the plaintiff/appellant “by his own doing in taking the deer around and displaying it and generated quite a bit of interest in the local community, so he did place himself in the spotlight or limelight. By doing that he was a limited public figure to that degree.” (Exhibit 1 - Court Transcript pg 45-46 )

The Michigan Court of Appeals Court erred in affirming the lower Courts decision and being “satisfied that plaintiff made himself a limited public figure for purposes of this particular case. (Exhibit 2 - Appeals Court opinion)

The Michigan Appeals Court opinion stated (pg 6, para 3):

In a defamation case, we “independently review the whole record . . . to consider whether material falsity was shown.” Rouch v Enquirer & News of Battle Creek (After Remand), 440 Mich 238, 258; 487 NW2d 205 (1992). (Exhibit 2 - Appeals Court opinion)

In addressing the actual events presented from Defendants/Appellee’s alleged public appearances, relevant to the timeline of the Defendant/Appellee’s newspaper articles.

• Once on the radio – DATES - 3-11 thru 3-13, 2005
• Once on Television – DATE - 12-29-04
• Twice in Magazines – DATES -11-1-05 & 1-18-06
• Six times in newspapers – DATES -12-30-04, 1-05-05 twice, 1-06-05 twice, 1-21-05
• Three times where he appeared at venues for purposes of discussing his successful hunt – DATES -3-11 thru 3-13, 2005, 3-18-05, 11-8-05
• Three times at venues where he appeared for purposes of having his picture taken with the eight point buck – DATES - 3-11 thru 3-13, 2005, 3-18-05, 11-8-05
(Exhibit 3 – Chronological List of Events- Ingersoll Deposition exhibit 9)

In reference to the Defendants/Appellees letters published in the local newspapers.
• Defendant H – 12-30-04
• Defendant L T – 12-30-04
• Defendant G F – 12-30-04
• Defendant M F – 12-30-04
• Defendant J J – 12-30-04
• Defendant L B – 12-30-04
• Defendant R H – 1-06-05
• Defendant R H – 1-18-05
(Exhibit 3 – Chronological List of Events- Ingersoll Deposition exhibit 9)

After reviewing the Depositions of Defendants/Appellees it has been determined that they delivered the letter to the newspaper on December 24, 2004. This is 5 days before Plaintiff/Appellant appeared at any public media events to clear his name after the libelous letters were published.

F Deposition
Q To the newspaper?
A Yes.
Q The Straitsland Resorter? Is that your understanding?
A Yes.
Q Was it that evening that they did that?
A No. I believe it was the next day; the 24th
Q And how do you know that?
A Because she told me.
Q She told you on the 24th they had just taken it, or were going to take it?
A No. She said that she was going over, and she would deliver it to it on the 24th.

(Exhibit 4 – F Deposition pg 49-50)

The Plaintiff/Appellant has contested the allegation of limited public figure as stated above. The following documents filed with the lower Court will provide evidence of these objections.

•Plaintiff’s Answer to Defendants H's and F Motion for Summary Disposition (Exhibit 5 -pg 13, #7)
•Plaintiff’s Answer to Defendant H’s Motion for Summary Disposition (Exhibit 6 – pg 11)
•Plaintiff’s Answer to Defendant H Renewed Motion for Summary (Exhibit 7 - pg 4, #8)

Plaintiff/Appellant would also like to produce statements from his own deposition regarding the public appearances he attended and the reasoning behind these appearances.

plaintiff Deposition - (page 213, lines 3-12)

Q – You wrote letters to the editor at the newspaper your self, did you not?
A – One letter, yes.
Q – You also wrote a letter to the another newspaper
A – One letter, yes.
Q – And in your letter you sought to straighten out everybody and defend yourself essentially, did you not?
A – Try to mitigate damages, yes.

plaintiff Deposition - (page 107, lines 1-11)

A – To try to clear my reputation, and stand up for myself, and show to the community at large that I didn’t do what I was being accused of, and that is a criminal offense of shooting an albino deer, which is illegal to shoot in the State of Michigan.
Q – That’s why you took the deer to these various shows?
A – To clear my name, yes. Any time after December 30th is why I took it to those spots, to let people in the community see, to educate them, to talk to the one-on-one so if they had questions they could ask me, and I’d be more than willing to answer.

plaintiff Deposition - (page 83, lines 11-18)

Q – Do you intend to go to any sportsmen’s shows with the deer? Do you have any plans to do that at any point in the future?
A – No, sir.
Q – If the occasion comes up, you ---you wouldn’t have a problem going to any shows?
A – If that would help clear my reputation and educate the community on what type of deer I took, I would not have any objection to doing that, no, sir.
(Exhibit 8 – plaintiff Deposition)

Plaintiff/Appellant affirmatively denies the assertion that he was a limited public figure. As the evidence above clearly shows the Trial Court and the Appeals Court erred in their determination that Plaintiff/Appellant was a limited public figure at the time the libelous letters were written and delivered to the newspaper.

As stated in Clark V. American Broadcasting Companies, Inc., 684 F.2d 1208 (C.A.6 (Mich), 1982)

Plaintiff/Appellant was not a “limited public figure” “since he did not occupy “[a role] of especial prominence in the affairs of society and had not been “thrust...to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 418 U.S. 345. Pp 424 U.S. 453-455.

Gertz establishes a two-pronged analysis to determine if an individual is a limited public figure. First, a "public controversy" must exist. Gertz, 418 U.S. at 345, 94 S.Ct. at 3009. Second, the nature and extent of the individual's participation in the particular controversy must be ascertained. Id. at 352, 94 S.Ct. at 3013.

Plaintiff/Appellant is not a public figure for all purposes. "Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of (his) life". Id. at 352, 94 S.Ct. at 3013. Plaintiff has no general fame or notoriety. See Wolston v. Reader's Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979). He also lacks any pervasive involvement in the affairs of society. See Id. at 164, 99 S.Ct. at 2705; Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976).

The nature and extent of an individual's participation is determined by considering three factors: first, the extent to which participation in the controversy is voluntary; second, the extent to which there is access to channels of effective communication in order to counteract false statements; and third, the prominence of the role played in the public controversy. Gertz, 418 U.S. at 344-345, 94 S.Ct. at 3009; Wolston, 443 U.S. at 165-168, 99 S.Ct. at 2706-2707; Hutchison v. Proxmire, 443 U.S. 111, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979). See Wilson v. Scripps-Howard Broadcasting Co., 642 F.2d 371 (6th Cir.), cert. granted, --- U.S. ----, 102 S.Ct. 500, 72 L.Ed.2d 377, cert. dismissed, --- U.S. ----, 102 S.Ct. 984, 71 L.Ed.2d 119 (1981); Street v. National Broadcasting Co., 645 F.2d at 1234.

Applying these three factors to the instant case, the Plaintiff/Appellant is not a limited public figure.

The nature and extent of Plaintiff's involvement in the subject matter to the inescapable conclusion that he was not a limited public figure. The Supreme Court has refused to extend the actual malice requirement of New York Times v. Sullivan to plaintiffs who are neither public officials nor public figures. Gertz, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Thus, Plaintiff is not required to prove that Defendant’s/Appellant’s acted with actual malice.

Plaintiff/Appellant clearly by an overwhelming amount of evidence did not appear in any type of public media before the Defendants/Appellee’s libelous letter were written and delivered to the newspaper. Thus making the Plaintiff/ Appellee a private person, therefore the limited public figure status and the actual malice standard were improperly applied by the Circuit Court and the Appeals Court and should be reversed.