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Michigan Supreme Court
- Thread starter jci63
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First I have to say that from what I read of the letters (in the court of appeals opinion) they looked like pure opinion to me.
That said, I believe the court of appeals misapplied the substantial truth doctrine. The test for the substantial truth doctrine looks to the sting of the publication to determine its effect on the reader; if the literal truth would have produced the same effect, minor differences are deemed immaterial (I don’t think anyone would deny that the “sting” of any allegation of wrongdoing, is significantly increased if the wrongdoing is prohibited by law). Whether a difference qualifies as material, is a question of law for the court (rather than the jury).
The question in your case is whether the law against shooting albinos had any bearing on the way people reacted to the shooting.
First the trial court and then the court of appeals, found that the general publics’ reaction would have been substantially the same with or without the law. But it is clear from the defendants’ letters that they believed the deer was legally protected. Three out of the four writer’s mentioned this belief to support their position on the shooting.
I believe the courts should have found that the reactions of these people WERE affected by their belief that the shooting was illegal and therefore any accusations made to that effect would similarly influence others.
I would argue to the Supreme Court that they have to create guidelines for the use of the substantial truth doctrine at some point lest the doctrine be applied to the point of nullifying defamation law. In this case, the doctrine has been used to say that claiming someone broke the law is the same as complaining that they did something you don’t like.
I can’t think of a clearer place to draw the line. One cannot substantially commit a crime anymore than one can substantially become pregnant. These are the kinds of issues that no one should comment on without first making sure of the facts.
As for the public figure finding…if in fact you did nothing to publicize the shooting until the defendants publicized it, then you were not a public figure under the law. HOWEVER, you had to argue the facts (the timeline) of that issue to the trial court. If you did argue it in the trial court but neglected to argue it to the court of appeals, you have waived the issue.
Assuming you did not waive the public figure argument, you can argue it in the Supreme Court along with the substantial truth argument. You would need the Supreme Court to find in your favor on both issues to win a remand. Also, check with the court because they may allow you to submit one response to the various pleadings of the defendants’.
Having said all of the above, I must say that even if you got the case to trial, I don’t think there is a jury anywhere that would have punished the defendant’s for writing those letters. Juries very often disregard the law and do what they believe is the right thing to do.
I hope you will keep us informed of your progress!
That said, I believe the court of appeals misapplied the substantial truth doctrine. The test for the substantial truth doctrine looks to the sting of the publication to determine its effect on the reader; if the literal truth would have produced the same effect, minor differences are deemed immaterial (I don’t think anyone would deny that the “sting” of any allegation of wrongdoing, is significantly increased if the wrongdoing is prohibited by law). Whether a difference qualifies as material, is a question of law for the court (rather than the jury).
The question in your case is whether the law against shooting albinos had any bearing on the way people reacted to the shooting.
First the trial court and then the court of appeals, found that the general publics’ reaction would have been substantially the same with or without the law. But it is clear from the defendants’ letters that they believed the deer was legally protected. Three out of the four writer’s mentioned this belief to support their position on the shooting.
I believe the courts should have found that the reactions of these people WERE affected by their belief that the shooting was illegal and therefore any accusations made to that effect would similarly influence others.
I would argue to the Supreme Court that they have to create guidelines for the use of the substantial truth doctrine at some point lest the doctrine be applied to the point of nullifying defamation law. In this case, the doctrine has been used to say that claiming someone broke the law is the same as complaining that they did something you don’t like.
I can’t think of a clearer place to draw the line. One cannot substantially commit a crime anymore than one can substantially become pregnant. These are the kinds of issues that no one should comment on without first making sure of the facts.
As for the public figure finding…if in fact you did nothing to publicize the shooting until the defendants publicized it, then you were not a public figure under the law. HOWEVER, you had to argue the facts (the timeline) of that issue to the trial court. If you did argue it in the trial court but neglected to argue it to the court of appeals, you have waived the issue.
Assuming you did not waive the public figure argument, you can argue it in the Supreme Court along with the substantial truth argument. You would need the Supreme Court to find in your favor on both issues to win a remand. Also, check with the court because they may allow you to submit one response to the various pleadings of the defendants’.
Having said all of the above, I must say that even if you got the case to trial, I don’t think there is a jury anywhere that would have punished the defendant’s for writing those letters. Juries very often disregard the law and do what they believe is the right thing to do.
I hope you will keep us informed of your progress!
quincy
Senior Member
Hey, Quaere! It is good to hear your opinion on this.
I agree that the letters are opinion, which is what I mentioned to jci early on. Having read many many responses by readers to other newspaper photos published of hunters with their deer (your ordinary run-of-the-mill brown deer), I have to say that the reactions from those readers are not dissimilar to the ones posted about jci. The fact that the readers believed this to be their "pet" deer seemed to be more the reason for the letter writers' strong reaction than the fact that the deer was potentially an "albino" deer, as well.
However, jci obviously suffered reputational injury from his deer kill, so I understand his defamation action from that perspective, and I do think that there were court errors here - although I also think that the summary disposition was probably a legitimate response to the suit overall.
As for the public figure v. private figure issue, jci could be considered a limited public figure even without any attending media publicity - if his actions and conduct were publicized word-of-mouth in his community, leading to a public controversy in that community. The letter writers were obviously responding to something, whether it was media-generated or not. The timeline of media-publicized events, however, can certainly make for a stronger "private figure" argument, certainly.
Although the Supreme Court may dispose of jci's application due to proofs not being met for a defamation action, and therefore choose to ignore the court errors and other issues because the outcome of the trial case and appeals case would have remained the same either way, I certainly think jci is presenting his case about as well as he can hope to.
I will be interested in seeing how this all plays out.
I agree that the letters are opinion, which is what I mentioned to jci early on. Having read many many responses by readers to other newspaper photos published of hunters with their deer (your ordinary run-of-the-mill brown deer), I have to say that the reactions from those readers are not dissimilar to the ones posted about jci. The fact that the readers believed this to be their "pet" deer seemed to be more the reason for the letter writers' strong reaction than the fact that the deer was potentially an "albino" deer, as well.
However, jci obviously suffered reputational injury from his deer kill, so I understand his defamation action from that perspective, and I do think that there were court errors here - although I also think that the summary disposition was probably a legitimate response to the suit overall.
As for the public figure v. private figure issue, jci could be considered a limited public figure even without any attending media publicity - if his actions and conduct were publicized word-of-mouth in his community, leading to a public controversy in that community. The letter writers were obviously responding to something, whether it was media-generated or not. The timeline of media-publicized events, however, can certainly make for a stronger "private figure" argument, certainly.
Although the Supreme Court may dispose of jci's application due to proofs not being met for a defamation action, and therefore choose to ignore the court errors and other issues because the outcome of the trial case and appeals case would have remained the same either way, I certainly think jci is presenting his case about as well as he can hope to.
I will be interested in seeing how this all plays out.
Need some clarification:
In your opinion, how did the Court of Appeals misapply the substantial truth doctrine?
I can show a material fact in dispute, whether the deer is an albino deer. Both legally and or genetically.
I believe from what I read, that they determined the letters were substantially true, due to the
"DNR Officers testified in this case that even a genetically albino deer might have qualified as a piebald under former DNR Order 3.100(2). Such us true at the case at bar,the evidence that although plaintiff's deer may have been a genetic albino, it also met the legal definition of a piebald."
Accusation of a criminal offense, one meaning of the word albino surely should override the substantial truth doctrine.
What should my argument be to the Supreme Court?
In your opinion, how did the Court of Appeals misapply the substantial truth doctrine?
I can show a material fact in dispute, whether the deer is an albino deer. Both legally and or genetically.
I believe from what I read, that they determined the letters were substantially true, due to the
"DNR Officers testified in this case that even a genetically albino deer might have qualified as a piebald under former DNR Order 3.100(2). Such us true at the case at bar,the evidence that although plaintiff's deer may have been a genetic albino, it also met the legal definition of a piebald."
Accusation of a criminal offense, one meaning of the word albino surely should override the substantial truth doctrine.
What should my argument be to the Supreme Court?
Quincy:
It is good to see you here, still providing tons of accurate information, enabling posters to understand and further research their potential claims or defenses. You are providing an extremely valuable service, I just wish you weren’t providing it here, lol.
>>However, jci obviously suffered reputational injury from his deer kill,
Well, I think he suffered from the disapproval of others. I don’t know that the disapproval was prompted by any false statements of fact.
>> I also think that the summary disposition was probably a legitimate response to the suit overall.
I would have preferred to see the SJ granted on actual legal grounds, lol. I don’t like the court deciding whether they will enforce the law as written or make their own law as they go along. Maybe in this case it was the best thing to do for everyone’s sake, but that does not make it right.
>>As for the public figure v. private figure issue, jci could be considered a limited public figure even without any attending media publicity - if his actions and conduct were publicized word-of-mouth in his community, leading to a public controversy in that community.
Here I must respectfully disagree. The public figure status is only conveyed upon a person that knowingly puts himself out there in the fray of some issue. This guy exercised a legal right. He was not out campaigning to change the law about shooting albinos. He simply did that which the law permitted him to do. He is entitled to the same protections as any other private citizen, unless or until he waives some of those protections by thrusting himself into the center of some public controversy.
>>Although the Supreme Court may dispose of jci's application due to proofs not being met for a defamation action, and therefore choose to ignore the court errors and other issues because the outcome of the trial case and appeals case would have remained the same either way,
Assuming OP properly frames his issues, the SC is obligated to make sure the lower courts do not misapply public figure status in order to raise the plaintiff’s burden of proof. It is equally important for the SC to set some boundaries for the substantial truth doctrine, before it becomes a tool to defeat plaintiffs. Both matters represent significant issues for the citizens of MI.
If the SC declines to address these issues (assuming they have been properly framed) , OP can seek relief in Federal Court.
>>I certainly think jci is presenting his case about as well as he can hope to.
He seems to understand the legalities of his case, but understanding them and presenting the arguments are two different things. I guess time will tell and I will be most interested in upcoming developments.
It is good to see you here, still providing tons of accurate information, enabling posters to understand and further research their potential claims or defenses. You are providing an extremely valuable service, I just wish you weren’t providing it here, lol.
>>However, jci obviously suffered reputational injury from his deer kill,
Well, I think he suffered from the disapproval of others. I don’t know that the disapproval was prompted by any false statements of fact.
>> I also think that the summary disposition was probably a legitimate response to the suit overall.
I would have preferred to see the SJ granted on actual legal grounds, lol. I don’t like the court deciding whether they will enforce the law as written or make their own law as they go along. Maybe in this case it was the best thing to do for everyone’s sake, but that does not make it right.
>>As for the public figure v. private figure issue, jci could be considered a limited public figure even without any attending media publicity - if his actions and conduct were publicized word-of-mouth in his community, leading to a public controversy in that community.
Here I must respectfully disagree. The public figure status is only conveyed upon a person that knowingly puts himself out there in the fray of some issue. This guy exercised a legal right. He was not out campaigning to change the law about shooting albinos. He simply did that which the law permitted him to do. He is entitled to the same protections as any other private citizen, unless or until he waives some of those protections by thrusting himself into the center of some public controversy.
>>Although the Supreme Court may dispose of jci's application due to proofs not being met for a defamation action, and therefore choose to ignore the court errors and other issues because the outcome of the trial case and appeals case would have remained the same either way,
Assuming OP properly frames his issues, the SC is obligated to make sure the lower courts do not misapply public figure status in order to raise the plaintiff’s burden of proof. It is equally important for the SC to set some boundaries for the substantial truth doctrine, before it becomes a tool to defeat plaintiffs. Both matters represent significant issues for the citizens of MI.
If the SC declines to address these issues (assuming they have been properly framed) , OP can seek relief in Federal Court.
>>I certainly think jci is presenting his case about as well as he can hope to.
He seems to understand the legalities of his case, but understanding them and presenting the arguments are two different things. I guess time will tell and I will be most interested in upcoming developments.
JCI:
The Supreme Court (SC) does not review the trial court’s (TC) findings, it reviews the findings of the Court of Appeals (COA). In this case, the COA made two findings which supported the TC’s decision. Thus, there are only two questions for the SC appeal:
1. Did the COA err in finding that as a matter of law, OP was a limited public figure?
In my opinion, such a finding is preposterous.
A limited-purpose public figure is a person who voluntarily injects himself or is drawn into a particular public controversy. However, a private person is not automatically transformed into a limited-purpose public figure merely by becoming involved in or associated with a matter that attracts public attention. A court will look to the nature and extent of the individual's participation in the controversy. New Franklin Enterprises v. Sabo, 480 N.W.2d 326, 328 (Mich. App. 1991).
In Michigan, the following persons have been considered limited-purpose public figures:
The owner of a private art school was a public figure for the limited range of issues relating to the art school, its administration, and its problems;
A wife of a public official who injected herself into a public controversy made her a public figure for purpose of the controversy bolstered by the fact she was married to a public figure.
A retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at School Board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the Board.
How much clearer can it be? I would like to read the TC’s explanation as to how OP became a limited public figure. That OP may have attempted to publicize his achievement, in no way caused him to waive his right to the protection from defamation that is afforded to private citizens.
2. Did the Appeals Court err in finding that there is no material difference between accusing someone of an act that is within the law, and accusing them of a similar yet illegal act?
I do not believe that any legal act is substantially the same as any illegal act. The law is not a mere technicality.
Under the TC and COA’s theory, if I see a hunter with a rifle, it’s ok if I tell everyone he was using a machine gun. What’s the difference other than the fact that one gun is legal and the other is not? Won’t the public perception of the hunter be about the same either way?
If I see someone go through a yellow light, is it ok for me to tell everyone I saw him run a red light? Isn’t it substantially the same thing? No it is NOT. It is substantially the same to say someone ran a red light when they actually ran a stop sign, because both actions are illegal.
If you can persuade the SC to overturn the COA’s misinterpretation of the law on these two issues, the case should be remanded to the COA, which will THEN consider whether the TC’s conclusions re. the DNR rule were valid.
If the COA finds that TC's conclusions were valid, it will use those conclusions, as the TC did, to support a new finding that the letters were substantially true.
Of course, the TC erred in its conclusions re. the DNR rule and the COA knows it, lol. If they thought there was ANY merit to the TC’s findings in that regard, they would have affirmed those findings and used them to bolster their finding that the letters were substantially true.
Continued....
The Supreme Court (SC) does not review the trial court’s (TC) findings, it reviews the findings of the Court of Appeals (COA). In this case, the COA made two findings which supported the TC’s decision. Thus, there are only two questions for the SC appeal:
1. Did the COA err in finding that as a matter of law, OP was a limited public figure?
In my opinion, such a finding is preposterous.
A limited-purpose public figure is a person who voluntarily injects himself or is drawn into a particular public controversy. However, a private person is not automatically transformed into a limited-purpose public figure merely by becoming involved in or associated with a matter that attracts public attention. A court will look to the nature and extent of the individual's participation in the controversy. New Franklin Enterprises v. Sabo, 480 N.W.2d 326, 328 (Mich. App. 1991).
In Michigan, the following persons have been considered limited-purpose public figures:
The owner of a private art school was a public figure for the limited range of issues relating to the art school, its administration, and its problems;
A wife of a public official who injected herself into a public controversy made her a public figure for purpose of the controversy bolstered by the fact she was married to a public figure.
A retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at School Board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the Board.
How much clearer can it be? I would like to read the TC’s explanation as to how OP became a limited public figure. That OP may have attempted to publicize his achievement, in no way caused him to waive his right to the protection from defamation that is afforded to private citizens.
2. Did the Appeals Court err in finding that there is no material difference between accusing someone of an act that is within the law, and accusing them of a similar yet illegal act?
I do not believe that any legal act is substantially the same as any illegal act. The law is not a mere technicality.
Under the TC and COA’s theory, if I see a hunter with a rifle, it’s ok if I tell everyone he was using a machine gun. What’s the difference other than the fact that one gun is legal and the other is not? Won’t the public perception of the hunter be about the same either way?
If I see someone go through a yellow light, is it ok for me to tell everyone I saw him run a red light? Isn’t it substantially the same thing? No it is NOT. It is substantially the same to say someone ran a red light when they actually ran a stop sign, because both actions are illegal.
If you can persuade the SC to overturn the COA’s misinterpretation of the law on these two issues, the case should be remanded to the COA, which will THEN consider whether the TC’s conclusions re. the DNR rule were valid.
If the COA finds that TC's conclusions were valid, it will use those conclusions, as the TC did, to support a new finding that the letters were substantially true.
Of course, the TC erred in its conclusions re. the DNR rule and the COA knows it, lol. If they thought there was ANY merit to the TC’s findings in that regard, they would have affirmed those findings and used them to bolster their finding that the letters were substantially true.
Continued....
JCI:
Some things you should know if you intend to see this process through:
1. Appeals (even when written by experienced attys) are regularly dismissed for the failure to comply with incredibly small procedural matters. As a pro se, you have a tiny bit of leeway, but not much. If they can find a way to deny your petition on a procedural error, they will jump at the chance.
2. The TC and the COA obviously want your case dismissed. Most likely, they do not feel your cause is just. Many courts don’t mind perverting the law to achieve the outcome they want. What you perceive to be “errors” of the courts, are just as likely to be deliberate acts to thwart your case.
3. Now that you are pro se, you may see the courts deviate even further from the law, whether intentionally or not. According to Justice Alito, your pleadings in the appeals courts may never be reviewed by an actual judge. See Justice Samuel Alito Confirmation Vanguard Recuasal Issue
4. Of course you can continue to appeal each new “error” but you are swimming against the tide. Most litigants give up the fight once they understand what they are really up against.
5. If the courts ever let you get your case before a jury, you are going to see the same refusal to enforce the law. This is because even if you were technically defamed, this is not the kind of situation defamation law is meant to address.
6. If the following statement is any indication, the TC is not well versed in defamation law: “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.”
7. I am completely baffled by the fact that the TC didn’t simply say the letters were opinions. Maybe there were some statements of fact that I haven’t read? Did defense counsel argue that the letters contained only opinion?
8. There are no defenses of privilege available to the defendants in this case.
9. OP wrote:
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?
No, they don’t override one another. Many words have multiple meanings. We don’t take a word in isolation and try to decide what someone meant by it. We ask what impression the words, given their context, would make upon a reasonable person. What message would a reasonable person believe the writer was trying to convey?
In three of the four letters, the writers questioned the legality of the shootings. They were aware that the law protected albinos and they used that word knowing that if the deer was albino it followed that the shooting was illegal. Does this mean they were accusing you of breaking the law? I don’t know because I haven’t seen the complete letters.
10. I’ve seen several dismissals of defamation claims on the grounds that the defamation occurred in a forum where the plaintiff had a fair opportunity to rebut the false statements. I don't know how these dismissals have fared on appeal.
Personally, I do not believe these decisions are consistent with defamation law.
I do have to agree that such circumstances would go a long way towards mitigating a plaintiff’s damages.
11. The letters are not what I would call solid evidence of defamatory statements.
Even if the letters contained irrefutable, strong statements of defamatory fact, (ie. JCI you are a criminal, you belong in jail, you broke the law, etc.) the defendants in this case are so sympathetic I would not be surprised to see a finding in your favor result in a judgment for $1.00.
I can almost hear the jury gasp as they are shown the photos of that dead deer. Then there will be that parade of small children who talk about how they looked forward to seeing the deer, how they had a name for him, how much their teacher always enjoyed the pictures they drew of him, how he used to appear in their dreams but now they have nightmares about what happened to him, etc.
Please understand I am not judging you or your right to redress, I am just trying to explain the realities of your case. That said, whether the courts like your case or not, they are obligated to enforce the law as it is written and I don’t believe they have done so.
Some things you should know if you intend to see this process through:
1. Appeals (even when written by experienced attys) are regularly dismissed for the failure to comply with incredibly small procedural matters. As a pro se, you have a tiny bit of leeway, but not much. If they can find a way to deny your petition on a procedural error, they will jump at the chance.
2. The TC and the COA obviously want your case dismissed. Most likely, they do not feel your cause is just. Many courts don’t mind perverting the law to achieve the outcome they want. What you perceive to be “errors” of the courts, are just as likely to be deliberate acts to thwart your case.
3. Now that you are pro se, you may see the courts deviate even further from the law, whether intentionally or not. According to Justice Alito, your pleadings in the appeals courts may never be reviewed by an actual judge. See Justice Samuel Alito Confirmation Vanguard Recuasal Issue
4. Of course you can continue to appeal each new “error” but you are swimming against the tide. Most litigants give up the fight once they understand what they are really up against.
5. If the courts ever let you get your case before a jury, you are going to see the same refusal to enforce the law. This is because even if you were technically defamed, this is not the kind of situation defamation law is meant to address.
6. If the following statement is any indication, the TC is not well versed in defamation law: “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.”
7. I am completely baffled by the fact that the TC didn’t simply say the letters were opinions. Maybe there were some statements of fact that I haven’t read? Did defense counsel argue that the letters contained only opinion?
8. There are no defenses of privilege available to the defendants in this case.
9. OP wrote:
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?
No, they don’t override one another. Many words have multiple meanings. We don’t take a word in isolation and try to decide what someone meant by it. We ask what impression the words, given their context, would make upon a reasonable person. What message would a reasonable person believe the writer was trying to convey?
In three of the four letters, the writers questioned the legality of the shootings. They were aware that the law protected albinos and they used that word knowing that if the deer was albino it followed that the shooting was illegal. Does this mean they were accusing you of breaking the law? I don’t know because I haven’t seen the complete letters.
10. I’ve seen several dismissals of defamation claims on the grounds that the defamation occurred in a forum where the plaintiff had a fair opportunity to rebut the false statements. I don't know how these dismissals have fared on appeal.
Personally, I do not believe these decisions are consistent with defamation law.
I do have to agree that such circumstances would go a long way towards mitigating a plaintiff’s damages.
11. The letters are not what I would call solid evidence of defamatory statements.
Even if the letters contained irrefutable, strong statements of defamatory fact, (ie. JCI you are a criminal, you belong in jail, you broke the law, etc.) the defendants in this case are so sympathetic I would not be surprised to see a finding in your favor result in a judgment for $1.00.
I can almost hear the jury gasp as they are shown the photos of that dead deer. Then there will be that parade of small children who talk about how they looked forward to seeing the deer, how they had a name for him, how much their teacher always enjoyed the pictures they drew of him, how he used to appear in their dreams but now they have nightmares about what happened to him, etc.
Please understand I am not judging you or your right to redress, I am just trying to explain the realities of your case. That said, whether the courts like your case or not, they are obligated to enforce the law as it is written and I don’t believe they have done so.
Its darn refreshing to read sound legal reasoning and well presented arguments such as those of Quincy and Quaere on this forum.
Quaere, by federal court do you mean the U.S. Supreme Court? I believe this last remedy would have to be exhausted before even considering a collateral attack via federal district courts. If the Michigan SC exercises is discretionary right to decline this case, and given no constitutional issues were raised and preserved on appeal, such a case as this would be denied Certiorari or remand by the U.S. Supreme Court. Beyond questions of jurisdiction in this case, abstention doctrines would preclude federal court intervention.
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This lawsuit arose because of Defendants’ false and defamatory statements that turned many members of the community against jci63, seriously damaging my reputation and buisness. The Defendants wrote letters-to-the-editor of local newspapers that accused jci63, a deer hunter, of killing an 8-point albino buck that was a neighborhood pet that the Defendants had been feeding for four years. jci63’s buck was a 2½ year-old piebald, not an albino, and was taken several miles from Defendants’ neighborhood. jci63 demanded retractions of Defendants’ false statement but they refused.
On December 19, 2004, jci63 was legally deer hunting on private land in Emmet County, Michigan. It is undisputed that he had permission to hunt the property, was properly licensed, was wearing the required amount of hunter orange, was using the proper firearm, was hunting during the legal hours, and was using legally-prescribed hunting methods.
Late in the afternoon he saw a buck emerge from the woods about 200 yards away. The buck appeared to have an 8-point rack, but its coat was mostly white, not the normal brownish coloration of whitetail deer. He studied the deer through his binoculars but did not observe pink eyes which are a distinguishing characteristic of an albino. He did observe distinct patches of dark hair on its head and hocks against the white coat which distinguished the deer as a piebald.
At the time this action was filed, The Michigan Department of Natural Resources has enacted a clear and simple hunting regulation regarding the taking of albino deer.
MDNR ORDER 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.
Knowing that the deer was legal quarry he killed the buck, tagged it and took it home. Realizing the large amount of white hair may present a legal question, on December 21, 2004 jci63 took the buck to the Michigan Department of Natural Resources Field Office in Indian River. Two DNR wildlife biologists, a wildlife technician and a conservation officer thoroughly inspected and photographed the deer. They concluded that the deer was not an albino or white deer; it was a piebald buck that was legal to take.
jci63 took the deer to several locations where deer hunters congregated where additional photographs were taken, newspapers published photographs of the jci63 and his buck, along with several letters-to-the-editor that accused jci63 of shooting the “neighborhood’s pet Albino deer.
Neighbors upset by killing of “albino” deer
Who killed our friend for a trophy? Please be advised that on Monday, December 20, 2004, someone from Indian River shot and killed the neighborhood’s pet “Albino” deer. We have been lovingly feeding this pretty animal for four years. The DNR said it was a legal kill – but having been as close as 10 feet from this pet deer one of us was unable to see any brown markings. The stain observed by DNR was quite possibly a discharge from hind quarters and the small stain on forehead could be from tree rubbing. The neighbors and surrounding friends are very, very upset over the killing for a “trophy.” Saddened and broken hearted**************......
Deer should have been protected
I would like to know what the law is, or how the DNR stands with killing an albino deer. Webster’s dictionary defines albino as: a person, animal, or plant lacking normal coloration. I was told the white buck that lived in the Burt Lake area was shot by a hunter and killed. This news has saddened myself and others. If the law doesn’t protect these animals, who will? I know the people in the area tried – even hunters wouldn’t shoot him if he came into their bait pile. I come from a family of hunters, but some living beautiful animals should be protected**************....
Sad to hear white deer was killed
After receiving the sad news on Christmas eve about someone shooting the white deer near Alanson, I felt I needed to let people know how sad it really is. As a relative of people who watched this young buck grow and blossom since birth and then to watch them be so broken hearted over his death, I feel the people who live in Northern Michigan and appreciate its miracles and beauty should know that a young man looking for a “trophy” shot and killed the most beautiful sight I have ever seen! It’s just so sad**************....
These statements triggered an avalanche of negative public sentiment against jci63 , convincing them that jci63: 1) committed an illegal act by killing an albino deer, and 2) committed an immoral, reprehensible, repugnant act by killing a deer that was the “neighborhood’s pet.” jci63 attempted to correct the misconception explaining the true facts, showing photographs of his deer, and even having the deer mounted so he could display it to prove he did not shoot the “neighborhood’s pet albino deer.” His attempts to clarify the facts did not correct the impact of the untrue statements about jci63 in the letters-to-the-editor.
Then, on January 18, 2005, a letter-to-the-editor from another Defendant appeared in the newspaper that incited further community outrage:
Beautiful deer slain
To say that your article and the picture of the Albino deer that was killed near Alanson saddened us would not be the correct choice of words. I also believe that the referring to Mr. jci63 as a hunter would not be correct. I am but one of the many residents of the area who have enjoyed viewing this deer over the past years. I have both movies and pictures of this beautiful animal.
Reports are that the deer had a small brown spot near its back foot. I would like to know how Mr. jci63 could see such a spot with the amount of snow that we had on the ground on the day that he killed this animal. This deer has been cared for by the residents of this area for years and was almost as tame as our house pets.
Many of us wonder how Mr. jci63 dispatched the animal: did he use his pocketknife or just a stick that he picked up off the ground? I have been a deer hunter for more than 50 years and have never needed a deer bad enough to end the life of such a beautiful animal. I am very happy to say that I know of no real hunter who feels any different than I.
When the community read Defendant’s assertion that “This deer has been cared for by the residents of this area for years and was almost as tame as our house pets” the reputation and image of jci63 was further degraded. People made disparaging and hostile remarks to jci63 and his family when they were in restaurants and other public places and some even threatened to come to Plaintiff’s house and shoot his dogs. Students and teachers who held jci63 in low esteem because of the letters to the newspapers harassed jci63’s teenage daughter at school, and jci63’s wife received a hostile telephone call from a Defendant, one of the authors of a defamatory letter to the editor, resulting in a complaint to the Police Department.
On December 19, 2004, jci63 was legally deer hunting on private land in Emmet County, Michigan. It is undisputed that he had permission to hunt the property, was properly licensed, was wearing the required amount of hunter orange, was using the proper firearm, was hunting during the legal hours, and was using legally-prescribed hunting methods.
Late in the afternoon he saw a buck emerge from the woods about 200 yards away. The buck appeared to have an 8-point rack, but its coat was mostly white, not the normal brownish coloration of whitetail deer. He studied the deer through his binoculars but did not observe pink eyes which are a distinguishing characteristic of an albino. He did observe distinct patches of dark hair on its head and hocks against the white coat which distinguished the deer as a piebald.
At the time this action was filed, The Michigan Department of Natural Resources has enacted a clear and simple hunting regulation regarding the taking of albino deer.
MDNR ORDER 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.
Knowing that the deer was legal quarry he killed the buck, tagged it and took it home. Realizing the large amount of white hair may present a legal question, on December 21, 2004 jci63 took the buck to the Michigan Department of Natural Resources Field Office in Indian River. Two DNR wildlife biologists, a wildlife technician and a conservation officer thoroughly inspected and photographed the deer. They concluded that the deer was not an albino or white deer; it was a piebald buck that was legal to take.
jci63 took the deer to several locations where deer hunters congregated where additional photographs were taken, newspapers published photographs of the jci63 and his buck, along with several letters-to-the-editor that accused jci63 of shooting the “neighborhood’s pet Albino deer.
Neighbors upset by killing of “albino” deer
Who killed our friend for a trophy? Please be advised that on Monday, December 20, 2004, someone from Indian River shot and killed the neighborhood’s pet “Albino” deer. We have been lovingly feeding this pretty animal for four years. The DNR said it was a legal kill – but having been as close as 10 feet from this pet deer one of us was unable to see any brown markings. The stain observed by DNR was quite possibly a discharge from hind quarters and the small stain on forehead could be from tree rubbing. The neighbors and surrounding friends are very, very upset over the killing for a “trophy.” Saddened and broken hearted**************......
Deer should have been protected
I would like to know what the law is, or how the DNR stands with killing an albino deer. Webster’s dictionary defines albino as: a person, animal, or plant lacking normal coloration. I was told the white buck that lived in the Burt Lake area was shot by a hunter and killed. This news has saddened myself and others. If the law doesn’t protect these animals, who will? I know the people in the area tried – even hunters wouldn’t shoot him if he came into their bait pile. I come from a family of hunters, but some living beautiful animals should be protected**************....
Sad to hear white deer was killed
After receiving the sad news on Christmas eve about someone shooting the white deer near Alanson, I felt I needed to let people know how sad it really is. As a relative of people who watched this young buck grow and blossom since birth and then to watch them be so broken hearted over his death, I feel the people who live in Northern Michigan and appreciate its miracles and beauty should know that a young man looking for a “trophy” shot and killed the most beautiful sight I have ever seen! It’s just so sad**************....
These statements triggered an avalanche of negative public sentiment against jci63 , convincing them that jci63: 1) committed an illegal act by killing an albino deer, and 2) committed an immoral, reprehensible, repugnant act by killing a deer that was the “neighborhood’s pet.” jci63 attempted to correct the misconception explaining the true facts, showing photographs of his deer, and even having the deer mounted so he could display it to prove he did not shoot the “neighborhood’s pet albino deer.” His attempts to clarify the facts did not correct the impact of the untrue statements about jci63 in the letters-to-the-editor.
Then, on January 18, 2005, a letter-to-the-editor from another Defendant appeared in the newspaper that incited further community outrage:
Beautiful deer slain
To say that your article and the picture of the Albino deer that was killed near Alanson saddened us would not be the correct choice of words. I also believe that the referring to Mr. jci63 as a hunter would not be correct. I am but one of the many residents of the area who have enjoyed viewing this deer over the past years. I have both movies and pictures of this beautiful animal.
Reports are that the deer had a small brown spot near its back foot. I would like to know how Mr. jci63 could see such a spot with the amount of snow that we had on the ground on the day that he killed this animal. This deer has been cared for by the residents of this area for years and was almost as tame as our house pets.
Many of us wonder how Mr. jci63 dispatched the animal: did he use his pocketknife or just a stick that he picked up off the ground? I have been a deer hunter for more than 50 years and have never needed a deer bad enough to end the life of such a beautiful animal. I am very happy to say that I know of no real hunter who feels any different than I.
When the community read Defendant’s assertion that “This deer has been cared for by the residents of this area for years and was almost as tame as our house pets” the reputation and image of jci63 was further degraded. People made disparaging and hostile remarks to jci63 and his family when they were in restaurants and other public places and some even threatened to come to Plaintiff’s house and shoot his dogs. Students and teachers who held jci63 in low esteem because of the letters to the newspapers harassed jci63’s teenage daughter at school, and jci63’s wife received a hostile telephone call from a Defendant, one of the authors of a defamatory letter to the editor, resulting in a complaint to the Police Department.
(4) BOTH THE TRIAL COURT AND THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION THAT THE PLAINTIFF/APPELLANT DID NOT SHOW ACTUAL MALICE.
EXHIBIT 19 - The Michigan Appeals Court opinion stated (pg 7, para 7):
The burden of proof was on plaintiff to show, by offering specific evidence, the existence of a genuine factual dispute concerning whether defendants’ published statements were made with actual malice. Id. As noted above, there was some degree of controversy with respect to whether defendants’ various descriptions of plaintiff’s deer as an “albino” were technically accurate. However, it appears beyond dispute that defendants’ acted in good faith when they described plaintiff’s deer as an “albino”; there was quite simply no evidence that defendants acted with “reckless disregard of the truth or falsity” when describing plaintiff’s deer in this manner. Id. Plaintiff failed to satisfy his burden of establishing a genuine issue of material fact concerning whether defendants acted with actual malice when describing his deer as an “albino.”
EXHIBIT 19 - 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).
In its opinion affirming summary disposition, the Appeals Court ruled that although the deer at issue may in fact have been an albino, it was nonetheless a legal kill and therefore the accusation of killing an albino deer was not defamation, due to statements being substantially true. This factual ruling by the Appeals Court was improper because there was a host of record evidence supporting the proposition that the deer was not an albino at all. This evidence included:
•Necropsy record, Exhibit 10, in which MDNR pathologist states that the deer's eye color "eliminates this as being an albino animal,"
•MDNR Incident Report, Exhibit 9, stating that photos of the deer "confirmed" it was a piebald.
•MDNR Sgt. D deposition testimony, (Exhibit 18 - p. 22, lines 9-10), that in MDNR photographs, the deer's eyes did not appear to be pink.
•Naturally occurring brown hair in numerous areas of deer's fur. Necropsy record, Exhibit 10, and undisputed testimony and evidence permeating lower court record.
•Appellant 1-27-06 deposition testimony that deer had brown fur coloration and did not have pink eyes 64:1-5; 100: 8-15. Exhibit 2.
•Officer F 12-21-04 daily report - inspection of deer "to make sure it was not an albino" and "confirmed piebald." Exhibit 17.
Yet, the Appeals Court concluded that, as a matter of law, the deer taken by Appellant may in fact have been a "legal" albino. In so doing, the Appeals Court either usurped the prerogative of the fact finder, or simply ignored a plethora of evidence and admissions that the deer was, as a matter of fact, not in any way an albino. Accordingly, the Appeals Court erred and should be reversed.
EXHIBIT 19 - The Michigan Appeals Court opinion stated (pg 7, para 7):
The burden of proof was on plaintiff to show, by offering specific evidence, the existence of a genuine factual dispute concerning whether defendants’ published statements were made with actual malice. Id. As noted above, there was some degree of controversy with respect to whether defendants’ various descriptions of plaintiff’s deer as an “albino” were technically accurate. However, it appears beyond dispute that defendants’ acted in good faith when they described plaintiff’s deer as an “albino”; there was quite simply no evidence that defendants acted with “reckless disregard of the truth or falsity” when describing plaintiff’s deer in this manner. Id. Plaintiff failed to satisfy his burden of establishing a genuine issue of material fact concerning whether defendants acted with actual malice when describing his deer as an “albino.”
EXHIBIT 19 - 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).
In its opinion affirming summary disposition, the Appeals Court ruled that although the deer at issue may in fact have been an albino, it was nonetheless a legal kill and therefore the accusation of killing an albino deer was not defamation, due to statements being substantially true. This factual ruling by the Appeals Court was improper because there was a host of record evidence supporting the proposition that the deer was not an albino at all. This evidence included:
•Necropsy record, Exhibit 10, in which MDNR pathologist states that the deer's eye color "eliminates this as being an albino animal,"
•MDNR Incident Report, Exhibit 9, stating that photos of the deer "confirmed" it was a piebald.
•MDNR Sgt. D deposition testimony, (Exhibit 18 - p. 22, lines 9-10), that in MDNR photographs, the deer's eyes did not appear to be pink.
•Naturally occurring brown hair in numerous areas of deer's fur. Necropsy record, Exhibit 10, and undisputed testimony and evidence permeating lower court record.
•Appellant 1-27-06 deposition testimony that deer had brown fur coloration and did not have pink eyes 64:1-5; 100: 8-15. Exhibit 2.
•Officer F 12-21-04 daily report - inspection of deer "to make sure it was not an albino" and "confirmed piebald." Exhibit 17.
Yet, the Appeals Court concluded that, as a matter of law, the deer taken by Appellant may in fact have been a "legal" albino. In so doing, the Appeals Court either usurped the prerogative of the fact finder, or simply ignored a plethora of evidence and admissions that the deer was, as a matter of fact, not in any way an albino. Accordingly, the Appeals Court erred and should be reversed.
Evidence of Defendants malice:
•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)
•Defendants knew their statements were false before they published them. Defendant’s response to #20 in Plaintiffs First amended Complaint. (Exhibit 1- Plaintiff’s First Amended Complaint)
20. they wrote a letter to the Editor of the Straitsland Resorter to express their grief as well as to take issue with the DNR's conclusion that the taking of the deer was legal.
•Defendants letter stated the deer was shot on December 20, 2004, hunting season ended on December 19, 2004. (Exhibit 4 – H-F-T letter-to-the-editor)
Q And, to the best of your recollection, when you said that it
wasn't taken legally, what did that mean?
A It could have been several things; that it was taken on
trespass on -- on property where the hunter didn't have
permission, it could have been taken out of season, or with
an improper weapon (EXHIBIT 18 - Sgt.Greg D Deposition, Pg 7, lines 1-6)
•All the defendants were told that the Michigan DNR determined the deer was a legal kill before they published their letters.
EXHIBIT 20 - Gertrude – Deposition pg 14, lines 5-16, 24-25
Q Okay. Now, then the letter said "the DNR said it was a legal kill." Do you know who -- who from the DNR – where that information came from?
A taxidermist.
Q From taxidermist.. So on the 23rd, then, right after the defendants came, had the defendants talked to taxidermist.?
A My husband called taxidermist..
Q Oh, called him that day?
A Yes, sir.
Q And so Mr. taxidermist. then told defendant that it was a legal deer; correct?
A Apparently he told defendant that –
Q So the DNR had told taxidermist., and taxidermist. told –
A Told defendant.
EXHIBIT 21 - Linda – Deposition pg 16, lines 4-14
Q Now, Gert apparently read you the statement, "The
DNR said it was a legal kill"; is that correct?
A Yes.
Q Did you have any knowledge of the origin of that statement; in other words, who from the DNR said that, or
A I believe Gert mentioned that they had been to the DNR office, or somewhere, where they said it was a legal kill.
Q Now, when you say "they," are you meaning Gert –
A Gert and Marilyn.
Q Pardon?
A Gert and Marilyn -- Marylee.
EXHIBIT 21 - Linda – Deposition pg 16, line 25 & pg 17, lines 1-4
Q Okay. Well, when the conversation took place about the letter, it was your understanding that at that point the DNR had said to someone that that deer was a legal kill. Is that your understanding?
A That was my understanding.
Exhibit 22 -Mary – Deposition pg 43, lines 6-11
Q Giles. Now, Giles, to this point, had only known about this maybe an hour or so; correct? How did he know that the DNR said it was a legal kill?
A He called taxidermist..
Q Did he call taxidermist. while you were there?
A Yes.
Exhibit 22 - Mary – Deposition pg 43, lines 21-25
Q When he got done with the conversation, what did he tell you that taxidermist.said?
A That it was a legal kill.
Q Did you believe that?
A I had my doubts.
Exhibit 22 - Mary – Deposition pg 10, lines 13-21
Q Upon getting that answer, then what did you do?
A The DNR officer was there. He came in; Mr. F. I
didn't know him, I didn't know his name. And I proceeded to
ask him what he was going to do with the testing as a result
of asking for samples, as Mr. taxidermist. indicated, if he was
going to report to the Newspaper his findings of
testing so the community would know, and settle this issue.
Q And what issue? Settle what issue?
A Well, was it an albino.
Exhibit 23 - Ron H – Deposition pg 12, lines11-13
Q But it has been said that the DNR said it was a legal kill. Do you dispute that?
A I -- I question that.
Exhibit 23 - Ron H – Deposition pg 15, lines 21-24
Q And this was why? It was your deer?
A I didn't say it was my deer. I said the deer that I had
fed, that I had viewed for several years, that I enjoyed viewing, and that I thought was an illegal kill.
Exhibit 23 - Ron H – Deposition pg 16, lines 7-13
Q So anyone who shoots a piebald deer upsets you?
A I do not, sir, believe this to be a piebald deer, and did
not at the time that I wrote this letter. To answer your
question more directly, if someone were to kill an albino deer, I would be upset -- or an illegal white deer. That is, my opinion, breaking the law. I like to consider myself a responsible hunter.
Q And you felt at the time that you wrote this letter that
Mr. jci63 had killed an albino?
A Correct.
Exhibit 23 - Ron H – Deposition pg 27, lines 7-9
A In my opinion, Mr. jci63 killed an albino deer or a white deer -- however you want to classify it -- both of which I interpret to be illegal kills.
•Because some of the Defendants accused the Plaintiff of fraudulently coloring the hair of his piebald buck, the DNR investigation of the legality of Plaintiff’s deer.
Exhibit 2 - jci63 Deposition - pg 51. lines 3-15
Q And what did he say to you?
A He commented that Mrs. H and Mr. -- Mrs. defendant --
not Mister -- were at his place of business, and he told me
they were there for approximately three to five hours, and
they came with an 18-inch stack of Polaroid pictures of a
deer since birth, and ranting and raved that -- this was in
his words -- and stayed there. And then the DNR officer
stopped by. He didn't say -- he didn't give me a name of
which one. And he commented how Mrs. H and
Mrs. defendant chewed the DNR officer out, and told him they
weren't doing their job, and the deer was illegal, and so on
and so forth, and that he needed to do his job.
And apparently he went back and somebody cut some
holes in the hide.
(EXHIBIT 18 - Sgt. D Deposition pg 17, lines 24-25 / pg 18, lines 1-7)
Q Now, is there any reason why you didn't contact
Mr. jci63 to ask if you could --
A Yes.
Q -- take samples?
A Yes.
Q And why not?
A Because in criminal investigations, if I would have done
that, it's a possibility the deer hide would disappear
before a sample could be taken.
DNR Sgt. D informed jci63 that he was doing an investigation regarding 3 things.
•Application of some man-made chemical to make the brown areas on the deer hide.
Q Now, you said that -- referred to this investigation of the
Ingersoll deer. If Officer F and Lieutenant G
arrived at a conclusion that that deer was legal on the
21st, why was there an investigation?
A Well, information came forth that the deer may have not been
taken legally.
Q And where did that information come from?
A From the community. From different -- different sources
there were allegations of the deer may have been stained or
painted to produce a brown color.
EXHIBIT 18 – (Sgt. D Deposition Pg 6, lines 5-14)
•Shooting the deer out of season
Q And, to the best of your recollection, when you said that it
wasn't taken legally, what did that mean?
A It could have been several things; that it was taken on
trespass on -- on property where the hunter didn't have
permission, it could have been taken out of season, or with
an improper weapon.
EXHIBIT 18 – (Sgt . D Deposition Pg 7, lines 1-6)
•Trespassing
Q What was the nature of your investigation of trespass?
Where --
A I was familiar with the deer. I mean, it had been around
several years. And I knew -- I mean, I knew personally that
it usually was in certain areas. So, just to confirm that
it was taken legally for -- regarding trespass, I wanted to
confirm where it was shot at.
EXHIBIT 18 – (Sgt. D Deposition Pg 7, lines 18-24)
•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)
•Defendants knew their statements were false before they published them. Defendant’s response to #20 in Plaintiffs First amended Complaint. (Exhibit 1- Plaintiff’s First Amended Complaint)
20. they wrote a letter to the Editor of the Straitsland Resorter to express their grief as well as to take issue with the DNR's conclusion that the taking of the deer was legal.
•Defendants letter stated the deer was shot on December 20, 2004, hunting season ended on December 19, 2004. (Exhibit 4 – H-F-T letter-to-the-editor)
Q And, to the best of your recollection, when you said that it
wasn't taken legally, what did that mean?
A It could have been several things; that it was taken on
trespass on -- on property where the hunter didn't have
permission, it could have been taken out of season, or with
an improper weapon (EXHIBIT 18 - Sgt.Greg D Deposition, Pg 7, lines 1-6)
•All the defendants were told that the Michigan DNR determined the deer was a legal kill before they published their letters.
EXHIBIT 20 - Gertrude – Deposition pg 14, lines 5-16, 24-25
Q Okay. Now, then the letter said "the DNR said it was a legal kill." Do you know who -- who from the DNR – where that information came from?
A taxidermist.
Q From taxidermist.. So on the 23rd, then, right after the defendants came, had the defendants talked to taxidermist.?
A My husband called taxidermist..
Q Oh, called him that day?
A Yes, sir.
Q And so Mr. taxidermist. then told defendant that it was a legal deer; correct?
A Apparently he told defendant that –
Q So the DNR had told taxidermist., and taxidermist. told –
A Told defendant.
EXHIBIT 21 - Linda – Deposition pg 16, lines 4-14
Q Now, Gert apparently read you the statement, "The
DNR said it was a legal kill"; is that correct?
A Yes.
Q Did you have any knowledge of the origin of that statement; in other words, who from the DNR said that, or
A I believe Gert mentioned that they had been to the DNR office, or somewhere, where they said it was a legal kill.
Q Now, when you say "they," are you meaning Gert –
A Gert and Marilyn.
Q Pardon?
A Gert and Marilyn -- Marylee.
EXHIBIT 21 - Linda – Deposition pg 16, line 25 & pg 17, lines 1-4
Q Okay. Well, when the conversation took place about the letter, it was your understanding that at that point the DNR had said to someone that that deer was a legal kill. Is that your understanding?
A That was my understanding.
Exhibit 22 -Mary – Deposition pg 43, lines 6-11
Q Giles. Now, Giles, to this point, had only known about this maybe an hour or so; correct? How did he know that the DNR said it was a legal kill?
A He called taxidermist..
Q Did he call taxidermist. while you were there?
A Yes.
Exhibit 22 - Mary – Deposition pg 43, lines 21-25
Q When he got done with the conversation, what did he tell you that taxidermist.said?
A That it was a legal kill.
Q Did you believe that?
A I had my doubts.
Exhibit 22 - Mary – Deposition pg 10, lines 13-21
Q Upon getting that answer, then what did you do?
A The DNR officer was there. He came in; Mr. F. I
didn't know him, I didn't know his name. And I proceeded to
ask him what he was going to do with the testing as a result
of asking for samples, as Mr. taxidermist. indicated, if he was
going to report to the Newspaper his findings of
testing so the community would know, and settle this issue.
Q And what issue? Settle what issue?
A Well, was it an albino.
Exhibit 23 - Ron H – Deposition pg 12, lines11-13
Q But it has been said that the DNR said it was a legal kill. Do you dispute that?
A I -- I question that.
Exhibit 23 - Ron H – Deposition pg 15, lines 21-24
Q And this was why? It was your deer?
A I didn't say it was my deer. I said the deer that I had
fed, that I had viewed for several years, that I enjoyed viewing, and that I thought was an illegal kill.
Exhibit 23 - Ron H – Deposition pg 16, lines 7-13
Q So anyone who shoots a piebald deer upsets you?
A I do not, sir, believe this to be a piebald deer, and did
not at the time that I wrote this letter. To answer your
question more directly, if someone were to kill an albino deer, I would be upset -- or an illegal white deer. That is, my opinion, breaking the law. I like to consider myself a responsible hunter.
Q And you felt at the time that you wrote this letter that
Mr. jci63 had killed an albino?
A Correct.
Exhibit 23 - Ron H – Deposition pg 27, lines 7-9
A In my opinion, Mr. jci63 killed an albino deer or a white deer -- however you want to classify it -- both of which I interpret to be illegal kills.
•Because some of the Defendants accused the Plaintiff of fraudulently coloring the hair of his piebald buck, the DNR investigation of the legality of Plaintiff’s deer.
Exhibit 2 - jci63 Deposition - pg 51. lines 3-15
Q And what did he say to you?
A He commented that Mrs. H and Mr. -- Mrs. defendant --
not Mister -- were at his place of business, and he told me
they were there for approximately three to five hours, and
they came with an 18-inch stack of Polaroid pictures of a
deer since birth, and ranting and raved that -- this was in
his words -- and stayed there. And then the DNR officer
stopped by. He didn't say -- he didn't give me a name of
which one. And he commented how Mrs. H and
Mrs. defendant chewed the DNR officer out, and told him they
weren't doing their job, and the deer was illegal, and so on
and so forth, and that he needed to do his job.
And apparently he went back and somebody cut some
holes in the hide.
(EXHIBIT 18 - Sgt. D Deposition pg 17, lines 24-25 / pg 18, lines 1-7)
Q Now, is there any reason why you didn't contact
Mr. jci63 to ask if you could --
A Yes.
Q -- take samples?
A Yes.
Q And why not?
A Because in criminal investigations, if I would have done
that, it's a possibility the deer hide would disappear
before a sample could be taken.
DNR Sgt. D informed jci63 that he was doing an investigation regarding 3 things.
•Application of some man-made chemical to make the brown areas on the deer hide.
Q Now, you said that -- referred to this investigation of the
Ingersoll deer. If Officer F and Lieutenant G
arrived at a conclusion that that deer was legal on the
21st, why was there an investigation?
A Well, information came forth that the deer may have not been
taken legally.
Q And where did that information come from?
A From the community. From different -- different sources
there were allegations of the deer may have been stained or
painted to produce a brown color.
EXHIBIT 18 – (Sgt. D Deposition Pg 6, lines 5-14)
•Shooting the deer out of season
Q And, to the best of your recollection, when you said that it
wasn't taken legally, what did that mean?
A It could have been several things; that it was taken on
trespass on -- on property where the hunter didn't have
permission, it could have been taken out of season, or with
an improper weapon.
EXHIBIT 18 – (Sgt . D Deposition Pg 7, lines 1-6)
•Trespassing
Q What was the nature of your investigation of trespass?
Where --
A I was familiar with the deer. I mean, it had been around
several years. And I knew -- I mean, I knew personally that
it usually was in certain areas. So, just to confirm that
it was taken legally for -- regarding trespass, I wanted to
confirm where it was shot at.
EXHIBIT 18 – (Sgt. D Deposition Pg 7, lines 18-24)
Here's what I have for arguments and the order.
Any advise on the order or the wording of the arguments?
STATEMENT OF QUESTIONS INVOLVED
1. BOTH THE TRIAL COURT AND THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION OF THE LAW- DNR ORDER 3.100(2) AND LEGISLATION.
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
2. 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.
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
3. THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION THAT THE DEFENDANT/APPELLEE’S STATEMENTS WERE SUBSTANTIALLY TRUE AND IMPROPERLY MADE A DETERMINATION THAT THE LIBELOUS STATEMENTS WERE NOT ACTIONABLE.
There is no question that summary judgment is not warranted if the letter is capable of two meanings¬one defamatory and the other innocent. McCue v. Equity Coop Pub. Co. of Fargo, [39 N.D. 190, 167 N.W. 225 (1918)]. Supra.
If an innuendo is involved, the question of whether the alleged defamation is fairly warranted by the writing is one of law for the court to decide. Upon finding a reasonable possibility that the ascribed libelous meaning can be given to the material alleged to be defamatory, it is for the jury to determine if the libelous meaning was intended or conveyed. Ellsworth v. ******dale-Hubbell Law Dictionary, 69 N.D. 610, 289 N.W. 101 (1940).
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
4. BOTH THE TRIAL COURT AND THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION THAT THE PLAINTIFF/APPELLANT DID NOT SHOW ACTUAL MALICE.
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
Any advise on the order or the wording of the arguments?
STATEMENT OF QUESTIONS INVOLVED
1. BOTH THE TRIAL COURT AND THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION OF THE LAW- DNR ORDER 3.100(2) AND LEGISLATION.
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
2. 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.
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
3. THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION THAT THE DEFENDANT/APPELLEE’S STATEMENTS WERE SUBSTANTIALLY TRUE AND IMPROPERLY MADE A DETERMINATION THAT THE LIBELOUS STATEMENTS WERE NOT ACTIONABLE.
There is no question that summary judgment is not warranted if the letter is capable of two meanings¬one defamatory and the other innocent. McCue v. Equity Coop Pub. Co. of Fargo, [39 N.D. 190, 167 N.W. 225 (1918)]. Supra.
If an innuendo is involved, the question of whether the alleged defamation is fairly warranted by the writing is one of law for the court to decide. Upon finding a reasonable possibility that the ascribed libelous meaning can be given to the material alleged to be defamatory, it is for the jury to determine if the libelous meaning was intended or conveyed. Ellsworth v. ******dale-Hubbell Law Dictionary, 69 N.D. 610, 289 N.W. 101 (1940).
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
4. BOTH THE TRIAL COURT AND THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION THAT THE PLAINTIFF/APPELLANT DID NOT SHOW ACTUAL MALICE.
Plaintiff/Appellant contends the answer should be YES.
Defendants/Appellee’s answers no.
The Cheboygan 53rd Judicial Circuit Court would answer no.
The Court of Appeals would answer no.
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quincy
Senior Member
First I wanted to address a few of Quaere's comments.
We disagree, Quaere, on the public figure/private figure issue - although courts do, as well, so our disagreement here is understandable. Courts are all over the board on this one, with judge's decisions to designate a Plaintiff a public or a private figure varying significantly from one judge to another and from one court to another.
What can be said about private figures becoming limited public figures, however, is this: Private figures can become limited public figures for the purpose of a defamation action IF the private figure injects himself into a controversy, is thrust or dragged into a controversy, has more than a minimum role in the controversy, or tries to engage the public attention in order to influence public opinion over the controversy. But, whether drawn into the public controversy willingly or involuntarily does not matter. What matters is that the private person becomes an integral part of the controversy.
I did provide jci earlier with some caselaw to help support his contention that he was a private figure and not a public figure for this action, however, and certainly his timeline can help him argue the point - but both the trial court and the court of appeals were satisfied that jci made himself a public figure, thereby making it essential to his defamation action that he prove the letter writers wrote with actual malice. It was the failure to prove actual malice that resulted in the court of appeal's summary disposition - and they stated that the remaining arguments did not have to be addressed because jci failed in his burden to prove that the letters were actionable.
As for the finding by the court that the letters were substantially true, this goes to jci's original arguments before the trial court, where he argued that the letters were defamation per se (which would allow for damages without a showing of damages). HOWEVER, when a word has more than one meaning, one innocent and one defamatory, the word CANNOT BE defamation per se (which allows for only ONE meaning that is defamatory in and of itself).
One definition of "albino" (when taken in CONTEXT of the letters written, and not on its own) is a word used to describe a deer in Michigan that, at the time of jci's deer kill, was illegal to shoot. Therefore, to say that someon killed an albino deer could be to say he committed a misdemeanor in Michigan.
The other definition of "albino" (and it does not have to be taken in context of the letters) is any animal or plant abnormally lacking in color (colorless or all-white). This is the innocent meaning.
Courts have generally ruled that, where there is an innocent and a defamatory meaning to a word, the defendants are given the benefit of the doubt and the innocent meaning is given to the word.
We disagree, Quaere, on the public figure/private figure issue - although courts do, as well, so our disagreement here is understandable.
Courts are all over the board on this one, with judge's decisions to designate a Plaintiff a public or a private figure varying significantly from one judge to another and from one court to another. What can be said about private figures becoming limited public figures, however, is this: Private figures can become limited public figures for the purpose of a defamation action IF the private figure injects himself into a controversy, is thrust or dragged into a controversy, has more than a minimum role in the controversy, or tries to engage the public attention in order to influence public opinion over the controversy. But, whether drawn into the public controversy willingly or involuntarily does not matter. What matters is that the private person becomes an integral part of the controversy.
I did provide jci earlier with some caselaw to help support his contention that he was a private figure and not a public figure for this action, however, and certainly his timeline can help him argue the point - but both the trial court and the court of appeals were satisfied that jci made himself a public figure, thereby making it essential to his defamation action that he prove the letter writers wrote with actual malice. It was the failure to prove actual malice that resulted in the court of appeal's summary disposition - and they stated that the remaining arguments did not have to be addressed because jci failed in his burden to prove that the letters were actionable.
As for the finding by the court that the letters were substantially true, this goes to jci's original arguments before the trial court, where he argued that the letters were defamation per se (which would allow for damages without a showing of damages). HOWEVER, when a word has more than one meaning, one innocent and one defamatory, the word CANNOT BE defamation per se (which allows for only ONE meaning that is defamatory in and of itself).
One definition of "albino" (when taken in CONTEXT of the letters written, and not on its own) is a word used to describe a deer in Michigan that, at the time of jci's deer kill, was illegal to shoot. Therefore, to say that someon killed an albino deer could be to say he committed a misdemeanor in Michigan.
The other definition of "albino" (and it does not have to be taken in context of the letters) is any animal or plant abnormally lacking in color (colorless or all-white). This is the innocent meaning.
Courts have generally ruled that, where there is an innocent and a defamatory meaning to a word, the defendants are given the benefit of the doubt and the innocent meaning is given to the word.
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quincy
Senior Member
More stuff:
It is also a common finding by courts that a layman is not held to the same standards as a lawyer when it comes to using legal terms. The meaning of a word is considered used in its natural sense, a sense understood by the populace as a whole (or sometimes the community as a whole) and not the select few who understand legal terminology. Therefore, a layman's use of certain legal or technical terms will not destroy the "truth" or "substantial truth" of a statement.
This is another area, however, where courts have conflicting opinions.
Michigan's "fair comment" statute, by the way, protects false statements of fact if the statements are honestly believed to be true and are published in good faith (or with an absense of actual malice). That is why the courts focussed on "actual malice" instead of opinion in regards to the letters, I believe. The Court of Appeals did address the fact that they found the letters to be opinion, however.
And, actually a collectable damage for a defamation action could be for "feelings" (mental anguish and suffering). And jci should be notified by the clerk of the Supreme Court on any procedural errors, so that is not as much of a worry here.
And, finally, one final comment to Quaere: In the Michigan Supreme Court, it is a Commissioner who reviews the application and the court records and evidence. After the review, the Commissioner writes a thorough report detailing the case records and evidence, and then he writes a recommendation based on his review. This is what the Court Justices see. So you are right that the Justices will probably not see the case at all - just the Commissioner's report of the case - unless the Commissioner has recommended a conference and review, or the Justice's disagree with the Commissioner's recommendation.
It is also a common finding by courts that a layman is not held to the same standards as a lawyer when it comes to using legal terms. The meaning of a word is considered used in its natural sense, a sense understood by the populace as a whole (or sometimes the community as a whole) and not the select few who understand legal terminology. Therefore, a layman's use of certain legal or technical terms will not destroy the "truth" or "substantial truth" of a statement.
This is another area, however, where courts have conflicting opinions.
Michigan's "fair comment" statute, by the way, protects false statements of fact if the statements are honestly believed to be true and are published in good faith (or with an absense of actual malice). That is why the courts focussed on "actual malice" instead of opinion in regards to the letters, I believe. The Court of Appeals did address the fact that they found the letters to be opinion, however.
And, actually a collectable damage for a defamation action could be for "feelings" (mental anguish and suffering). And jci should be notified by the clerk of the Supreme Court on any procedural errors, so that is not as much of a worry here.
And, finally, one final comment to Quaere: In the Michigan Supreme Court, it is a Commissioner who reviews the application and the court records and evidence. After the review, the Commissioner writes a thorough report detailing the case records and evidence, and then he writes a recommendation based on his review. This is what the Court Justices see. So you are right that the Justices will probably not see the case at all - just the Commissioner's report of the case - unless the Commissioner has recommended a conference and review, or the Justice's disagree with the Commissioner's recommendation.
Will this help
This was entered into the record and is on the Case Register of Actions.
PLAINTIFF’S ANSWERS TO DEFENDANT H’S FIRST SET OF INTERROGATORIES
31. Please give the names and address of any person who interviewed you or talked to you, either in person or by telephone, or otherwise communicated to you, including but not limited to electronic communications, concerning the happening of any incident complained of in your complaint, your injuries and/or any of your claims.
a. Please state the name of such person and that person's address.
b. Please state the capacity, title or other interest which would give the person or persons any reason to discuss these subjects with you.
c. Please state the reason for and the content of any conversation, correspondence or other communication of any kind.
Pansy – Pansy approached me at Bob’s Place in town. In front of a full crowd at Bob’s Place, she ridiculed me about the alleged “pet Albino deer” I had taken.
Penny – Penny is a cashier at local Village Market in town. She started the conversation and I just replied. The content of our conversation was, if I was the person who harvested the white deer, and how I was the talk of the entire break room.
Gail - Troubled by public bashing and damage to deer. The content of our conversation was the injustice that was done to myself and family and the damage to my once in lifetime deer. A phone call she received from her brother, from a neighbor, stating “What’s all the fuss about? I’ve been seeing the “pet Albino deer” every day for the last couple days”.
Corey - Problems in the community, damage to the deer’s hyde, and violation of my right to shoot any legal deer I wanted, was discussed. He also informed me of two conversations he heard at his place of business. The first was a gentleman who stated “look there goes the local poacher.” The second was a different gentleman stating he “just came from the local coffee shop and man there are a lot of people pissed off and talking about the guy who shot that “pet Albino deer” in the papers.”
Jeff – I talked with Patrolman Jeff regarding harassment calls I was receiving from the H’s residence. He also informed me that he had read the letters in the paper.
Jamie – The content of our conversation was the injustice that was done to myself and family and the damage to my once in lifetime deer. Jamie also informed me of Don xxx making the statement “he better watch his back, some guys are talking about going and shooting his dog.”
Don – Don is the principle at the High School in town. I had to go speak with Mr. don regarding harassment from students, and more troubling harassment from an English teacher Mr. Fletcher. He also informed me that he had read the letters in the paper.
Laurie – Laurie was at the Traverse City Hunting & Fishing Expo in Traverse City between March 11th – March 13th, She was at the show with her boyfriend. Her boyfriend had made the comment “they should have strung you up by your balls for shooting that deer!”
46. What information, evidence or witnesses do you have that such statements were made with ill will or malice.
ANSWER: 1) “reckless disregard of the truth” on # 4 of Defendant H's Affirmative Defenses, he stated “H was simply expressing in a letter to the editor, what was common talk or rumor in the community” Showing no regard for the truth!
2) Statements made at local Barber shop regarding if Plaintiff tried to sue you he would be sorry!
3) Statement made to Rob xxx – “That guy sent me a certified letter, if he tries to sue me I have a lot of money and he will pay dearly.”
jci63 - depostion
Q> Okay. So is it your complaint that your business has been afected--and I'm not interested in hearing about processing paperwork or anything like that-- but if someone has refused to give you business, I'd like to have you tell me about that. Who is that person
A> Terry XXXX
Q> Did MR. XXXX tell you whether of not it was that fact that your picture was in the paper with the white deer, or something else that caused him to make these comments to you?
A> Due to the letters that were written. And at that point I didn't press the issue, because I was embarrassed.
Q> Did he use the words "letters that were written" or did he talk about your--say you shot shot the white deer
A> I believe he referenced the letters that were written, nothing about my picture.
I have over a 6' stack of documents pertaining to this case, just tell me what exactly I need to show, in your opinion, to win this application for leave to appeal!
This was entered into the record and is on the Case Register of Actions.
PLAINTIFF’S ANSWERS TO DEFENDANT H’S FIRST SET OF INTERROGATORIES
31. Please give the names and address of any person who interviewed you or talked to you, either in person or by telephone, or otherwise communicated to you, including but not limited to electronic communications, concerning the happening of any incident complained of in your complaint, your injuries and/or any of your claims.
a. Please state the name of such person and that person's address.
b. Please state the capacity, title or other interest which would give the person or persons any reason to discuss these subjects with you.
c. Please state the reason for and the content of any conversation, correspondence or other communication of any kind.
Pansy – Pansy approached me at Bob’s Place in town. In front of a full crowd at Bob’s Place, she ridiculed me about the alleged “pet Albino deer” I had taken.
Penny – Penny is a cashier at local Village Market in town. She started the conversation and I just replied. The content of our conversation was, if I was the person who harvested the white deer, and how I was the talk of the entire break room.
Gail - Troubled by public bashing and damage to deer. The content of our conversation was the injustice that was done to myself and family and the damage to my once in lifetime deer. A phone call she received from her brother, from a neighbor, stating “What’s all the fuss about? I’ve been seeing the “pet Albino deer” every day for the last couple days”.
Corey - Problems in the community, damage to the deer’s hyde, and violation of my right to shoot any legal deer I wanted, was discussed. He also informed me of two conversations he heard at his place of business. The first was a gentleman who stated “look there goes the local poacher.” The second was a different gentleman stating he “just came from the local coffee shop and man there are a lot of people pissed off and talking about the guy who shot that “pet Albino deer” in the papers.”
Jeff – I talked with Patrolman Jeff regarding harassment calls I was receiving from the H’s residence. He also informed me that he had read the letters in the paper.
Jamie – The content of our conversation was the injustice that was done to myself and family and the damage to my once in lifetime deer. Jamie also informed me of Don xxx making the statement “he better watch his back, some guys are talking about going and shooting his dog.”
Don – Don is the principle at the High School in town. I had to go speak with Mr. don regarding harassment from students, and more troubling harassment from an English teacher Mr. Fletcher. He also informed me that he had read the letters in the paper.
Laurie – Laurie was at the Traverse City Hunting & Fishing Expo in Traverse City between March 11th – March 13th, She was at the show with her boyfriend. Her boyfriend had made the comment “they should have strung you up by your balls for shooting that deer!”
46. What information, evidence or witnesses do you have that such statements were made with ill will or malice.
ANSWER: 1) “reckless disregard of the truth” on # 4 of Defendant H's Affirmative Defenses, he stated “H was simply expressing in a letter to the editor, what was common talk or rumor in the community” Showing no regard for the truth!
2) Statements made at local Barber shop regarding if Plaintiff tried to sue you he would be sorry!
3) Statement made to Rob xxx – “That guy sent me a certified letter, if he tries to sue me I have a lot of money and he will pay dearly.”
jci63 - depostion
Q> Okay. So is it your complaint that your business has been afected--and I'm not interested in hearing about processing paperwork or anything like that-- but if someone has refused to give you business, I'd like to have you tell me about that. Who is that person
A> Terry XXXX
Q> Did MR. XXXX tell you whether of not it was that fact that your picture was in the paper with the white deer, or something else that caused him to make these comments to you?
A> Due to the letters that were written. And at that point I didn't press the issue, because I was embarrassed.
Q> Did he use the words "letters that were written" or did he talk about your--say you shot shot the white deer
A> I believe he referenced the letters that were written, nothing about my picture.
I have over a 6' stack of documents pertaining to this case, just tell me what exactly I need to show, in your opinion, to win this application for leave to appeal!
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- Status