Michigan Supreme Court

[jci63]

Quaere said:

"This thread is huge and I am having trouble following the timeline of the events in the case. Could you please post a SIMPLE chronological list of events? Something like this"

Chronological List of Events​

December 19th 2004 A) At approximately 4:50 pm I harvested piebald deer
with my muzzleloader.


December 21st 2004

A) At approximately 1:00 pm took piebald deer to
Indian River D.N.R. Field Office.
B) Took piebald deer to Pat & Gary’s party store. Picture was taken and hung on bulletin board with my name on picture.
C) Took piebald deer to Staitsland Resorter, picture was taken
For paper.

December 22nd 2004

A) Took piebald deer to Petoskey News Review, Picture was taken for paper.

December 27th 2004

A) Dropped piebald deer of at Taxidermist To get full body mount.

December 28th 2004

A) At 11:59am my wife received harassing call from Defendant H
B)Took piebald deer head to D.N.R station in Gaylord.

December 29th 2004

A) My piebald deer appeared on 9 & 10 News Hooks & Hunting segment

B) Petoskey News Review published a picture of me with my piebald deer.

December 30th 2004

A) At 11:02 received harassing call from Defendant H
B) Made complaint at local Police Department
C) Straitsland Resorter published picture with me and my piebald deer, along with letters from the editor, from Linda, Gertrude, Gerald & Mary, Judy and Laura.

January 5th 2005

A) News Review published article from George xxx explaining deer was legal.'
B) Gaylord Harold Times published a picture of me with my piebald deer.

January 6th 2005

A) Per TAxidermist – D.N.R. was at Taxidermist and took samples of the deer hyde.
B) xxxx Press published an article in sports section on my piebald deer.
C) Resorter published articles in paper from myself and Defendant Ron.
16) My article and Ron Hagermans article

January 7th 2005

A) Was informed from Bob from taxidermists that my piebald deer hyde was damaged.
B) called Attorney
C) Picked up piebald deer hyde from Taxidermist.

January 8th 2005

A) D.N.R. came to house questioning me about piebald
Deer. Accusations were – 1) shot deer out of season, 2) applied shoe polish or hair die to make brown areas 3) I was trespassing when shot deer.

January 12th 2005

A) Received D.N.R. TB tag in the mail, stating deer
was 2.5 years old.

January 18th 2005

A)News Review published letter from Defendant Ron
B) News Review published letters from myself and Chris .

January 27th 2005

A) Took piebald deer to another taxidermist to get full body mount.

February 1st 2005

A) News Review published letter from Richard.

February 23 2005

A) D.N.R. came to my house and talked with my wife stating
“samples came back negative, and I was cleared of all charges”

March 11th – 13th 2005

A) Took piebald deer to Hunting & Fishing Expo.

March 18th 2005

A) Took piebald deer to Practical Sportsman Hunting
awards Banquet.

May 17th 2005

A) Sent retraction letters out to News Review,
Resorter, Linda, Gertrude, Gerald & Mary, Laura, Judy and Ron.

June 26th 2005

A) took piebald deer to Michigan Madness Outdoors and
put on display in sporting goods store.

November 1st 2005

A) Michigan Hooks & Bullets Magazine did an article on my piebald deer titled “A Cold Hunt For A Rare Trophy”

December 29th 2005

A) Filed Complaint at 53rd Judicial Circuit Court in Cheboygan against defendants

 

[jci63]

quincy said - Once again, Quaere, there is NO defamation PER SE here. No matter how the letters are read.

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

Court of Appeals Opinion
In Michigan, words that falsely impute the commission of a crime constitute defamation
per se, and are actionable even in the absence of an ability to prove actual or special damages.MCL 600.2911(1); Burden v Elias Bros Big Boy Restaurants, 240 Mich App 723, 728; 613 NW2d 378 (2000); Tumbarella v Kroger Co, 85 Mich App 482, 493; 271 NW2d 284 (1978).

Defendants letter

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*******…..


• Defendants letter stated the deer was shot on December 20, 2004, hunting season ended on December 19, 2004.

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 (DNR Sgt.)

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 Order:

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.

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.

 

[jci63]

Ok

Now can we please discuss one topic at a time, then we can move on to the next issue.

I can post the information regarding each debate topic, then we can move on to the next

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.

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.

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).

4. BOTH THE TRIAL COURT AND THE APPEALS COURT ERRED IN THEIR IMPROPER DETERMINATION THAT THE PLAINTIFF/APPELLANT DID NOT SHOW ACTUAL MALICE.

 

[quincy]

How did you show actual malice, jci? I do not think you showed actual malice.

Other than that, your first three issues are good, but reverse the order of 2 and 3. I question Number 4 being included at all.

Your task now is to support your issues with the caselaw that applies. Review the cases that have been posted here already, on private figure/public figure designations and substantial truth. Use Supreme Court cases where possible, Michigan caselaw where applicable, and Restatement of Torts where necessary. Pull in other state cases only if desperate.

And, despite obvious feelings to the contrary , albino is NOT a word that is or can be defamatory per se. Albino requires context (ie. He killed an albino deer). Defamation per se refers to words that are, on their own and in and of themselves, defamatory (thief, child molester, rapist, murderer, unchaste). Albino just does not qualify, as it has an innocent meaning.

 

[jci63]

So if I am not confused enough already!

Can you please pick a position and stick with it****************************

Is stating someone killed an albino deer, accusing them of committing a crime?

quincy said:

And, despite obvious feelings to the contrary , albino is NOT a word that is or can be defamatory per se. Albino requires context (ie. He killed an albino deer). Defamation per se refers to words that are, on their own and in and of themselves, defamatory (thief, child molester, rapist, murderer, unchaste). Albino just does not qualify, as it has an innocent meaning.

quincy (post 22) said:

In Peck, it says that the court and jury perform shared tasks in determining whether a communication is capable of a defamatory meaning. If the court determines that there is a defamatory meaning possible, then the matter is submitted to the jury for a determination of whether the defamatory meaning was understood by those receiving the communication.

In other words, some words have two meanings - an innocent meaning and a defamatory meaning. Such is the case with "albino deer." In one sense, it is used to describe the appearance of the deer. In another sense, it is used to describe a particular deer that, in Michigan at the time of your kill, was illegal to shoot.

Courts look at what sense words are understood by an audience and courts should give language its most common and ordinary meaning. The meaning should be determined by the context in which a word appears and not by taking the individual word or sentence on its own.

The good news is, that once I get a trial, I will need an attorney. And several people here will be very well versed on whats going on

 

[quincy]

I am sticking with the same position I have always had, jci. Albino, in and of itself, is not defamation per se.

Defamation per se is a whole separate beast than defamation, in that something that is defamatory per se does not require any context to make its defamatory nature known and, in addition, injury to the reputation is presumed. What is said, in other words, can only have ONE meaning to be defamatory per se.

With words that are defamatory per se, injury to one's reputation does not have to be demonstrated because there is an presumption that one's reputation has been harmed. To call someone a rapist cannot have an innocent meaning, in other words, and it is reputationally damaging, automatically, with no proof of harm necessary.

That is the difficulty you face with the word "albino." It has two meanings. It can be used in an innocent sense - to describe an animal that lacks normal color. It could also be used, in Michigan at the time you killed your deer, as a description of a type of deer protected by law, the killing of which was illegal.

Whether the term "albino deer" is defamatory or not depends on the context and, to an extent, on the intent or knowledge of the person using the word, or the understanding of the word by others.

If a person describes all animals lacking normal color as albinos (sees a white deer and calls it an albino deer, regardless of brown spots or brown eyes), and if this person has no knowledge of any law that makes killing an albino deer illegal, then "albino deer" has an innocent meaning. To say someone killed an albino deer, to that person's way of thinking, means only that the person killed a white deer. The person is not accusing anyone of a crime, but merely describing the color of the deer that was killed.

So, in your case, the letter writers wrote that you killed an albino deer. That is only defamatory if you can show that the letter writers KNEW that killing an albino deer was illegal in Michigan, and used the word albino to indicate you committed a crime. The trial court judge believed the letters could indicate that, at first, until the testimony of the DNR witness said that sometimes killing an albino deer was legal. Hence your issue number one, the interpretation of 3.100 by the witness, the interpretation of which the trial judge accepted.

What you need to show is that the word albino was NOT used in the innocent "color-describing" way but in a way that implied what you did was illegal. You need to show that the readers of the letters, all residing in an area where hunting is big business and who have knowledge of hunting and hunting laws, read the letters and believed you had committed a crime by killing an albino deer, as clearly stated in 3.100 you would have had your deer actually been an albino.

This all goes to the community in which the letters were published - their knowledge of deer hunting and piebalds and albino deer and the law regarding killing albinos.

So, to sum up, there are TWO meanings that could be applied to the word "albino deer" in Michigan, when used in the context of "He shot an albino deer." Only one meaning is defamatory.

Did the letter writers use the word albino in the defamatory sense? You are saying YES. The writers knew about Michigan law and they knew that using the word "albino" to describe a deer had a special meaning under Michigan law - it meant a protected species, the shooting of which was illegal. And it was in this defamatory sense that the readers understood the use of albino deer.

Whether the meaning of the word albino, as used in the context of the letters, was understood by the readers of the letters to be defamatory, however, should have been left for a jury to decide - not the judge. So this, too, is an issue (number 3 - which should be moved to position number 2 ). This, by the way, would be a good place to include the Peck opinion, and the Restatement of Torts that I cited earlier.

And, I cannot help you with the legal representation when the Supreme Court sends this back to the lower court - however I will be happy to publicize the whole thing and make you a limited public figure.

 

[jci63]

Lets start at the beginning.

How important is it to have a detailed history of events leading up to my application for leave to appeal.

I have over 20 pages.