Michigan Supreme Court

[jci63]

2. Even under an "interpretive" reading of MDNR Order 3.100(2), fact issues
existed and the trial. Court relied upon improper evidence; making summary disposition in Appellees' favor improper.

As set forth above, the trial court's essential error was its baseless and improper decision to read provisions and requirements into the MDNR Order that simply did not exist. Even under this loose construction of the Order, however, i.e., reading into the order some basis for going beyond its plain language to determine what conduct other than or in addition to that engaged in by Appellant might justify or excuse a violation of that plain language, the trial court erred in granting summary disposition to Appellees.

3. The trial court ruled that the deer at issue may have been an albino (a "legal" albino) as a matter of fact. Ignoring record evidence to the contrary.

In its opinion granting summary disposition, the trial 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. This factual ruling by the trial 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 2, in which MDNR pathologist states that the deer's eye color "eliminates this as being an albino animal,"

• MDNR Incident Report, Exhibit 3, stating that photos of the deer "confirmed" it was a piebald.

• MDNR Sgt. xxx deposition testimony, p. 22, lines 9-10, that in MDNR photographs, the deer's eyes did not appear to be pink. Exhibit 4.

• Naturally occurring brown hair in numerous areas of deer's fur. Necropsy record, Exhibit 2, 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 5.

•Officer xxx12-21-04 daily report - inspection of deer "to make sure it was not an albino" and "confirmed piebald." Exhibit 6.

Yet, the trial court concluded that, as a matter of law, the deer taken by Appellant may in fact have been a "legal" albino. Exhibit 7. In so doing, the trial 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 trial court erred and should be reversed.

4. THE TRIAL COURT ERRED BY ITS DECISION OF LAW, BASED ON THE “EXPERT” LEGAL INTERPRETATION BY MICHIGAN DNR PERSONNEL OF MDNR 3.100(2)

A
On pages 45-46 of the November 20, 2006 transcript, the trial court stated:

Previously ... I was of the opinion that an albino deer was illegal to shoot. .. the
DNR has indicated [ - ] these are the individuals in charge of enforcement [-] that
an albino deer - what is technically an albino deer can be a legal target and legal kill if it has a certain amount of brown coloration or stain on it, and there is nothing to refute that that's the law. I mean, that is what the DNR testified to.... Therefore, what's different today than it was before discovery had concluded was to indicate somebody has shot an albino deer is not to accuse them of a crime. As the DNR has testified to there are instances where shooting an albino deer can be an illegal [sic, a legal] act. Emphasis supplied. Exhibit 7.

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

Our Supreme Court has explained that the function of an expert witness is to supply expert testimony. This testimony includes opinion evidence, when a proper foundation is laid, and opinion evidence may embrace ultimate issues of fact. However, the opinion of an expert may not extend to the creation of new legal definitions and standards and to legal conclusions. Downie v. Kent Products, Inc., 420 Mich. 197,205,362 N.\V.2d 605 (1984). Further, an expert witness is not permitted to tell the jury how to decide the case. People v. Drossart, 99 Mich.App.66~79, 297}.J~V/.2d863 (1980). A witness is prohibited from opining on the issue of a party's negligence or nonegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or [the accused's] guilt or innocence." Id., pp. 79-80,297 N.W.2d 863. Therefore, it is error to permit a witness to give the witness' own opinion or interpretation of the facts because doing so would invade the province ofthe jury. Id., p. 80,297 N.W.2d 863. An expert witness also may not give testimony regarding a question of law, because it is the exclusive responsibility of the trial court to find and interpret the law. Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 592, 513 N.W.2d 773 (1994).

 

[quincy]

Interesting.

The fact that you were the catalyst in getting the "albino deer law" changed now opens you up to being hated by even MORE people in Michigan. Expect unflattering letters to the editor should this information ever be publicized.

By the way, I read with interest the "obstruction of justice" section of the Director's letter to you. It was unwise to publicly accuse the law enforcement officers of obstruction of justice and perjury, as such accusations are defamatory if false. I certainly hope you can prove the truth of those charges, should the officers decide to sue.

I am going to recommend at this point that you delete all of the identifying information you have posted in this thread - all real names and locations and the information from the depositions need to be removed. The letter from the Director should be deleted - or significant portions of it edited out.

Thanks.

 

[jci63]

"The fact that you were the catalyst in getting the "albino deer law" changed now opens you up to being hated by even MORE people in Michigan. Expect unflattering letters to the editor should this information ever be publicized."

Actually this has been published in several Magazines thought-out the State of Michigan. The only letters have been ones of encouragement with some donations for standing up for what is right.

"By the way, I read with interest the "obstruction of justice" section of the Director's letter to you. You were unwise to publically accuse the law enforcement officers of obstruction of justice and perjury, as such accusations are defamatory if false. I certainly hope you can prove the truth of those charges, should the officers decide to sue. "

DNR Retired Lt. XXX, Sgt. XXXX and Officer XXXXX were investigated by the State of Michigan Attorney Generals Criminal Division (still pending), the Michigan State Police, the Otsego County Prosecutor, Cheboygan County Prosecutor and the U.S. Federal Attorneys Office for perjury, obstruction of justice and violation of ones Constitutional Rights. The DNR Officers were exonerated from any wrongdoing by all agencies except the Attorney Generals Criminal Division.

"I am going to recommend at this point that you delete all of the identifying information you have posted in this thread - all real names and locations and the information from the depositions need to be removed. The letter from the Director should be deleted - or significant portions of it edited out."

I believe I delete what you asked. I try not to post any names of people or locations involved.

I am justing trying to seek advise on continuing my Appeal to the Supreme Court, suppling all the information you request for your review. It has been very heplful to get expert advise and what is needed to in your opinion present a solid Appeal.

Thank you for all you do on this site. You help many people avoid extra costs in no chance litagation.

 

[quincy]

Thanks, jci, for editing your posts.

You posted a lot of additional stuff since the Director's letter (now deleted) and it will take me awhile to get to it. I will post back after I have had a chance to read and digest what you wrote.

In the meantime, I do want you to understand that I understand you suffered reputational injury here, and I am not trying to downplay that or trying to discourage you entirely from remedying this injury through legal means. However, I also have to tell you that I do not see the type of defamation in the published letters that would normally lead to a successful defamation action. Even without the "public figure, actual malice" complication you now have with your proofs.

The letters are almost entirely clearly opinion. Referencing the deer as "albino" seems to be an honest description by the letter writers of the deer they had watched in their area for years. "Albino" did not seem to be used as a way for the writers to say that the killing of the deer was a criminal act.

I thought, at the start of these posts, that there was a DIRECT false accusation of a crime made about you - and that, of course, would be defamatory. But I am not seeing in the evidence you are posting that you were clearly or directly defamed by the letter writers, despite the reputational injury you have suffered. I am not sure the injury was entirely the result of the letters, but perhaps more the result of the deer kill itself and the publicity surrounding your deer kill (some of it self-generated). This in turn led to the letters being written, a natural response to a matter of public interest and controversy.

I am also not sure the letters would have been much different had the deer been brown, if the people had similarly befriended the deer and watched it grow up as they had with your piebald deer. In other words, the letters seem to be concerned not so much with the legality or illegality of the kill as with the fact that there was a kill at all.

 

[jci63]

4. THE TRIAL COURT ERRED BY ITS DECISION OF LAW, BASED ON THE “EXPERT” LEGAL INTERPRETATION BY MICHIGAN DNR PERSONNEL OF MDNR 3.100(2)

On pages 45-46 of the November 20, 2006 transcript, the trial court stated:

Previously ... I was of the opinion that an albino deer was illegal to shoot. .. the
DNR has indicated [ - ] these are the individuals in charge of enforcement [-] that
an albino deer - what is technically an albino deer can be a legal target and legal kill if it has a certain amount of brown coloration or stain on it, and there is nothing to refute that that's the law. I mean, that is what the DNR testified to.... Therefore, what's different today than it was before discovery had concluded was to indicate somebody has shot an albino deer is not to accuse them of a crime. As the DNR has testified to there are instances where shooting an albino deer can be an illegal [sic, a legal] act. Emphasis supplied. Exhibit 7.

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

Our Supreme Court has explained that the function of an expert witness is to supply expert testimony. This testimony includes opinion evidence, when a proper foundation is laid, and opinion evidence may embrace ultimate issues of fact. However, the opinion of an expert may not extend to the creation of new legal definitions and standards and to legal conclusions. Downie v. Kent Products, Inc., 420 Mich. 197,205,362 N.\V.2d 605 (1984). Further, an expert witness is not permitted to tell the jury how to decide the case. People v. Drossart, 99 Mich.App.66~79, 297}.J~V/.2d863 (1980). A witness is prohibited from opining on the issue of a party's negligence or nonegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or [the accused's] guilt or innocence." Id., pp. 79-80,297 N.W.2d 863. Therefore, it is error to permit a witness to give the witness' own opinion or interpretation of the facts because doing so would invade the province ofthe jury. Id., p. 80,297 N.W.2d 863. An expert witness also may not give testimony regarding a question of law, because it is the exclusive responsibility of the trial court to find and interpret the law. Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 592, 513 N.W.2d 773 (1994).

 

[jci63]

Bacon v. Michigan Central R. Co., 66 Mich. 166, 173, 33 N.W. 181 (1887),

stated:

The effect, therefore, of showing that the communication was made upon privileged occasion is prima facie to rebut the quality or element of malice, and casts upon the plaintiff the necessity of showing malice in fact — that is, that the defendant was actuated by ill will in what he did and said, with a design to causelessly or wantonly injure the plaintiff, — and this malice, in fact, resting, as it must, upon the libelous matter itself and the surrounding circumstances tending to prove fact and motive, is a question to be determined by the jury.

 

[quincy]

Okay, jci63. I have read what you posted earlier. I have a few comments first, but also some caselaw for you to check that could be of assistance to you in your appeal.

First, it appears that the Court determined there was NO defamation per se in your case, which means you would need to prove the existence of harm resulting from the defamatory comments made. The Court said that "It appears that it can be a legal kill. . .to indicate somebody has shot an albino deer is not to accuse them of a crime."

You will also need to show actual malice.

Complaints made to the DNR are not a basis for any defamation action - so the fact that the letter writers questioned the report, and the DNR investigated their concerns, has no relevance to your defamation action. You need to stick to the letters themselves and what they say.

The fact that you asked for retractions has no bearing, either, as a retraction would only have benefitted the defendants and mitigated their damages, had you been successful with your suit. In addition, because of the format of letters to the editor, you had the opportunity to refute all charges (real or imagined) made by the defendants in their letters to the editor, mitigating the harm caused by their letters.

You are jumping to unfounded conclusions when you say that the defendants knew the statements were false and "wanted to publicly accuse" you of committing a criminal offense. One does not necessarily follow the other.

Okay, I think your appeal may benefit by looking at Peck v. Coos Bay Times Publishing Co, 122 Or. 408, 259 P.2d 307, 311 (1927).

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.

You must be able to prove in your appeal that the term "albino deer," as presented to the audience of readers in your community in the context of the letters published, is most commonly understood to mean the particular legally protected albino deer rather than the descriptive color of the deer.

Check out Restatement (Second) of Torts, section 563 (1977) and Restatement (First) of Torts, section 614 comment c.

I am, when I get the brief opportunities to, reviewing Michigan caselaw to see how you can present your appeal in its most winnable form. I think this is a longshot, jci, and I seriously doubt you will have success with your appeal, but if you want to charge ahead, I will see what I can locate that might assist you.

By the way, I do not know if you had an attorney's assistance originally with your case (although I understand you have an attorney now). Why did you choose defamation as a sole action, and not file a "false light, invasion of privacy" action, which could very well have had a better chance of success? Just curious.

 

[jci63]

Excellent, I thank you.

Regarding an albino being a legal kill at any time, please review DNR Order 3.100(2) BELOW.

"It appears that it can be a legal kill. . .to indicate somebody has shot an albino deer is not to accuse them of a crime."

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.

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

Our Supreme Court has explained that the function of an expert witness is to supply expert testimony. This testimony includes opinion evidence, when a proper foundation is laid, and opinion evidence may embrace ultimate issues of fact. However, the opinion of an expert may not extend to the creation of new legal definitions and standards and to legal conclusions. Downie v. Kent Products, Inc., 420 Mich. 197,205,362 N.\V.2d 605 (1984). Further, an expert witness is not permitted to tell the jury how to decide the case. People v. Drossart, 99 Mich.App.66~79, 297}.J~V/.2d863 (1980). A witness is prohibited from opining on the issue of a party's negligence or nonegligence, capacity or noncapacity to execute a will or deed, simple versus gross negligence, the criminal responsibility of an accused, or [the accused's] guilt or innocence." Id., pp. 79-80,297 N.W.2d 863. Therefore, it is error to permit a witness to give the witness' own opinion or interpretation of the facts because doing so would invade the province ofthe jury. Id., p. 80,297 N.W.2d 863. An expert witness also may not give testimony regarding a question of law, because it is the exclusive responsibility of the trial court to find and interpret the law. Charles Reinhart Co. v. Winiemko, 444 Mich. 579, 592, 513 N.W.2d 773 (1994).

 

[quincy]

The only elements of defamation that you have proof of, currently, are that you were identified (element one) and that what was said about you was published (element two).

You do not have sufficient evidence of defamation (element three), reputational injury (element four) or fault (element five) - so these are the areas where your appeal must concentrate (and these are BIG areas).

To show defamation, you MUST be able to show that referencing "albino deer" in the letters led at least one person to believe you committed a crime by shooting the deer. Without this, you have not been defamed by the letters. Insulted, yes. Defamed, no.

Refer to Rouch v Enquirer & News of Battle Creek, 440 Mich 238, 258; 487 NW 2d 205 (1992) to see the arguments you will face. The defense will try to show that the statements made in the letters were "substantially true," and that the term albino deer was used in a popular (descriptive) sense and not a technical sense.

Your task will be to show the court that, in a community filled with hunters, the word "albino" is thought of, most popularly, as a description of a protected species and not as a description of the color of a deer. You need to show that the defendants, as hunters or part of a hunting community, were familiar with the distinction between "albino" and "piebald", and they used "albino" knowing the term referred to a protected species and that they knew what the implications were when referring to the deer as albino.

You may want to look at newspaper archives, to see if "albino" is used most often to refer to the protected species. If the term is always or mostly used in this manner in the community where the letter-writers reside, this helps in proving there was an understanding among those in the community that "albino" = protected species, rather than albino = colorless or white.

To show reputational injury (and you will need to demonstrate this, as the Court is not accepting the fact that "albino deer kill" is defamation per se), you need demonstration of your business income loss (comparable records from the year prior to defamation to year of defamation) or proof of shunning or hatred or ridicule or lowered esteem suffered by you in your community (testimony from witnesses, perhaps). Refer to American Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich APP 695.702; 609 NW 2d 607; 2000) for "lower esteem in community."

And then you face the biggest hurdle of showing fault on the part of the letter-writers. You must show that the letters were written about you for the explicit purpose of shaming you or punishing you or whatever - actual malice. You must show intent.

I would not bother trying to argue your "limited public figure" designation in your appeal. This would be hard to dispute, as the letters would not have been written had you not been placed, or placed yourself, in the public eye. This does mean you MUST show actual malice, but I honestly do not believe you have any chance of winning an argument on the limited public figure designation. (see Gertz v Robert Welch, Inc, 418 US 323, 342; 94 S Ct 2997; 41 KEd 2d 789; 1974; and New York Times Co v Sullivan, 376 US 254; and Grebner v Runyan, 132 Mich App, 1984).

Summary disposition was granted because the court stated there was no genuine issue of material fact. You are saying in your appeal that the genuine issue of material fact is that, in the community where the letters were published, albino deer always, or almost always, equals protected species, and that the killing of a protected species always equals a criminal act. Therefore, being accused of killing an albino deer equals, in the minds of the readers of the letters, the committing a criminal act, the false accusation of which is defamation.

 

[jci63]

I will be filing the Appeal on Tuesday, October 28, 2008. I have to copy the exhibits and get 11 copies of the entire project and I ready to file in Lansing.

One final question, the last time we were in court I was represented by an attorney. What do I need to do to file this Pro Per.

What kind of paper work must I send to the Defendants or is this paperwork ok.


Thanks

jci63

 

[quincy]

You are filing today, huh?

Go to http://courts.michigan.gov/scao/selfhelp/selfhelphome.htm.

This court site will tell you exactly what needs to be filed and sent, and to whom. Court forms are available here, as well.

I wish you luck on this. . . . . . . but I am not optimistic that the Supreme Court will grant your appeal.

 

[jci63]

I have all the paper work complete and all the copies etc.

One final question, the last time we were in court I was represented by an attorney. What do I need to do to file this Pro Per.

 

[quincy]

Oops. Just saw your post, jci. I imagine the court clerk advised you on putting IN PRO PER on your cover letter.

Post back with updates.

 

[jci63]

Filed and date stamped, WOW what a task.

 

[quincy]

Yes. After all of your efforts, and all of the time you had to invest in accomplishing what you have just accomplished, it becomes a little easier to understand why attorneys get paid so well, huh?!