Rouch v. Enquirer & News of Battle Creek

• Decision Date: 23 February 1987
• Docket Number: Docket No. 75044
• Citation: 398 N.W.2d 245,427 Mich. 157
• Parties: David J. ROUCH, Plaintiff-Appellee, v. ENQUIRER & NEWS OF BATTLE CREEK, Michigan, a Delaware corporation, Defendant- Appellant. 427 Mich. 157, 398 N.W.2d 245, 13 Media L. Rep. 2201
• Court: Michigan Supreme Court

Page 245

398 N.W.2d 245

David J. ROUCH, Plaintiff-Appellee, v. ENQUIRER & NEWS OF BATTLE CREEK, Michigan, a Delaware

corporation, Defendant- Appellant.

Docket No. 75044.

427 Mich. 157, 398 N.W.2d 245, 13 Media L. Rep. 2201

Supreme Court of Michigan.

Argued Jan. 15, 1986.

Decided Dec. 26, 1986.

Rehearing Denied Feb. 23, 1987.

John M. Jereck, Battle Creek, for plaintiff-appellee.

Robert C. Bernius, Pamela J. Brown, Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., James M. Sullivan, Sullivan, Hamilton & Schulz, Battle Creek, for defendant-appellant.

Richard E. Rassel and James E. Stewart, Butzel, Long, Gust, Klein & Van Zile, Detroit, for amicus curriae.

Dawn L. Phillips, Blair B. Hysni, Keywell & Rosenfield, Troy, for amicus curiae.

Herschel P. Fink, Honigman, Miller, Schwartz & Cohn, Detroit, for amicus curiae.

BRICKLEY, Justice.

In this case, arising out of an alleged false newspaper defamation of a private individual who was arrested but not formally charged for rape, it is necessary to determine the applicability of Michigan's statutory "public and official proceedings" statute, M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3), and the viability of its common-law qualified public-interest privilege. Because this case was decided on the basis of summary judgment, only these privilege questions are before us.

I. INTRODUCTION

The facts in this case are undisputed. On December 21, 1979, the Emmett Township police arrested the plaintiff, David J. Rouch, in connection with the rape of a woman in Bedford Township. At the time of the rape, the victim had been babysitting Mr. Rouch's step-children at his ex-wife's home. A standard incident report prepared by the Bedford Township Police Department indicated the name of the complaining party and victim, that Mr. Rouch was a suspect, that the "charge" was "CSC in the 1st degree," that the injury involved "penis/vaginal penitration [sic]," and that a "knife with approx. 6 inch blade" was used as a weapon. Although he was arrested, plaintiff in fact was never formally charged with the crime, and ultimately, someone else was. The Calhoun County Prosecutor's Office had apparently refused to issue a warrant after plaintiff's arrest.

On December 22, 1979, the defendant newspaper published the following article:

"Police arrest suspect in baby-sitter assault.

"A 43-year-old man has been arrested and charged with the sexual assault of a 17-year-old-women [sic] who was baby-sitting with his children at his ex-wife's house on North Finlay Avenue in Bedford Township.

"The suspect has been identified by Bedford Township police as David J. Rouch of 631 Golden Ave. He is free on a $10,000 personal recognizance interim bond pending his arraignment in District 10 Court next week. Rouch is charged with first-degree criminal sexual conduct.

"Police said Rouch allegedly entered the house about 4 a.m. Friday and attacked the young woman. He is said to have used a knife to cut the victim's clothes off, police said.

"The victim later called a relative, who took her to Community Hospital and then called police. The suspect was identified by his children, according to police.

"Rouch was arrested at his home by Emmett Township police, who were informed where he lived by Bedford Township investigators.

"The charge against Rouch was authorized Friday by the Calhoun County Prosecutor's Office."

The defendant's reporter had received the information contained in the article from the Bedford Township Police Department.

The reporter's affidavit indicated that he customarily telephoned the police department in the morning to receive information about newsworthy police activities during the preceding twenty-four hours. He indicated that, on the occasion in question, he had spoken with one or two officers and that he was informed of the details that were contained in the article. The reporter also said that he spoke with the Emmett Township police who confirmed that the arrest had been made. A year later, plaintiff commenced this action for libel.

The plaintiff's complaint alleged that the article was false and defamatory. In its motion for summary judgment, defendant argued that the article was entitled to a qualified privilege under Michigan law, and that, in the absence of proof of malice, it could not be the basis of an action for libel. The trial court agreed. On June 14, 1982, Calhoun Circuit Judge Stanley Everett granted the defendant's motion for summary judgment of no cause of action. The order indicated that unless the plaintiff, within thirty days, established a genuine issue of material fact on the question of malice on the part of the defendant, the order would stand.

The trial court relied on Schultz v. Newsweek, Inc., 668 F.2d 911 (C.A. 6, 1982), a federal case interpreting Michigan law, as support for its finding of a qualified privilege. The court indicated that the privilege covers "matters of general public interest" and that the "reporting of arrests on criminal proceedings involving charges is a matter of general public interest."

The Court of Appeals reversed. Rouch v. Enquirer & News of Battle Creek, 137 Mich.App. 39, 357 N.W.2d 794 (1984). Approaching the issue of privilege first from a constitutional perspective, the Court outlined the history of United States Supreme Court cases on the subject and concluded that

"there is no federal constitutional privilege to report on matters of public interest." Rouch, supra, p. 46, 357 N.W.2d 794.

The Court observed that the majority of states that have ruled on the issue have adopted a negligence standard for determining whether a defendant is liable to a private-figure plaintiff for a defamatory falsehood. See id., p. 46, n. 6, 357 N.W.2d 794.

Regarding the statutory qualified privilege contained in M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3), the Court held that because no warrant was issued in this case, there were no "official proceedings" and the statute was inapplicable. Referring to the general privilege to report judicial proceedings, the Court found that that privilege is limited to the fact of the arrest only, and not the "particular details of the alleged crime." Id., p. 48, 357 N.W.2d 794 (citing 3 Restatement Torts, 2d, Sec. 611, comment [h] ).

Finally, the Court considered the application of a common-law privilege to report matters in the public interest. It assumed the existence of such a privilege in Michigan, but found that the details contained in the instant article did not fall within the privilege. The Court reasoned,

"[T]here is an important distinction between matters which truly promote the public interest and matters which are merely interesting to the public." Id., p. 51, 357 N.W.2d 794 (citing 3 Restatement Torts, 2d, Sec. 598, comment [b] ).

The Court of Appeals concluded "[I]n Michigan, where, as here, the media defendants' publication is not wrapped in a qualified privilege, a private-figure plaintiff need only prove negligence in order to prevail.

"In the present case, the details of plaintiff's alleged crime were merely matters that the public would find generally interesting and not matters 'deserving of robust public debate.' The fact that plaintiff had been arrested for raping his ex-wife's teenage baby sitter and cutting off the baby sitter's clothes with a knife does not contribute to the public's interest in reducing or detecting crime. Instead, it merely maximizes the damage to plaintiff's reputation. Thus, considering the obvious harm to plaintiff's reputation, we conclude that the balance should be struck in plaintiff's favor." Id., pp. 58-59, 357 N.W.2d 794.

Thus, the Court held

"that the trial judge erred by ruling that plaintiff must show that defendant possessed malice when it printed its article. Instead, plaintiff need only show that defendant was negligent in printing the defamatory matter in order for plaintiff to recover his actual damages." Id.

Defendant appealed to this Court, and leave was granted on June 26, 1985. 422 Mich. 937 (1985).

II. THE STATUTORY OFFICIAL PROCEEDINGS PRIVILEGE

Because, if it is applicable, it would determine the outcome of this case, we first discuss the "official proceedings privilege" statute, M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3). The relevant provisions of that statute read:

"No damages shall be awarded in any libel action brought against a reporter, editor, publisher, or proprietor of a newspaper for the publication in it of a fair and true report of any public and official proceeding...."

Although the statute was enacted in 1931, its origins may be traced to much earlier Michigan common law. In 1882, this Court summarized the various common-law privileges available at the time. We described what may be termed a privilege to report judicial proceedings: ¹

"[T]he publication of judicial proceedings taken before magistrates is privileged to the same extent as the proceedings of the trial court...." Miner v. Detroit Post & Tribune, 49 Mich. 358, 359, 13 N.W. 773 (1882).

The privilege was invoked in Jastrzembski v. Marxhausen, 120 Mich. 677, 79 N.W. 935 (1899), which involved an article concerning the plaintiff's alleged elopement with a woman other than his wife. The newspaper claimed the privilege because the story was based on a verbal complaint made by the plaintiff's wife to a police officer. We noted that "[t]he only document filed in the justice's court was a complaint made for nonsupport, and this was not known to the reporters or to defendant." Id., p. 680, 79 N.W. 935. Thus, we held that the privilege did not apply in that "[t]he statements published were not gathered from any proceedings in court, but the information was obtained from parties entirely outside of any court." Id., p. 682, 79 N.W. 935.

The common-law privilege to report judicial proceedings was again claimed in Sherwood v. Evening News Ass'n, 256 Mich. 318, 239 N.W. 305 (1931), but was held not to cover the facts of that...