Bufalino v. Detroit Magazine, Inc.

Decision Date28 December 1989
Docket Number82180,Docket Nos. 82179
Citation449 N.W.2d 410,433 Mich. 766
Parties, 17 Media L. Rep. 1449 William E. BUFALINO, Sr. and Marie Antoinette Bufalino, Plaintiffs-Appellants, v. DETROIT MAGAZINE, INC., Monthly Detroit, Kirk Cheyfitz, Paul J. Lison, Edward P. Whelan, Gary Dietrichs, Ludington News Co., Inc., also doing business as: Metro News Service, a division of Ludington News Co., Inc., Metropolitan Airport Newstands, a division of Ludington News Co., Inc., Park News Agency, a division of Ludington News Co., Ivan Ludington, Sr., and Ivan Ludington Jr., jointly and severally, Defendants-Appellees.
CourtMichigan Supreme Court

Butzel Long Gust Klein & Van Zile, P.C. by Richard E. Rassel, James E. Stewart, Leonard M. Niehoff, Detroit, for The Detroit News, Inc., amicus curiae.

Honigman Miller Schwartz & Cohn, P.C. by Herschel P. Fink, Detroit, for Detroit Free Press, Inc., amicus curiae.

William E. Bufalino, II, St. Clair Shores, pro se.

Bendure & Thomas, P.C. (Mark R. Bendure, of counsel), Detroit, for plaintiffs-appellants.

Harvey, Kruse, Westen & Milan, P.C. by Thomas F. Kauza, Marisa C. Petrella, Detroit, for Ludington News, defendants-appellees.

John J. Ronayne, III, Kim R. Kolb, Kasiborski, Ronayne & Flaska, A Professional Corp., Detroit, for defendants/appellees Detroit Magazine, Inc., Monthly Detroit, Kirk Cheyfitz, Paul J. Lison, and Edward P. Whelan.

BOYLE, Justice.

This libel action arose out of the publication of an article in the September, 1981, issue of Monthly Detroit magazine entitled "Jack Tocco: Mob Boss or Model Citizen?" The allegedly libelous statement that is the subject of this dispute is found in a portion of the article devoted to explaining how organized crime in Detroit has been strengthened and perpetuated by intermarriage among the city's crime "families." In support of this contention, the article's author, Edward P. Whelan, quotes a lengthy paragraph from a book written by Francis Ianni, a former Columbia University sociology professor, entitled, A Family Business--Kinship & Social Control in Organized Crime. The paragraph outlines, as an example of interfamily alliances, the relationship between the Tocco and Zerilli families, and contains the following statement:

"Antoinette (Meli) Tocco's cousin Marie is married to William Bufalino, reputedly a leading member of an upstate New York family."

Plaintiff contends that this statement is false and defamatory to the extent that it links him with an organized crime "family."

Plaintiff filed this action against these defendants and others in September, 1981. In July, 1984, all of the defendants 1 filed a motion for summary disposition, claiming a qualified privilege to make the statement under two distinct theories. Defendants first claimed a privilege under the First Amendment of the United States Constitution on the basis of plaintiff's "public figure" status. New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). They also claimed a qualified privilege under the common law of this state, since the statement commented upon a matter of "public interest." See, e.g., Kurz v. Evening News Ass'n, 144 Mich.App. 205, 375 N.W.2d 391 (1985); Peisner v. Detroit Free Press, 82 Mich.App. 153, 158, 266 N.W.2d 693 (1978).

Both kinds of privilege, defendants argued, required plaintiff to show "actual malice" on the part of defendants in publishing the statement. Since plaintiff's complaint failed to allege any facts which would support such a claim, defendants continued, they were entitled to summary disposition for plaintiff's failure to state a claim upon which relief could be granted. 2

Hearings on the motion were held on August 6, 1984, and August 21, 1984. At the conclusion of the second hearing, the trial court granted the motion with respect to a number of individual defendants, 3 but denied the motion as to the instant defendants. The court's stated reasons for the denial both at the hearing and in its eventual order are brief and of limited value. At the hearing, the court essentially stated only that it believed there to be a "genuine issue of material fact involved in this case." It did not identify that issue as whether actual malice existed, nor did it indicate that it was relying on that standard at all, either on the basis of the federal constitutional argument or the common-law qualified privilege claim. The court did state, however, that it would leave the question of plaintiff's public-figure status for purposes of the constitutional defense for "the jury to decide." 4

Defendants sought an immediate appeal in the Court of Appeals, raising essentially the same arguments as were raised before the trial court, and claiming additionally that the trial court had erred in leaving the question of plaintiff's public-figure status to the jury. The Court of Appeals granted leave to appeal and ultimately reversed the decision of the lower court. The Court concluded initially that plaintiff was a public figure as a matter of law, having conceded that very issue in his complaint; 5 thus, actual malice was the standard of defendants' liability. It then found that the trial court had erred in denying the motion for summary judgment, since plaintiff's general allegations of actual malice were completely unsupported by any facts from which malice could be inferred, and therefore they failed to raise a genuine issue of material fact for submission to a jury. The Court did not consider defendants' claim of qualified privilege under this state's common law. 6

This Court granted leave to appeal, limited to the threshold question whether plaintiff is a public figure for purposes of this action. 431 Mich. 870, 429 N.W.2d 176 (1988). 7 Upon review of the record and the Court of Appeals opinion, we now conclude that the Court of Appeals never properly examined the question of plaintiff's public-figure status, and that this case therefore should be remanded to that Court for plenary consideration of that issue.

I

The Court of Appeals found plaintiff to be a public figure because he had "concede[d] as much" in his amended complaint, which, again, alleges his "national reputation" as, among other things, a labor leader, a poet, a lawyer, and a lecturer. The Court stated:

"It is not necessary to trace the history of qualified privilege or to set out the standards defining those persons against whom the defense of qualified privilege might be asserted in a libel case. The applicable case law clearly expresses the controlling principles and sets forth the guidelines for making appropriate determinations. For the limited purposes of this matter, we conclude that the plaintiffs concede in their complaint that they are public figures, (supra, amended complaint, paragraphs 60-65) and, as such, that defendants are granted the right of qualified privilege in reporting and/or commenting upon plaintiffs." (Citations omitted.)

We disagree that plaintiff conceded his public-figure status in his complaint. The allegations contained in plaintiff's complaint clearly do not amount to a concession of his legal status as a public figure. Moreover, at the risk of reaching the same sort of unsupported conclusion at which the Court of Appeals arrives, it seems safe to conclude that the allegations do not alone suffice to establish that status under the rigorous standards announced in the "applicable case law."

The Court's error in concluding that plaintiff had conceded this issue is significant to our disposition of this case, since as a result, and despite its references to "applicable case law" and "controlling principles," etc., it failed to engage in any truly substantive legal analysis in support of its conclusion. It failed, for example, to indicate whether plaintiff should be considered a general-purpose or limited-purpose public figure. Even assuming that it intended plaintiff to be viewed as a limited-purpose public figure, the Court also failed to identify the particular "public controversy" with which plaintiff can properly be associated. In short, the Court of Appeals, because it thought plaintiff had simply conceded the question, failed to discuss in any meaningful way the merits of defendant's claim in terms of the "applicable case law" found in New York Times, Gertz, and their progeny.

It thus appears that this Court has open to it two alternatives. We can, as a practical matter, simply decide the merits of the issue on the basis of the record before us. While the question whether a person is a public figure for purposes of a defamation action is initially a question for the trial court, the determination is in effect one of law, and can be made by a reviewing court in the first instance on the record as submitted. 8 In this case, the issue was raised by the motion and argued by the parties. On appeal, the same issue was raised, and the trial court was assigned error for leaving the question to the jury. There are no "factual disputes" involved here. Plaintiff does not claim, for example, that he was never investigated by the United States Senate, or that he has not been mentioned in books dealing with organized crime and been the subject of numerous newspaper articles. 9 Nor does he, like Justice Levin, challenge the "authentic[ity]" of any of defendants' proofs. Thus, the determination of plaintiff's status is clearly one of law, to be made on the basis of the existing record, and as such may be made by a reviewing court. Bonnette v. West Ottawa Public Schools, 165 Mich.App. 460, 419 N.W.2d 593 (1987); Capac Bus Drivers Ass'n v. Capac Community Schools Bd. of Ed., 140 Mich.App. 542, 364 N.W.2d 739 (1985). 10

The fact that the question has been briefed and argued in this Court weighs in favor of a disposition on the merits. The other avenue open to this Court, however, is to remand the...

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  • Locricchio v. Evening News Ass'n
    • United States
    • Michigan Supreme Court
    • 17 Octubre 1991
    ...74 Cal L R 761, 765 (1986).21 Amicus curiae, Michigan Trial Lawyers Association, incorrectly suggest that Bufalino v. Detroit Magazine, Inc., 433 Mich. 766, 449 N.W.2d 410 (1989), mandates a remand in this case. The Bufalino majority acknowledged explicitly that "[w]e can, as a practical ma......
  • Nelson v. WEB Water Development Ass'n, Inc., 17966
    • United States
    • South Dakota Supreme Court
    • 27 Octubre 1993
    ...for the trial court. Rosenblatt v. Baer, 383 U.S. 75, 88, 86 S.Ct. 669, 677, 15 L.Ed.2d 597, 606 (1966); Bufalino v. Detroit Magazine, Inc., 433 Mich. 766, 449 N.W.2d 410, 413 (1989). Additionally, a court may find that a person loses the status of an ordinary citizen and becomes a limited ......
  • Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 2 Julio 2014
    ...plaintiffs: a “limited-purpose” public figure and a “general-purpose” public figure. See Bufalino v. Detroit Magazine, Inc., 433 Mich. 766, 449 N.W.2d 410, 416 (1989) (Levin, J., concurring). A limited-purpose public figure is a public figure with respect to “a limited range of issues,” and......
  • Briggs v. Univ. of Detroit-Mercy
    • United States
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    ...899 F.2d 1221, at *1, *3 (6th Cir. Apr. 10, 1990) (unpublished table opinion) (citations omitted); see also Bufalino v. Detroit Magazine, Inc., 449 N.W.2d 410, 413 (Mich. 1989) ("While the question whether a person is a public figure for purposes of a defamation action is initially a questi......
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