Rouch v. Enquirer & News of Battle Creek Michigan

• Decision Date: 01 December 1991
• Docket Number: No. 2,Docket No. 89799,2
• Citation: 440 Mich. 238,487 N.W.2d 205
• Parties: , 20 Media L. Rep. 2265 David J. ROUCH, Plaintiff-Appellee, v. ENQUIRER & NEWS OF BATTLE CREEK MICHIGAN, A Delaware Corporation, Defendant-Appellant. (After Remand) Calendar,
• Court: Michigan Supreme Court

Page 205

487 N.W.2d 205

440 Mich. 238, 20 Media L. Rep. 2265

David J. ROUCH, Plaintiff-Appellee, v. ENQUIRER & NEWS OF BATTLE CREEK MICHIGAN, A Delaware Corporation, Defendant-Appellant. (After Remand)

Docket No. 89799.

Calendar No. 2, Dec. Term, 1991.

Supreme Court of Michigan.

Argued Dec. 3, 1991.

Decided July 15, 1992.

[440 Mich. 241] John M. Jereck, Battle Creek, Mich., for plaintiff-appellee.

Sullivan, Hamilton, Schulz, Kreter & Toth, James M. Sullivan, Battle Creek, Mich., Nixon, Hargrave, Devans & Doyle, Robert C. Bernius, Elizabeth M. Ahern, Washington, D.C., for defendant-appellant.

Nixon, Hargrave, Devans & Doyle by Robert C. Bernius, Sharon Ochs Boston, Washington, D.C., Sullivan, Hamilton, Schulz Allen & Lettering by James M. Sullivan, Battle Creek, Mich., for defendant-appellant.

Marco, Litzenburger, Smith, Brown & Erhart, P.C. by Seberon Litzenburger, Petoskey, Mich., for amici curiae, Northern Michigan Review, Inc., Otsego County Herald Times, Inc., Maurer Pub. Co., Cadillac Evening News and Silbar Communications.

Dawn L. Phillips, Karen Russell, Birmingham, Mich., for amicus curiae The Michigan Press Ass'n.

[440 Mich. 242] Kasiborski, Ronayne & Flaska, P.C. by John J. Ronayne, III, Detroit, Mich., for amici curiae Post-Newsweek Stations, Michigan, Inc. and Adams Pub. Corp.

AFTER REMAND

BOYLE, Justice.

A responsible press has always been regarded as the handmaiden of effective judicial administration.... Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. [Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966).]

In this case we are called upon to examine the balance between protecting an individual's reputation from false and defamatory statements and fostering energetic, tumultuous public debate to ensure continued scrutiny of police, prosecutors, and the courts through cherished constitutional rights guaranteeing freedom of speech and the press. ¹ Newspapers have a longstanding tradition of reporting on criminal justice and police conduct. "With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice." Cox Broadcasting Corp v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975). Protecting that tradition without trampling the rights of individual citizens is the task facing this Court.

The plaintiff, David Rouch, was arrested, booked on a charge of first-degree criminal sexual conduct by the police upon authorization from an attorney in the prosecutor's office, and released after an informal bond hearing by a magistrate acting in her formal capacity pursuant to MCR 6.104. The defendant newspaper, the Enquirer & News of Battle Creek, published an account of Rouch's arrest, the charge against him, and his release on bond. Later, when Rouch appeared for his formal arraignment, he was told that the charges had been dropped. Rouch predicates his suit upon inaccuracies in the newspaper report.

Perhaps it is not surprising that with such important rights at stake, this controversy has required so much appellate court time. ² When this Court first considered the case, it reviewed an abbreviated record prepared prior to a summary disposition motion 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." 427 Mich. 157, 160, 398 N.W.2d 245 (1986). With further factual development, the matter returns to this Court for additional review. We now consider whether the defendant published a materially false article. We need not reach the issue whether it was negligently published, ³ and whether the more complete factual record brings the case within Michigan's statutory privilege. ⁴

We hold that the article was not materially false, ⁵ and we therefore reverse the decision of the Court of Appeals and remand for entry of judgment notwithstanding the verdict in favor of the defendant.

I

A. The Procedural History

On December 5, 1980, David Rouch commenced this libel action against the Enquirer & News of Battle Creek by filing a complaint in the Calhoun Circuit Court. Rouch claimed that the newspaper had falsely published an article describing his arrest as a suspect for the rape of a seventeen-year-old girl who was baby-sitting for his former wife. After initial discovery, the newspaper filed a motion for summary disposition, seeking an order of no cause of action because the newspaper was entitled to qualified privilege under the terms of M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3). In support of its motion, the newspaper relied on the depositions of the plaintiff, affidavits of the news reporter who authored the article, and a police sergeant who provided a copy of the incident report with respect to Rouch's arrest. Relying on Schultz v. Newsweek, Inc., 668 F.2d 911 (CA 6, 1982), the trial court ruled that the newspaper was entitled to a qualified privilege for matters of general public interest. As a result, the trial court concluded that the plaintiff was required to prove actual malice in order to sustain his claim. The trial court granted summary judgment in favor of the defendant on the basis that the plaintiff was unable to establish a genuine issue of material fact regarding the defendant newspaper's malice.

The Court of Appeals reversed the ruling of the trial court, stating that the statutory privilege was unavailable on the basis that no warrant was issued in the case, that the common-law privilege to report matters in the public interest was unavailable because the details of the alleged crime fell outside the scope of matters promoting the public interest, and that the trial court erred in requiring a showing of malice. ⁶ We granted the defendant leave to appeal. ⁷

In Rouch v. Enquirer & News of Battle Creek, 427 Mich. 157, 398 N.W.2d 245 (1986) (hereafter Rouch I ), we considered the scope of Michigan's statutory privilege, the continued existence of Michigan's qualified privilege in light of the constitutional dimensions of the law of defamation as developed by the United States Supreme Court in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, and the burden of proving falsity. Writing for the majority, Justice Brickley considered the questions of privilege and discussed the applicability of the "official proceedings privilege" statute, M.C.L. Sec. 600.2911(3); M.S.A. Sec. 27A.2911(3). Justice Brickley concluded that an arrest, absent judicial action, falls outside the scope of "public and official proceedings" as covered in Michigan's statute. ⁸ In rejecting an interpretation of Michigan's statutory privilege that would reach arrests or police reports absent judicial action, Justice Brickley reasoned that the language "evoke[d] notions of adjudicatory action, rather than of government action generally." 427 Mich. at 172, 398 N.W.2d 245. Justice Brickley further explored the effect of constitutional mandates on the availability of Michigan's public-interest privilege. Concluding that the public-interest privilege had been largely subsumed by the more expansive constitutional protections afforded by the New York Times standard, we adopted the Gertz ⁹ negligence standard in place of the former public-interest privilege, 427 Mich. at 202, 398 N.W.2d 245, and remanded the case to the trial court for further proceedings, with the instruction that the plaintiff bore the burden of proving falsity.

On February 9, 1988, an eight-day trial commenced in circuit court. Witnesses included the news reporter responsible for the story, police officers, the plaintiff, the magistrate responsible for holding the informal bond hearing, and several expert witnesses. Significantly, John Bell, a Battle Creek police officer, testified that the prosecutor, Mr. Pattison, authorized Mr. Rouch to be arrested on the charge of first-degree criminal sexual conduct. The defendant introduced a copy of the police report that detailed the booking of Rouch for criminal sexual conduct on the basis of the authorization of Prosecutor Pattison. Officer Bell also explained that an arraignment for bond purposes was held before the magistrate. ¹⁰ Adding to the factual record in Rouch I, which focused on the facts regarding the arrest and police reports, the trial record included testimony from the magistrate who was responsible for setting bond. The magistrate testified that one of her official duties was to set bond for persons being held in custody. Although the magistrate did not specifically recall the details of this hearing, the defendant introduced a bail bond form signed by the defendant which evidenced a $10,000 personal recognizance bond with appearance for arraignment required on December 28, 1979. The form detailed the offense as criminal sexual conduct in the first degree. The magistrate agreed that the form indicated that she had set bond and described the manner in which such bonds were set. She explained that to set bond, she would consider the length of the defendant's residence in the community, his employment status, his reputation and character, his prior criminal record, his record of appearance or nonappearance on other occasions, the nature of the offense, and the probability of conviction. ¹¹

The defendant renewed its motion for directed verdict incorporating all its prior arguments, and again raised the contention that the case fell within Michigan's statutory privilege, relying particularly on the magistrate's...