Faxon v. REPUBLICAN STATE CENTRAL COMMITTEE

• Decision Date: 05 April 2001
• Docket Number: Docket No. 209786.
• Citation: 624 N.W.2d 509,244 Mich. App. 468
• Parties: Jack FAXON, Plaintiff-Appellee, v. MICHIGAN REPUBLICAN STATE CENTRAL COMMITTEE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

624 N.W.2d 509

244 Mich. App. 468

Jack FAXON, Plaintiff-Appellee, v. MICHIGAN REPUBLICAN STATE CENTRAL COMMITTEE, Defendant-Appellant.

Docket No. 209786.

Court of Appeals of Michigan.

Submitted September 13, 2000, at Detroit.

Decided January 30, 2001, at 9:10 a.m.

Released for Publication April 5, 2001.

Neal Bush and Klimaszewski & Street, Detroit (by Barbara A. Klimaszewski, Saginaw), for the plaintiff.

Foster, Swift, Collins & Smith, P.C. (by Eric E. Doster and James M. Alexander), Lansing, and Bopp, Coleson & Bostrom (by James Bopp, Jr. and Barry A. Bostrom), Terre Haute, IN, for the defendant.

Before WHITBECK, P.J., and FITZGERALD and MARKEY, JJ.

PER CURIAM.

In this defamation action, defendant, Michigan Republican State Central Committee, appeals by leave granted the circuit court's orders affirming the district court judgment in favor of plaintiff, Jack Faxon, and denying the committee's motion for reconsideration. We reverse the circuit court order affirming the district court judgment and vacate the judgment entered on the jury verdict in favor of Faxon.

I. Basic Facts And Procedural History

Faxon is a former state legislator who served in the Michigan House of Representatives and Michigan Senate from 1964 through 1994. The statements giving rise to this defamation action were published in a brochure, prepared for the committee by a political consulting firm, that was distributed to about 30,000 registered voters shortly before the November 1990 election in which Faxon was running for reelection to the Senate. The brochure was allegedly intended to inform voters of Faxon's alleged misuse of legislative immunity¹ in two instances: to avoid a civil lawsuit and to avoid a speeding ticket.² However, referring to the civil suit,³ the committee's brochure also asserted that a "disappointed art collector" paid Faxon "over $13,000 for what he thought was a Ming vase." In reference to this piece of art, this brochure exclaimed in a headline, "Ming, schming!" The brochure then stated that Faxon "fancies himself as an art expert," that he had told the art collector that the vase was from the Ming Dynasty, that the vase actually "was a fake," and that Faxon had again taken the stance that the art collector could not sue him because he was a state legislator. Despite the brochure, Faxon was reelected.

Faxon then sued the committee for defamation in the circuit court, alleging that he had sold a bowl, not a vase, for $4,500, not $13,000. When the price of that bowl was added to five other items that he had sold, the total was $13,200. He eventually allowed the buyer to return the bowl and two other items, refunding $12,500. The circuit court remanded this case to the district court after mediation resulted in a recommended award within the district court's jurisdiction. The jury in the district court returned a verdict in favor of Faxon for $75,000 in compensatory damages and $75,000 in punitive damages. The committee appealed to the circuit court, which affirmed the jury's verdict.

After the circuit court denied reconsideration of its decision, this Court granted the committee leave to appeal. At issue in this appeal is whether the district court erred in denying the committee's motion for judgment notwithstanding the verdict⁴ because Faxon failed to prove that the committee acted with "actual malice," as that term of art is used in free speech cases, when it published the brochure.

II. Standard Of Review

Faxon attempts to reduce the standard of review we apply to this issue to determining whether the circuit court abused its discretion in affirming the judgment and award that resulted from the district court action. The committee, however, asserts that this Court must apply what is, in effect, review de novo of the judgment in the district court because there was insufficient evidence to support Faxon's defamation claim. We agree with the committee on this point. "When addressing defamation claims, appellate courts must make an independent examination of the record to ensure against forbidden intrusions into the field of free expression." Kevorkian v. American Medical Ass'n, 237 Mich.App. 1, 5, 602 N.W.2d 233 (1999); see also Rouch v. Enquirer & News of Battle Creek (After Remand), 440 Mich. 238, 249, 258, 487 N.W.2d 205 (1992) (applying independent review). This review de novo is especially pertinent in this case because, in a defamation action, whether the evidence is sufficient to support a finding of actual malice is a question of law, and we review questions of law de novo. See Burba v. Burba (After Remand), 461 Mich. 637, 647, 610 N.W.2d 873 (2000); Garvelink v. Detroit News, 206 Mich.App. 604, 608, 522 N.W.2d 883 (1994).

III. Proof Of Actual Malice

As the committee points out, Faxon, as a state senator seeking reelection, was a public official or public figure at the time it published the brochure. See, generally, Herbert v. Lando, 441 U.S. 153, 156, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979). In practical terms, this meant that Faxon had to satisfy a special standard to succeed with his defamation⁵ claim. See Milkovich v. Lorain Journal Co., 497 U.S. 1,14-15, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). This special standard entails proving with clear and convincing evidence that the publication was false and a product of actual malice, meaning that the injurious falsehood was made knowing that it was false or with reckless disregard for whether it was true. See Garvelink, supra at 608, 522 N.W.2d 883; Kevorkian, supra at 9, 602 N.W.2d 233; see also M.C.L. § 600.2911(6); MSA 27A.2911(6). Actual malice in this specific legal context has a particularly narrow meaning. See Harte-Hanks, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).

"[I]ll will, spite or even hatred, standing alone, do not amount to actual malice. `Reckless disregard' is not measured by whether a reasonably prudent man would have published or would have investigated before publishing, but by whether the publisher in fact entertained serious doubts concerning the truth of the statements published." [Ireland v. Edwards, 230 Mich.App. 607, 622, 584 N.W.2d 632 (1998), quoting Grebner v. Runyon, 132 Mich.App. 327, 333, 347 N.W.2d 741 (1984).]

This high standard of proof is intended to avoid violating the free expression protections the First Amendment affords. See Garvelink, supra at 609, 522 N.W.2d 883.

Despite Faxon's claims to the contrary, the evidence of actual malice admitted at trial fell below this clear and convincing level. The record in this case is simply devoid of evidence that the committee had knowledge that any of the statements contained in the brochure were false at the time of publication. See Herbert, supra at 160, 99 S.Ct. 1635; Kevorkian, supra at 9, 602 N.W.2d 233. David Doyle, the committee's executive director at the time it published the brochure, denied knowing any information in the brochure was false. Having relied on a variety of news articles reporting the matter, Doyle said that he had no reason to doubt the truth of the allegations. Similarly, Fred Wszolek, who worked at the consulting firm that published the brochure, conceded that information in the brochure was false,⁶ but stated that he did not know it was false at the time of publication.

Nor was there any clear and convincing evidence that the committee published the brochure with reckless disregard of whether the statements were false. Harte-Hanks, supra at 659, 109 S.Ct. 2678, quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In other words, the evidence presented did not establish that the committee published the brochure with a "`high degree of awareness of ... probable falsity'" or that the committee "`entertained serious doubts as to the truth of [the] publication.'" Harte-Hanks, supra at 667, 109 S.Ct. 2678, quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), and St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Rather, both Doyle and Wszolek explained that they had relied on a series of other published news articles that related the information included in the brochure. Their failure to investigate the allegations in those articles before including them in the brochure does not constitute the reckless disregard that underlies actual malice. Harte-Hanks, supra at 692, 109 S.Ct. 2678; Grebner, supra at 333, 347 N.W.2d 741. Although we recognize that "purposeful avoidance of the truth" can constitute actual malice, Harte-Hanks, supra at 692, 109 S.Ct. 2678, there was no clear and convincing evidence in this case that the committee was attempting to avoid the truth when it decided not to investigate this issue. Instead, the evidence tended to substantiate the committee's claim that it was actually relying on those articles as the foundation for the brochure and had no reason, at the time, to doubt their veracity.

Faxon, however, claims that the New York Times actual malice standard should not apply in this case at all because the committee is not a member of the media. The United States Supreme Court has not yet settled this question. See Harris v. Quadracci, 48 F.3d 247, 253 (C.A.7, 1995). Nevertheless, in making this argument, Faxon ignores the fact that, at least in Michigan, whether the actual malice standard is pertinent in a given case depends on whether a plaintiff is a public official or public figure. The question whether the defendant is part of the media is irrelevant to this determination. As M.C.L. § 600.2911(6); MSA 27A.2911(6) states:

An action for libel or slander shall not be brought based upon a communication involving public officials or public figures unless the claim is sustained by clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether or not it was false. [Emphasis added.]

Subsection 6 does...