Peisner v. Detroit Free Press, Inc.

• Decision Date: 21 March 1978
• Docket Number: Docket No. 77-2779
• Citation: Peisner v. Detroit Free Press, Inc., 82 Mich.App. 153, 266 N.W.2d 693 (Mich. App. 1978)
• Parties: , 4 Media L. Rep. 1062 Balfour PEISNER and Nora S. Peisner, his wife, Plaintiffs-Appellants, v. DETROIT FREE PRESS, INC., a corporation and Louis Heldman, jointly andseverally, Defendants-Appellees.
• Court: Court of Appeal of Michigan

Page 693

266 N.W.2d 693

82 Mich.App. 153, 4 Media L. Rep. 1062

Balfour PEISNER and Nora S. Peisner, his wife, Plaintiffs-Appellants, v. DETROIT FREE PRESS, INC., a corporation and Louis Heldman jointly andseverally, Defendants-Appellees.

Docket No. 77-2779 Court of Appeals of Michigan.

March 21, 1978.

Released for Publication June 14, 1978.

LeRoy W. Daggs, Detroit, Balfour Peisner, in pro per, for plaintiffs-appellants.

Kenneth Murray, Detroit, for defendants-appellees.

Before KAUFMAN, P. J., and BRONSON and D. E. HOLBROOK, JJ.

PER CURIAM.

Plaintiff Balfour Peisner, a Detroit attorney, and his wife, Nora S. Peisner, filed suit against defendants Detroit Free Press and Louis Heldman, its reporter, on December 10, 1973, in connection with the newspaper's publication of an article and an editorial concerning plaintiff Balfour Peisner's representation of an indigent criminal defendant.

The article, which appeared in the November 20, 1973, edition of the Free Press, stated that Detroit Recorder's Court Judge Patrick O'Brien had appointed Peisner, his long-time friend and former campaign manager, to handle the appeal of an indigent defendant's conviction for manslaughter after a trial at which he had presided. Peisner's appeal in that case, according to the article, was his first criminal appeal and failed to raise the issue of the trial judge's prejudicial misconduct. The article stated that the judge had called the defendant's trial attorney a liar and questioned his competence and ethics in the presence of the jury. The article also reported that the defendant had struggled in vain to have Peisner removed as his appointed counsel on appeal and that Peisner had said that he failed to raise the issue of the judge's conduct on appeal because he did not wish to "sling mud".

On November 23, 1973, plaintiff Balfour Peisner wrote a letter to the editor of defendant Detroit Free Press demanding that the paper print a retraction of the article.

On December 1, 1973, defendant newspaper printed an editorial deploring the "buddy system" of justice whereby judges appoint their friends to handle the cases of indigent defendants. Detroit Recorder's Court Judge Patrick O'Brien, said the editorial, had appointed Balfour Peisner, his former campaign manager, to handle the appeal of a defendant convicted before him at a trial which involved the possible misconduct of the judge. In handling the appeal, said the Free Press, Peisner failed to mention the fact that the judge had called the defendant's previous attorney a liar.

Plaintiff's complaint alleged, inter alia, that the defense attorney had not been called a liar or his competence and ethics questioned in the jury's presence and that the article was therefore untrue. It asserted that Balfour Peisner and Louis Heldman had a conversation regarding the controversy before publication of the article at which time Louis Heldman admitted that the only misconduct at the trial was that of the defense attorney and Balfour Peisner explained that misconduct by defense counsel was not grounds for appeal.

Defendants' answer stated that Recorder's Court Judge Patrick O'Brien's remarks may or may not have been made in the jury's presence but that during the trial the judge did attack defense counsel's competence and ethics and that, therefore, the article's accusation that Peisner had failed to raise the issue of judicial misconduct on appeal was true. The answer denied that defendant Heldman ever admitted that the misconduct at trial was wholly that of defense counsel and alleged that plaintiff Peisner had attempted to elicit such a response from Heldman and had explained his failure to raise the issue on appeal with the statement, "I didn't want to sling mud". The answer also denied that the article and editorial were published maliciously and alleged that both were true.

The answer raised affirmative defenses of constitutional privilege and qualified privilege on the grounds that the controversy was a matter of widespread public interest and also averred that plaintiffs had failed to allege facts from which malice could be inferred.

On June 14, 1977, after three and one-half years of discovery and disputes, defendants filed a motion for summary judgment on the grounds that the complaint failed to state a cause of action and there existed no genuine issue of any material fact. Specifically, the motion asserted that the matters reported in the article and editorial were true and that, in any event, their publication was privileged, plaintiffs having failed to allege sufficient facts to create a question of malice.

By his affidavit, submitted in support of the motion, Louis Heldman swore that he was told by counsel for the defendant, whose conviction plaintiff Peisner was appointed to appeal, that Recorder's Court Judge Patrick O'Brien had called him a liar in the presence and the absence of the jury and that the judge admitted calling defense counsel a liar several times on the record at the trial. Heldman further swore that he knew of no untruth or inaccuracy in the story which he prepared and that he bore plaintiff Peisner no ill will or malice.

In another affidavit, the managing editor of the Free Press swore that the article and editorial were printed as a matter of public interest in the administration of justice, were based on the knowledge and information available to the defendants at the time of publication, were believed to be true and were not motivated by any animosity toward plaintiff.

Plaintiffs' answer to defendants' motion for summary judgment asserted that the allegations contained in plaintiffs' complaint that Louis Heldman had admitted to Peisner that defense counsel and not the judge had been at fault and that Peisner's letter of November 23, 1973, placed defendants on notice that the article was untrue were sufficient to create a substantial question of fact concerning the existence of malice.

In an affidavit supporting plaintiffs' answer, Balfour Peisner swore that nowhere in the transcript was defense counsel called a liar in the jury's presence and that Louis Heldman admitted that defense counsel and not the trial judge had been guilty of misconduct. Peisner further stated that defendants took no precautions to verify the article before publication.

The trial judge granted defendants' motion for summary judgment on June 30, 1977, holding that the publications in the instant case were qualifiedly privileged since the prior lawsuit was a matter of "public interest", that plaintiff Balfour Peisner was a "public figure" at the center of a public controversy and that plaintiffs had made no showing of affirmative facts which would indicate that defendants acted with actual malice.

I.

Defendants contend that plaintiff is a "public figure" within the meaning of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the U. S. Supreme Court held that liability for defamation may not be imposed upon a newspaper or broadcaster without "actual malice" if the plaintiff is a public official or public figure. The stated reason for this distinction was that:

"Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater." 418 U.S. at 344, 94 S.Ct. at 3009 (footnote omitted).

In this context, the Court described "public figures":

"For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." 418 U.S. at 345, 94 S.Ct. at 3009.

Specifically, the Court addressed whether Gertz could be classified as a public figure:

"Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation.

"In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize...