Punturo v. Kern

• Decision Date: 11 December 2020
• Docket Number: COA: 338728,SC: 158749,COA: 338727,COA: 338732,SC: 158755,SC: 158756
• Citation: Punturo v. Kern, 951 N.W.2d 342(Mem) (Mich. 2020)
• Parties: Bryan PUNTURO, Fawn Punturo, and B & A Holdings, LLC, d/b/a ParkShore Resort, LLC, Plaintiffs-Appellees, v. Brace KERN, Defendant-Appellant, and Saburi Boyer and Danielle Kort, f/k/a Danielle Boyer, Defendants. Bryan Punturo, Fawn Punturo, and B & A Holdings, LLC, d/b/a ParkShore Resort, LLC, Plaintiffs-Appellees, v. Brace Kern and Saburi Boyer, Defendants, and Danielle Kort, f/k/a Danielle Boyer, Defendant-Appellant. Bryan Punturo, Fawn Punturo, and B & A Holdings, LLC, d/b/a ParkShore Resort, LLC, Plaintiffs-Appellees, v. Brace Kern and Danielle Kort, f/k/a Danielle Boyer, Defendants, and Saburi Boyer, Defendant-Appellant.
• Court: Michigan Supreme Court

951 N.W.2d 342 (Mem)

Bryan PUNTURO, Fawn Punturo, and B & A Holdings, LLC, d/b/a ParkShore Resort, LLC, Plaintiffs-Appellees,

v.Brace KERN, Defendant-Appellant,andSaburi Boyer and Danielle Kort, f/k/a Danielle Boyer, Defendants.

Bryan Punturo, Fawn Punturo, and B & A Holdings, LLC, d/b/a ParkShore Resort, LLC, Plaintiffs-Appellees,

v.Brace Kern and Saburi Boyer, Defendants,andDanielle Kort, f/k/a Danielle Boyer, Defendant-Appellant.

Bryan Punturo, Fawn Punturo, and B & A Holdings, LLC, d/b/a ParkShore Resort, LLC, Plaintiffs-Appellees,

v.Brace Kern and Danielle Kort, f/k/a Danielle Boyer, Defendants,andSaburi Boyer, Defendant-Appellant.

SC: 158749

COA: 338727

SC: 158755

COA: 338728

SC: 158756

COA: 338732

Supreme Court of Michigan.

December 11, 2020

Order

On November 12, 2020, the Court heard oral argument on the applications for leave to appeal the October 16, 2018 judgment of the Court of Appeals. On order of the Court, the applications are again considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Clement, J. (concurring).

I concur with the Court's order denying leave to appeal. While the text of the fair-reporting-privilege statute at issue, currently codified at MCL 600.2911(3), is not all that clear, there is reason to believe that the statutory privilege only applies to media defendants, and is thus inapplicable to the instant defendants. When, as here, the Court of Appeals allows a suit to move forward, I am content to deny leave and not have this Court articulate any binding precedent. I write separately to discuss why I believe the statute can be read as inapplicable to defendants themselves , in lieu of the Court of Appeals’ conclusion that defendants’ remarks did not factually satisfy the statute's protection, and to ask the Legislature to clarify the intended scope and application of the statute.

The fair-reporting privilege we are concerned with generally protects certain libel defendants from liability so long as what they publish is "fair and true." It was originally enacted in 1931 PA 279, and at that time provided:

No damages shall be awarded in any libel action brought against a reporter, editor, publisher or proprietor of a newspaper for the publication therein of a fair and true report of any public and official proceeding, or for any heading of the report which is a fair and true headnote of the article published: Provided, however , That this privilege shall not apply to a libel contained in any matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of the public and official proceeding which was not a part thereof.

Under this version of the statute, it only applied to newspapers—specifically, "a reporter, editor, publisher or proprietor of a newspaper." They were protected for their reporting on "any public and official proceeding," so long as they provided "a fair and true report" of the proceeding. See McCracken v. Evening News Ass'n , 3 Mich. App. 32, 38, 141 N.W.2d 694 (1966) ("The statute protects newspaper publishers if the article is a fair and true report of the public and official proceeding.") This protection included a proviso, however, that it did not extend to "a libel contained in any matter added by any person concerned in the publication." Thus, media defendants who made "a fair and true report of ... public and official proceeding[s]" could not add libelous matter to the report—such as defamatory editorial remarks mixed in with the fair and true reporting of what happened—and be insulated from liability.

Were the 1931 language still in effect, we would not be hearing this case—there would be no dispute that it did not protect these defendants, who are not "reporter[s], editor[s], publisher[s] or proprietor[s] of a newspaper." But the statutory language was amended, by 1988 PA 396. It now provides:

Damages shall not be awarded in a libel action for the publication or broadcast of a fair and true report of matters of public record, a public and official proceeding, or of a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, or for a heading of the report which is a fair and true headnote of the report. This privilege shall not apply to a libel which is contained in a matter added by a person concerned in the publication or contained in the report of anything said or done at the time and place of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, which was not a part of the public and official proceeding or governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body. [ MCL 600.2911(3) ].

The immunity from damages is no longer specific to newspapers and their employees, but rather applies to any "publication or broadcast" of certain "fair and true report[s]." The amendment also broadened the subject matter of those "fair and true report[s]" beyond "any public and official proceeding," and now includes "matters of public record" or "a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body." The denial of protection to "a libel contained in any matter added by any person concerned in the publication" was recast as no longer in the form of a proviso, consistent with the modern preference against provisos. See 1A Singer & Singer, Sutherland Statutory Construction (7th ed.), § 21:11, p. 173 (characterizing provisos as "lazy drafting practice" that "make a statute hard to understand" and "may also produce unanticipated consequences").

Obviously, the deletion of the newspaper-specific language in 1988 PA 396 can be read as broadening the fair-reporting privilege of MCL 600.2911(3) to any "publication or broadcast" of an account of the proceedings listed. Defendants argue accordingly that their remarks to the media—made with the expectation that those remarks would be repeated—qualifies as a sort of publication or broadcast of those remarks. However, I believe there are clues in and around 1988 PA 396 suggesting that the fair-reporting privilege is only enjoyed by media defendants, and I am consequently content to deny leave in this case and let this suit move forward.

First, the apparent thrust of 1988 PA 396 was the expansion of the fair-reporting privilege's scope beyond an account of "any public and official proceeding" to include "matters of public record" or "a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body." This expansion was adopted in response to this Court's decision in Rouch v. Enquirer & News of Battle Creek , 427 Mich. 157, 398 N.W.2d 245 (1986). See Northland Wheels Roller Skating Ctr., Inc. v. Detroit Free Press, Inc. , 213 Mich. App. 317, 323 n. 4, 539 N.W.2d 774 (1995), quoting House Legislative Analysis, HB 4932 (June 15, 1988) (identifying Rouch as the Legislature's motivation for 1988 PA 396 and noting that the legislative analysis called our Rouch decision "unduly restrictive"). The Rouch plaintiff was arrested for the rape of his children's babysitter, although in the end, charges were not filed against him and in fact charges were ultimately filed against someone else. That said, the day after his arrest, the newspaper reported that he had been " ‘arrested and charged with the sexual assault of a 17-year-old women [sic] who was baby-sitting with his children ....’ " Rouch , 427 Mich. at 160, 398 N.W.2d 245. The reporter had received this information from the police department, which the reporter would habitually call in the morning to find out what had happened in the last 24 hours. Id. at 161, 398 N.W.2d 245. Rouch sued for libel. The newspaper cited the statute as a defense, saying that it had given "a fair and true report" of a "public and official proceeding"—Rouch's arrest and the police understanding of the situation. This Court rejected that argument, concluding "that an arrest that amounts to no more than an apprehension is not a ‘proceeding’ under the statute," meaning that "the information orally furnished to the defendant in support of it does not, as such, enjoy the privilege afforded by the ‘public and official proceedings’ statute." Rouch , 427 Mich. at 172-173, 398 N.W.2d 245. The Legislature then expanded the statute's scope beyond "proceedings" to, among other things, matters of public record—such as the fact of the arrest and the government's understanding of what motivated it. It strikes me as unlikely that the Legislature, in responding to Rouch , also intended to overhaul the immunity being conferred by expanding it beyond the journalism context.

Second, 1988 PA 396 applies only to a "publication or broadcast." On the one hand, this is certainly a change from 1931 PA 279, which applied only to newspapers. But it appears to me to be an effort at modernizing the fair-reporting privilege rather than changing its fundamental character. The reference to a "publication or broadcast" seems likely to me to be the Legislature's effort at accommodating the substantial changes in major forms of media between 1931 and 1988, in particular the dramatic expansion of radio and television journalism. I can say from firsthand experience in the legislative-drafting process that the Legislature, when it decides to make some substantive change to a law, will often also take up other forms of clean-up, to modernize the law—whether to render the language gender-neutral, move away from disfavored phrasings (such as the use of shall ), or update a law's text to conform to how it is actually applied. For this statute to apply to these defendants, it would be more natural...