Tomkiewicz v. Detroit News, Inc., Docket No. 217995.

• Decision Date: 09 October 2001
• Docket Number: Docket No. 217995.
• Citation: 635 N.W.2d 36,246 Mich. App. 662
• Parties: Gary TOMKIEWICZ, Plaintiff-Appellant, v. The DETROIT NEWS, INC., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

635 N.W.2d 36

246 Mich. App. 662

Gary TOMKIEWICZ, Plaintiff-Appellant, v. The DETROIT NEWS, INC., Defendant-Appellee.

Docket No. 217995.

Court of Appeals of Michigan.

Submitted January 10, 2001, at Detroit.

Decided July 10, 2001, at 9:05 a.m.

Released for Publication October 9, 2001.

Frank G. Becker & Associates (by Frank G. Becker and Gregory D. Bill), Southfield, for the plaintiff.

Butzel Long (by James E. Stewart, Eugene H. Boyle, Jr., and Laurie J. Michelson), Detroit, for the defendant.

Before ZAHRA, P.J., and SMOLENSKI and GAGE, JJ.

GAGE, J.

Plaintiff appeals as of right from an order granting defendant summary disposition of his defamation and false light invasion of privacy claims. We affirm.

I

Plaintiff, a lieutenant with the city of Dearborn Heights Police Department, was the lead investigator into allegations of stalking against fellow city of Dearborn Heights Police Officer Kevin DeHart. In its newspaper dated January 8, 1998, defendant published an article headlined "Cop faces stalking charge." Another emboldened line of print that appeared before the article's text explained, "Next-door neighbor says officer and his wife harassed her after affair ended." The text of the article discussed DeHart's entry into a plea bargain involving his suspension from the police department and agreement to refrain from further stalking of the complainant.¹ Unfortunately, a photograph of plaintiff, captioned "Officer Kevin DeHart was suspended without pay after he was charged with stalking a neighbor," was printed alongside the article. A photographer employed by defendant had taken plaintiff's photograph while he attended a district court hearing concerning the criminal charges against DeHart. On January 9, 1998, defendant printed a brief correction clarifying that plaintiff was not DeHart.

Plaintiff filed the instant complaint asserting claims of defamation and false light invasion of privacy. Defendant responded by moving for summary disposition pursuant to MCR 2.116(C)(10), alleging that (1) its publication of plaintiff's photograph was "an honest mistake," (2) plaintiff qualified as a public official because of his high rank in the police department, and (3) plaintiff could not establish defendant's actual malice. The trial court found that plaintiff qualified as a public official because when his photograph was taken he appeared in court in his official capacity as the officer investigating the stalking charges. The trial court also determined that the evidence regarding the placement of plaintiff's photograph with the stalking article did not support a finding of defendant's actual malice, and granted defendant's motion for summary disposition.

II

This Court reviews de novo a trial court's summary disposition ruling. Collins v. Detroit Free Press, Inc., 245 Mich. App. 27, 31, 627 N.W.2d 5 (2001). A motion under MCR 2.116(C)(10) tests a claim's factual support. In reviewing a motion brought pursuant to subsection C(10), we must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party to determine whether a genuine issue of fact exists to warrant trial or the moving party is entitled to judgment as a matter of law. Kefgen v. Davidson, 241 Mich. App. 611, 616, 617 N.W.2d 351 (2000).

When addressing allegations of defamation against media defendants, courts must remain cognizant of the important, competing interests involved in resolving these claims:

Two competing legal regimes collide in libel cases implicating First Amendment concerns. Libel law enforces society's "pervasive and strong interest in preventing and redressing attacks upon reputation" caused by false and defamatory statements, while constitutional law safeguards the free flow of ideas and opinions on matters of public interest that lie at "the heart of the First Amendment's protection." The inherent analytical tension between these regimes requires a court both to protect reputational interests, and to accord "breathing space" to principles of freedom of press and speech. [Locricchio v. Evening News Ass'n, 438 Mich. 84, 88, 476 N.W.2d 112 (1991), quoting Rosenblatt v. Baer, 383 U.S. 75, 86, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), and First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).]

The involvement of First Amendment freedoms mandates a closer degree of scrutiny by this Court in reviewing defamation claims.

"When addressing defamation claims implicating First Amendment freedoms, appellate courts must make an independent examination of the record to ensure against forbidden intrusions into the field of free expression and to examine the statements and circumstances under which they were made to determine whether the statements are subject to First Amendment protection.

Thus, we recognize that we must consider society's interest in free expression, in addition to the interests of the individual parties. We also recognize that summary disposition is an essential tool in the protection of First Amendment rights. [Ireland v. Edwards, 230 Mich.App. 607, 613, 584 N.W.2d 632 (1998), quoting Northland Wheels Roller Skating Center, Inc. v. Detroit Free Press, 213 Mich.App. 317, 322, 539 N.W.2d 774 (1995).]

III

To establish a claim of defamation by libel a plaintiff must show (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by publication. Rouch v. Enquirer & News of Battle Creek (After Remand), 440 Mich. 238, 251, 487 N.W.2d 205 (1992). In this case the first element undisputedly was established: defendant's publication of the mislabeled photograph identifying plaintiff as the police officer who stalked his former mistress certainly tends to harm plaintiff's reputation "so as to lower him in the estimation of the community or deter others from associating or dealing with him." American Transmission, Inc. v. Channel 7 of Detroit, Inc., 239 Mich.App. 695, 702, 609 N.W.2d 607 (2000).²

A

The first disputed issue that we must resolve is whether a privilege protected defendant's defamatory article concerning plaintiff. It is well established that the United States Constitution affords a qualified privilege protecting the making of defamatory statements concerning public officials³ when the statements relate to the official's conduct in office.⁴

The constitutional guarantees [within the First and Fourteenth Amendments] require ... a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. [New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).]

See also M.C.L. § 600.2911(6),⁵ Peterfish v. Frantz, 168 Mich.App. 43, 49-50, 424 N.W.2d 25 (1988), quoting New York Times, supra. The Supreme Court in New York Times did not conclusively define the parameters of the category of public officials, noting that "[w]e have no occasion here to determine how far down into the lower ranks of government employees the `public official' designation would extend for purposes of this rule, or otherwise to specify categories of persons who would or would not be included." Id. at 283, n. 23, 84 S.Ct. 710.

Whether plaintiff, a police lieutenant, qualifies as a public official guides the outcome of this case. No Michigan cases specifically address a police lieutenant's qualification as a public official in the context of defamation law and the New York Times qualified privilege. In Peterfish, supra at 50-51, 424 N.W.2d 25, this Court received some guidance from the United States Supreme Court with respect to who constitutes a public official:

In Rosenblatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966), the United States Supreme Court, in defining for the first time the term "public official," stated:

"It is clear, therefore, that the `public official' designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. [383 U.S. at 85, 86 S.Ct. 669.]"

By way of elaboration on the Court's definition, it continued:

"Where a position in government has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees, both elements we identified in New York Times are present and the New York Times malice standards apply. [383 U.S. at 86, 86 S.Ct. 669.]"

Finally, the Court pointed out, by way of footnote:

"The employee's position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart from the scrutiny and discussion occasioned by the particular charges in controversy. [383 U.S. at 8[6], n. 13, 86 S.Ct. 669.]"

The determination whether a privilege exists constitutes a legal question for the court.⁶ Peterfish, supra at 49, 424 N.W.2d 25.

While no Michigan case addresses whether a police officer or police lieutenant qualifies as a public official in the context of a defamation action, several cases have concluded that other law enforcement personnel constituted public officials. In a case predating New York Times, supra, the Michigan Supreme Court held that a media defendant was entitled to a qualified privilege for "abusive and extreme, vitriolic" criticism the defendant leveled at the plaintiff, a Detroit deputy superintendent of...