STATE
OF MICHIGAN
IN
THE OAKLAND COUNTY CIRCUIT COURT
Libby Pantella BRIEF IN SUPPORT OF
DEFENDANT’S
Plaintiff MOTION FOR PARTIAL
v SUMMARY
DISPOSITION
Mark Ford
File
No: 13- -NZ
Defendant
Hon:_______________
_____________________________________________________________________________/
The Law Offices of Christian Taylor, PC. The Bannister Law Firm, PLLC
Christian Taylor, (P54321) Joshua Bannister (P12345)[1]
Attorney
for Plaintiff Attorney
for Defendant
2630 Featherstone Dr 2630
Featherstone Dr
_____________________________________________________________________________/
DEFENDANT’S
BRIEF IN SUPPORT OF HIS MOTION FOR SUMMARY DISPOSITION
NOW
COMES Defendant, by and through his attorney, Joshua Bannister, and for his
Brief in Support of his Motion for Summary Disposition, states as follows:
STATEMENT
OF FACTS
Plaintiff, Elizabeth Pantella, is an Oak Township Michigan
The Township Daily reported Plaintiff had been drinking
and taking prescription medication before the accident. The Township Daily, p 3A. The Oak Township Board of Trustees later
approved three recall petitions submitted by Defendant, Mark Ford. Recall Petitions 1, 2, 3, attached as Exhibits D, E, F; Complaint, ¶ 17. The petitions allege
Plaintiff has alcohol issues, was and is a danger to township trustees and
property because of her drunk driving, and votes pro-police because of the
accident cover up. Recall Petition 1, 2, 3;
Complaint, ¶¶ 16-18. Plaintiff
alleges the statements in the recall petitions were published to Mr. John
Semple. Complaint, ¶ 16.
Plaintiff
alleges these statements were made with malice and sued Defendant for
defamation. Defendant filed this Motion for Summary Disposition because
Plaintiff failed both to plead her claim with specificity, and in the
alternative that there is no genuine issue of material fact.
LEGAL
ARGUMENT
I.
Defendant is
entitled to relief as a matter of law because Plaintiff’s Complaint failed to
plead her claim with sufficient specificity under MCR 2.116(C)(8).
A
Motion for Summary Disposition under MCR 2.116(C)(8) tests the legal
sufficiency of the complaint. ABB Paint Finishing Co v
National Union Fire Ins Co, 223 Mich . The
Court will look at the pleadings to determine whether they allege a prima facie
case. Garvelink v The Detroit
News, 206 Mich . The Court will grant the motion when the claim is
so clearly unenforceable as a matter of law that no factual development could
possibly justify recovery. Simko v Blake, 448 Mich . The court will look only at the pleadings and accept as true all
factual allegations. Id.
There
are “four components for a cause of action for libel: 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
Michigan, 440 Mich .
A
public official plaintiff is required to prove actual malice. MCL
600.2911 . Actual malice means either the defendant knew the
alleged defamatory statement was false or acted with reckless disregard whether
it was true or false. Id. Tomkiewicz v Detroit News, Inc., 246 Mich .
A.
Plaintiff’s
defamation claim should be dismissed as a matter of law because she relies on
the wrong legal standard for malice.
Plaintiff,
a public official, uses the wrong definition for actual malice in her Complaint.
Further, even if her standard was correct, she failed to plead any specific
facts to support her allegations that Defendant acted with actual malice.
The
courts consider a township trustee a “public official.” Macomb County Prosecuting Attorney v
Murphy, 464 Mich 149, 162, 627 NW2d 247 (2001) (see also, Smith v Morris, 2001 WL 1511838, and Smith v Winn, 2001 WL 1511841, both
holding that a township trustee is a public official for the purposes of a
defamation claim). Thus, as a township trustee, Plaintiff must plead specific
facts showing Defendant acted with actual malice.
Plaintiff’s
Complaint alleges “Ford has demonstrated malice toward Pantella because she has
denied funding for his charity in previous years in her position as Trustee.” Complaint, ¶ 24. Malice in defamation
actions should not be confused with its street definition. “[I]ll will, spite
or even hatred, standing alone, do not amount to actual malice.” Grebner v Runyon, 132 Mich . The fact Plaintiff denied
funding to Defendant is entirely irrelevant to whether Defendant either knew
the statements in the recall petitions were false or acted with reckless
disregard as to whether or not they were true. Since Plaintiff cannot prove
Defendant acted with actual malice, he is entitled to dismissal of Count I of
her Complaint as a matter of law.
B. Even if Plaintiff’s defamation claim relies on the
correct standard, it should still be dismissed as a matter of law because she
failed to support her claim with anything more than her mere conclusory
allegations that Defendant acted with malice.
Plaintiff’s
allegations are conclusory and not supported by facts. She assumes it is public
knowledge she was not drunk the night of the accident, but does not support it
with any proofs beyond her mere assertion. Complaint,
¶ 15. She alleges Defendant demonstrated “malice,” but does not allege any
facts to support that the statements were either false or made with reckless
disregard as to their truth. Complaint,
¶ 24.
In
Michigan Royal Palace Homes, Inc v Channel 7 of Detroit, Inc, 197 Mich . Since Plaintiff has not alleged anything in her
Complaint beyond her mere assertions that Defendant acted with malice, the
Court should dismiss her defamation claim under MCR 2.116(C)(8).
II.
In the alternative,
Defendant is entitled to dismissal of Plaintiff’s defamation claim under MCR
2.116(C)(10) because she failed to prove her claim by clear and convincing
evidence, there is no genuine issue of material fact, the claim is non-justiciable,
and Defendant acted within the scope of a privilege or defense.
“A
motion under MCR 2.116(C)(10) tests whether there is factual support for a
claim. A court must consider the affidavits, pleadings, depositions,
admissions, or any other documentary evidence submitted in a light most
favorable to the nonmoving party in deciding whether a genuine issue of
material fact exists. All reasonable inferences are resolved in the nonmoving
party's favor.” Kefgen v Davidson, 241 Mich (internal citations omitted).
General
allegations that privileged statements were false and malicious are
insufficient to create a genuine issue of fact regarding whether a person
published a statement with actual malice. Id. Id.
A. Plaintiff cannot support a single allegation in her
complaint with facts to show why she believes Defendant acted with actual
malice. Since mere allegations are not
enough to survive a Motion for Summary Disposition, her claim should be
dismissed as a matter of law under MCR 2.116(C)(10).
Plaintiff’s
Complaint and Deposition testimony do not allege any specific facts to support
her bare assertions that Defendant acted with actual malice. This is not enough
for her claim to survive a Motion for Summary Disposition under MCR
2.116(C)(10).
Plaintiff’s
Complaint alleges it is “public knowledge” she was not drunk the night of her
accident, but does not provide any support beyond her mere assertion. Complaint, ¶ 15. The Plaintiff’s
Complaint alleges the Defendant acted with “malice,” but does not state why she
believes Defendant either knew his statements were false or entertained serious
doubts as to their truth or falsity. Complaint,
¶ 24. This lack of specificity is not limited to her Complaint – her deposition
testimony equally lacks any proofs to support her allegations.
For example, when asked why she believed Defendant’s
recall petitions were defamatory, Plaintiff could not provide any facts beyond
her mere allegation they were false:
Q: So, in your opinion
you think that by running for and being elected to a public office are you
inherently consenting to the filing of recall petitions by people who disagree
with your record?
A: I don’t know that I’m consenting to a recall petition. People that are –
A: I don’t know that I’m consenting to a recall petition. People that are –
Q: Is it
something you would expect to happen?
A: No. No. I do a good job as a trustee. I wouldn’t expect anyone would want me to be recalled.
A: No. No. I do a good job as a trustee. I wouldn’t expect anyone would want me to be recalled.
Q: But you think
citizens are entitled to file recall petitions?
A: Citizens are
entitled to file recall petitions as long as they don’t make defamatory
statements in them.
Q: Okay. So you
say that Mark Ford’s statements regarding your use of alcohol are false. Can
you describe how they’re false?
A: And which
statement are you referring to?
Q: Specifically
the fact that you have an alcohol problem or a problem with alcohol.
A: That is true.
I do not have an alcohol problem.
Q: Can you
explain why you believe that Mark Ford knows his statements are false?
A: I don’t – he
has no basis for that statement.
Deposition of Elizabeth Pantella, p 13:2-24,
attached as Exhibit G.
Further, Plaintiff was not able to describe how
Defendant’s recall petitions are different than any other recall petition:
Q: And wouldn’t
you define a recall petition in itself a defamatory statement?
A: Not
necessarily.
Q: Do people
often file recall petitions saying this person is so awesome I don’t want him
on my board anymore?
A: I haven’t seen one that did.
A: I haven’t seen one that did.
Id., pp 15:25-16:6.
Neither
is it compelling Defendant admits to acting out of anger or “ill will.” Deposition of Mark Ford, p 17:4-8,
20-22, attached as Exhibit H. Such motives do not create an issue of material
fact to support a finding of actual malice in a defamation claim brought by a
public official. Grebner, p 333.
Neither
is there an issue of material fact that Defendant communicated the alleged
defamatory statements to Mr. John Semple. Plaintiff alleges this in her
complaint, but does not support it with anything beyond her mere general
allegation. Complaint, ¶ 16. Mr.
Semple denied any such communication. Deposition
of John Semple, p 5:4-19, attached as Exhibit I. Since Plaintiff cannot
point to anything beyond her mere allegation, there is no issue of material
fact.
Even
if the Court sustains Plaintiff’s claim, she cannot even prove damages. When
asked about how the Defendant’s communications affected her reputation in the
community, she could not point to any specific facts beyond her mere conclusory
allegations:
Q: Okay. And can
you describe how his letter has damaged your reputation in the community?
A: Yeah,
absolutely. He’s telling people that I have a drinking problem, that I’m biased
in my vote. It has a huge impact on my credibility in the community.
Q: Does that
cause people to stop associating with you or trusting your decisions in the
town hall meetings, or not?
A: I haven’t
seen evidence of them stopping associating with me, but I don’t know what they
trust anymore. And certainly it could impact my ability to be re-elected.
Deposition of Elizabeth Pantella, p 16:15-25.
Although
Plaintiff honestly believes she has been defamed, that by itself is not enough
to survive a Motion for Summary Disposition. Fisher v Detroit Free Press, Inc, 158 Mich App 409, 415, 404 NW2d
765 (1987). In Fisher, the defendant
made the following publication:
“The car’s
insurer offered to pay the tree surgeon’s bill – $550 – but Fisher sought
$15,000 for the equivalent of ‘loss of companionship of the sick tree,’ Gills
said.”
Id., p 412.
The
court reasoned that the mere allegation the communication was defamatory, was
not enough. Id., p 415. This is
especially compelling considering the plaintiff in Fisher was a private plaintiff suing over a matter of private
concern while, here, Plaintiff is a public official with a higher burden of
proof.
Plaintiff’s
allegations, like those by the plaintiff in Fisher,
are nothing more than mere conclusory statements. Her complaint, the
depositions and other matters on record do not show how Defendant either knew
the statements in the recall petitions were false or that he entertained
serious doubts as to their truth. Further, Plaintiff is a public official, who
bears a higher burden of proof. The standard of proof is “clear and convincing
evidence.” MCL 600.2911(6). This is a very high standard – the same standard
used to terminate parental rights under MCL 710.51(6). In re Colon, 144 Mich App 805, 813, 377 NW2d 321 (1985).
Even
with making all reasonable inferences in her favor, she has not even come close
to meeting her burden of proof. There is, at best, nothing more than
conflicting testimony – that is not enough to survive a motion for summary
disposition, even under the less demanding preponderance of the evidence
standard (see Rakestraw v Gen Dynamics
Land Sys, Inc, 469 Mich 220, 231, 666 NW2d 199 (2003), holding that equally
credible, conflicting testimony is not enough for the plaintiff’s case to
survive summary disposition). Also, no further factual development can help
support her claim – the newspaper article and crash report preclude any finding
Defendant either knew his statements were false or that he entertained serious
doubts. Since Plaintiff failed to meet her burden by showing with clear and
convincing evidence Defendant acted with actual malice, there is no genuine
issue of material fact which entitles Defendant to relief as a matter of law.
B. Even if the Court find’s Plaintiff’s claim is
supported by facts beyond her mere conclusory allegations, the Defendant is
still entitled to dismissal of her defamation claim because it is
non-justiciable under the Michigan Constitution.
The
Michigan Constitution reserves in the people the power to recall elected
officials. Const 1963, art 2, §8. The current text revised the 1908 language to
make the sufficiency of recall petitions a “political question” – thereby
precluding judicial review. Id. The
courts have interpreted this broadly. “Courts should not, and generally do not,
interfere with this basic right.” Mastin
v Oakland County Elections Com’n, 128 Mich App 789, 799, 341 NW2d 797
(1983).
When
Defendant filed the recall petitions, he was exercising his rights under the
Michigan Constitution. The text of Article 2, Section 8, as well as the case
law interpreting it, preclude the Court’s jurisdiction of a reasonable exercise
of this right. Therefore, the Court should dismiss with prejudice Count I of
Plaintiff’s Complaint under MCR 2.116(C)(10) because it is non-justiciable
under the Michigan Constitution.
C. Alternatively, the court should dismiss Plaintiff’s
defamation claim because Defendant acted within the scope of a privilege or
defense.
Even
if the Court finds Plaintiff’s pleadings and testimony show actual malice, the
Court should still dismiss the claim under MCR 2.116(C)(10) because Defendant
acted within the scope of a privilege or has an affirmative defense.
1. The Court should refuse to impose liability because
Defendant’s comments about the qualifications of an elected official are
privileged, thus requiring dismissal of Plaintiff’s defamation claim.
In
Michigan, a non-media defendant has a qualified privilege to comment on matters
of public concern. Vandentoorn v Bonner, 129
Mich App 198, 207-208, 342 NW2d 297 (1983). In Vandentoorn, a public figure plaintiff sued a non-media, private
figure defendant over allegedly defamatory statements about the plaintiff’s
alleged abuse of his towing contract with the city. Id., p 201-202. Although the defendant’s communication turned out
to be false, it was made in good faith after receiving complaints about the
rates charged by the plaintiff. Id., p
202. The court refused to impose liability on the defendant and held the
non-media, private figure defendant should enjoy the same fair comment
privilege that is afforded media defendants under the U.S. Constitution. Id., p 208.
Like
the defendant in Vandentoorn,
Defendant’s statements in the recall petitions were made regarding a matter of
public concern – the fitness of a township trustee. Like the plaintiff in Vandentoorn who made the alleged defamatory
comments after receiving complaints about the plaintiff’s towing rates,
Defendant filed the recall petitions after reading an article, which taken
together with MCL 257.625(1)(a), reasonably implicated her in a crime,
punishable by up to 93 days in jail. The public is reasonably concerned with
the qualifications of their elected officials, making the recall petitions
reasonable after the crash became public knowledge through the newspaper
article. Therefore the Court should dismiss Count I of Plaintiff’s Complaint
under MCR 2.116(C)(10) because the recall petitions are fair comment on a
matter of public concern.
2. Defendant’s communications were true, or
substantially true – as supported by Plaintiff’s own admissions. Since
Plaintiff cannot sustain her burden of proof and there is genuine issue of
material fact, Defendant is entitled to dismissal of Plaintiff’s Complaint as a
matter of law.
Truth
is a complete defense to a defamation claim. Porter v City of Royal Oak, 214 Mich App 478, 485-486, 452 NW2d 905
(1995). The Defendant does not need to show every minute detail is absolutely
accurate. Collins v Detroit Free Press,
245 Mich App 27, 33, 627 NW2d 5 (2001). Substantial truth, which allows for
slight inaccuracies, is also an absolute defense. Id., p 33. A statement is substantially true if the literal truth
would have the same effect on the reader. Id.,
p 33.
In
Collins, the newspaper misquoted an
African-American congresswoman as saying, “I hate the race” (referring to Caucasians) while she actually said,
“I don’t like the race.” Id., p 29-30. The court held the
newspaper’s misstatement was substantially true, because, taken together with
the rest of the article, “[t]he gist of the actual statement was the same.” Id., p 33, 35-36.
Plaintiff
admits Defendant’s statements that she votes pro-police because they covered up
the accident, that she was intoxicated at the time of the accident, and
endangered township residents and property were “statements of fact.” Complaint, ¶ 19. If they are “statements
of fact,” they must be true – an affirmative defense. Although this may have
been an accidental admission that Plaintiff may later seek to amend, her later
deposition testimony is along the same lines:
Q: There is an
article that states that you admitted to taking some prescription medication.
Can you tell us what kind of medication that was?
A: I do remember
that the night of the accident or that week before the accident I had a really
bad cold and I was taking like a prescription antihistamine that my doctor gave
me. I don’t remember the name of it.
…
Q: Do you think
it was safe to take these, this medication along with a couple drinks and then
drive?
A: Yes.
A: Yes.
Deposition of Elizabeth Pantella, p 7:4-10,
21-23.
Q: So, correct
me if I’m wrong. You woke up in the morning on September 12th, took your
medication, attended a book club where you had alcohol and then went to a bar
and met with a friend and had more alcohol and then drove?
A: There was a
lot more that happened in my day than that. But I did attend my book club.
Q: And you
attended – so, aside from that you still feel that you were not impaired at
all, whatsoever, even though you consumed a couple drinks and you drove.
A: Correct.
Id., p 11:25-12:9.
Q: I’ll do a
hypothetical. If you read in a newspaper report that somebody was drinking
alcohol and took prescription medication and crashed their car and also
happened to be in front of you a police report where they blew a .76 as a
citizen in your shoes would you think they were intoxicated?
A: I think there’s facts and circumstances in every situation that are different. I can say in my circumstance I had a couple of drinks and I had taken medication during the day, but I was not intoxicated and I wasn’t impaired.
A: I think there’s facts and circumstances in every situation that are different. I can say in my circumstance I had a couple of drinks and I had taken medication during the day, but I was not intoxicated and I wasn’t impaired.
Id., p 14:6-16.
Not
only did Plaintiff admit to drinking and driving before the accident, she
admitted to mixing alcohol with prescription medications – a crime under MCL
257.625(1)(a), punishable by up to 93 days in jail. Although the responding
officer may have had no reason to believe Plaintiff mixed alcohol with
prescription drugs at the time, those facts came out later in the newspaper –
allegedly by Plaintiff’s own admission.
Plaintiff
alleges the accident was not covered up by the police. However, the responding
officer, James Patterson, seemed to indicate otherwise at his deposition. For
example the officer repeatedly maintained that he did not give a citation for
impaired driving or conduct further investigation because there were no
witnesses:
Q: How often do
you – actually before that, why didn’t you give her a citation even though she
was under the legal limit? She was still impaired.
A: Well, she was
under the legal limit and there were no witnesses to this accident.
Q: But even if
she was impaired you couldn’t give her a citation?
A: I suppose. I
don’t know. That’s standard protocol. They’re under the legal limit and there
were no witnesses to say what happened.
Q: She also
wasn’t wearing a seatbelt, so why was a ticket not given for that, either?
A: I’m not sure.
It was pretty routine. I just didn’t feel the need to do that at that time.
Deposition of James Patterson, pp 7:20-8:8,
attached as Exhibit J.
Mr.
Patterson, an officer with 17 years of experience, admitted to giving citations
to those under the legal limit in similar situations. The only reason he gave
for not citing Ms. Pantella in a similar situation was that there were no
witnesses:
Q: Just one last
question. I don’t remember if you answered this, but how many times in your 17
years, roughly, have you given a citation for someone who was impaired, not
over the limit but just impaired?
A: Impaired?
Over 17 years you’re asking me to remember? A lot.
Q: So, why is it
any different in this case?
A: In this case
she wasn’t driving. I mean, she was out of the car in this case. There were no
witnesses. I mean, she wasn’t moving on the road.
Q: So, from your
experience one car, one person, wouldn’t that make a connection that she was
driving the vehicle?
A: Yes it would.
Id., pp 17:17-18:4.
Mr.
Patterson also gave other information that is unfavorable to the Plaintiff. For
example, he noted there were liquor bottles on the scene along with other debris.
Id., p 5:7-22. Mr. Patterson also
noted Plaintiff was transported to the hospital on a stretcher. Id., p 11:20-21. This is hard to square
either with Plaintiff’s allegation she only sustained a wrist injury (Complaint, ¶ 7) or with her later statement that she broke
her arm (Deposition of Elizabeth Pantella,
p 5:4-7).
The
recall petitions allege that Plaintiff has “alcohol issues,” was a “danger to
township residents and property,” and votes “pro-police” because of the
cover-up. Plaintiff admitted to mixing alcohol with prescription medications
before her vehicle accident. Further, the officer failed to give a satisfactory
explanation why she was not cited. Even if these statements are not literally
true, the facts as laid out in Plaintiff and Mr. Patterson’s depositions have
the same effect on the reader – making them “substantially true” under the Collins standard. Therefore, the Court
should dismiss Count I of Plaintiff’s Complaint under MCR 2.116(C)(10) because
the statements are true, or substantially true.
3. Defendant is entitled to relief as a matter of law
because his communications are nothing more than mere opinion.
The
Court will not impose liability for statements of opinion if they amount to
nothing more than subjective assertions. Kevorkian
v Am Med Ass'n, 237 Mich App 1, 6, 602 NW2d 233 (1999). In Kevorkian, the court refused to impose
liability because it considered the Defendant’s statement that the plaintiff,
among other things, was a “reckless instrument of death,” a “killer,” and
currently involved in assisted suicides as mere opinion. Id., p 4.
If
the court in Kevorkian could consider
statements that a physician was a “reckless instrument of death” as mere
subjective opinion, certainly it is no stretch to read Defendant’s recall
petitions as mere subjective opinion – especially since they are reasonable
inferences from the newspaper article and police report. Taken together with
the later depositions, the Court should dismiss Count I of Plaintiff’s Complaint
under MCR 2.116(C)(10) because they were mere opinions.
4. The Court should dismiss Plaintiff’s Complaint
because holding him liable for bringing a public official’s questionable acts
to light would be against public policy.
The
Court should not impose liability where imposing liability would be
inconsistent with public policy. Schlinkert
v Henderson, 331 Mich 284, 289-290, 49 NW2d 180 (1951). In Schlinkert, the defendant wrote to the
Civil Service Commission and expressed concerns that the reorganization of the
Liquor Control Commission was a subterfuge to get rid of certain personnel. Id., p 286. The defendant also published
the letter to a local newspaper. Id.,
p 287. The court held the communication to be privileged because it involved
matters of public concern. Id., p
289-290.
Like
the defendant in Schlinkert who
avoided liability for a defamation claim when he published matters of public
concern to the appropriate agency, Defendant’s statements reasonably address a
matter of public concern in an appropriate forum. He read an article that one
of his township trustees was not ticketed in a single car accident involving
prescription drugs and alcohol. Defendant confirmed the accuracy of the article
by obtaining a copy of the police report. Upon confirming the truth, or
substantial truth, of those facts, he drafted recall petitions – three of which
were approved by the Oak Township Board of Trustees. Since the public is
reasonably concerned with the fitness and qualifications of its elected
officials, the Court should dismiss Count I of Plaintiff’s Complaint as a
matter of public policy under MCR 2.116(C)(10).
CONCLUSION AND REQUEST FOR RELIEF
THEREFORE, Defendant respectfully requests this Court to:
a.
find the Plaintiff’s complaint lacks
merit,
b.
order dismissal of her claim with
prejudice,
c.
grant reasonable attorney fees and costs
in defending this action, and
d.
grant other relief as may be
appropriate.
Respectfully
submitted:
_________________________
Joshua
Bannister (P12345)
Attorney
for Defendant
2630
Featherstone Road
Auburn
Hills, MI 48326
(315)
985-5624
Dated: February 26, 2013
[1] Joshua Bannister is not a member
of the Michigan
