Plаintiff, George Dienes, filed this defamation action on March 9, 1981, in Wayne County Circuit Court against Associated Newspapers, Inc., Sienna LaRene, the Michigan Humane Society, WXYZ, Inc., and John and Mary Doe, jointly and severally. On May 17, 1983, WXYZ, Inc. (defendant), only moved for summary judgment, GCR 1963, 117.2(3), alleging that the plaintiff had presented no genuine issue of material fact. The motion was heard on June 10, 1983, and granted by the Wayne Circuit Court. Plaintiff appeals as of right.
On March 11, 1980, the Michigan Humane Society received a report that a number of cattle were apparently starving on plaintiffs farm in Belle-ville. The Society obtained a search warrant and conducted an examination of the cows on March 12, 1980. Present were Sienna LaRene, a Humane Society attorney; Dr. Earl Milliman, a Humane Society veterinarian; Michigan State Troppers
That night a brief report of the investigation was shown on the 11 o’clock news on WXYZ-TV. The audio transcript of the entire report is as follows:
"Rich Fisher: It was late this afternoon when State Police and officials from the Michigan Humane Society converged on this farm in Belleville after receiving a tip that a herd of cows was starving. At first no one was home, so, with search warrants in hand, it was off to examine the cows. What was found was shocking.
"Sienna LaRene: They’rе in extremely poor condition. They’re very thin, I would say, to the point of being emaciated. You know at this time of year they have a very furry heavy coat. Well, under that coat all you got is bones, just skeletons most of them, this is a very bad situation.
"Rich Fisher: While the tests were being conducted, the owner of the cows came home and needless to say he was shocked.
George Dienes: Harrassment of some sort. I want to find out what it’s all about. I just came back from a (meeting) I was at and that is what I want to find out what is going on here now.
"Rich Fisher: These cows are finally getting a little bite to eat but as you can see that has not always been the case. The Michigan Humane Society says it will prosecute the owner of these cows to the fullest extent. That could be a $500 fine and/or 90 days in jail.
"From Belleville, Rich Fisher, Channel 7 Action News Reporting.”
The report was accompanied by film of the
Although later developments are not clear from the record, it appears that the Society decided not to prosecute the plaintiff.
In ruling on defendant’s motion for summary judgment, the trial court first found that WXYZ had a qualified privilege to report on matters of public interest and that the activities of the Humane Society were matters of public interest. The court therefore concluded that the plaintiff could not recover unless he could prove that WXYZ’s reporter made the statements with actual malice.
The court then appliеd traditional principles of summary judgment law and reviewed all of the evidence developed up to the time defendant filed its motion for summary judgment, 27 months after the filing of the complaint, to determine whether there were genuine issues of fact from which defendant’s actual malice could be properly inferred. To clarify its analysis, the court separated Fisher’s remarks into two categories. Fisher’s first statement related to the condition of the cattle:
"These cows are finally getting a little bite to eat but as you can see that has not always been the case.”
Fisher’s second statement related to the Society’s intent to prosecute:
"The Michigan Humane Society says it will prosecute the owner of these cows to the fullest extent. That could be a $500 finе and/or 90 days in jail.”
After viewing the evidence in a light most favorable to the plaintiff, the court concluded that there
I
Did the trial court err in finding that the plaintiff failed to present sufficient evidence of malice to raise a genuine issue of material fact?
We initially find that the trial court properly required plaintiff to show evidence of "actual malice” on the part of defendant or its employee in оrder to withstand defendant’s motion for summary judgment. There is no dispute that plaintiff is a private individual pursuing a defamation action against the media. We agree with the trial court that activities of the Humane Society are matters of public interest and that its search of plaintiffs farm involved plaintiff in a legitimate matter of media interest.
In
New York Times Co v Sullivan,
Michigan courts havе long recognized that the media has a "qualified privilege” to report on matters of public interest.
Lawrence v Fox,
Defendant obtained summary judgment under GCR 1963, 117.2(3), on the ground that pliantiff had failed to develop facts sufficient to support a finding of actual malice on the part of defendant or its employee and that defendant was therefore entitled to judgment as a matter of law. Plaintiff alleges two distinct errors on the part of the trial court. Plaintiff first contends that the trial court improperly judged the credibility of affiant Rich
In considering whether to grant or deny motions for summary judgment under GCR 1963, 117.2(3), the traditional approach is to apply a liberal standard for finding the existence of a genuine issue of fact.
Rizzo v Kretschmer,
Plaintiff quotes
Arber v Stahlin,
"Where actual malice, in the sense that an alleged defamer knew the statement to be false or acted in reckless disregard of its truth or falsity, is alleged in any of the pleadings, the cruсial and often determinative factor is credibility. As we have repeatedly emphasized, summary judgment is not available whenever a presented issue of material fact turns upon the credibility of an affiant or witness whose deposition has been taken. * * *
"It is simply not legally sufficient to say that since plaintiffs did not prove by their affidavits a publication with knowledge of falsity or reckless disregard of truth or falsity, the fact of actual malice did not exist. The determination of actual malice depends on more than a mere denial; it must be resolved from a study of the witness on the stand, his interest or lack of interest in the case, his role in the publication of the alleged libel, and the many other factors making up the issue of credibility.
We concur with the principle announced in Durant v Stahlin and Arber v Stahlin, regarding the suspicion with which summary judgments based on affidavits are to be regarded. We believe, however, that this principle is consistent with the general rule that requires a party opposing a motion for summary judgment under subrule (3) to come forward with evidence establishing a genuine issue of material fact. In Durant v Stahlin, for example, the Supreme Court affirmed the lower court’s grant of summary judgment because the plaintiff had failed to submit any evidence, by deposition, affidavit or otherwise, to contradict the defendants’ affidavits. In Arber v Stahlin, the trial court’s summary judgment was reversed because there was a genuine conflict in the evidence presented at the summary judgment proceeding. The plaintiff had presented an affidavit by one of the defendants alleging that the defendant newspaper promised editorial support for Senator Stahlin if he would publicly attack Durant. The court held that such evidence may support a jury’s reasonable inference that the defendants were out to "get Durant”.
In the instant case, summary judgment was not granted on the basis of an interested party’s affidavit. We have thoroughly reviewed the trial сourt’s reasons for granting summary judgment in this case as set forth in its opinion, delivered from the bench, and we find no reference to any affidavit filed by Rich Fisher. It is clear to us that the trial court based its decision on all of the other evidence developed by the parties during discovery. With regard to Fisher’s statement on the condition
With regard to Fisher’s remarks about the Society’s intent to prosecute, the trial court found that all of the evidence tended to prove that the statement was true at the time that it was made. Significantly, the attorney for the Humane Society testified by deposition that she had fully intended to file charges against plaintiff at the time the news report was releasеd and had even prepared the necessary papers. The trial court thus concluded that plaintiff did not and could not develop facts which would establish that Fisher’s statement was false. The court went on, however, to
Plaintiff alternatively argues that even if this Court refuses to find that the trial court improperly based its decision on the credibility of Fisher’s statements in his affidavit, summary judgment is nevertheless improper on the ground that plaintiff’s mere allegation of actual malice is sufficient in itself to raise an issue of fact.
In support of his position, plaintiff cites
Parks v Johnson,
This Court affirmed the trial court’s denial of summary judgment under GCR 1963, 117.2(3). In
Parks,
the only evidence presented by the plaintiff to opposе the defendant’s motion related to the plaintiff’s character but did not reflect on the disputed issue of the defendant’s malice. The
Parks
Court reasoned that, since character evidence tended to refute the defamatory allegations
The
Parks
rationale was disapproved, however, in
Hayes v Booth Newspapers, Inc,
"While this Court has previously ruled that the mere allegation of malice is sufficient to state a cause of action for defamаtion,
Parks v Johnson,
"In commenting on the use of the summary judgment mechanism in defamation actions, the court in Cerrito, supra, reasoned that:
" 'Summary judgment is an integral part of the constitutional protection afforded dеfendants in actions such as this. Plaintiff has purposely been given the heavy burden of proving actual malice * * *. When it has been established * * * that he cannot meet it, the First Amendment makes it incumbent upon the Court to grant defendant’s motion for summary judgment.’
"Therefore, the mere allegation of actual malice is not, without more, sufficient to raise a material issue of fact, particularly where, as here, defenses of a constitutional dimension are raised.”
We note that a panel of this Court has recently decided
Lins v Evening News Ass’n,
"We believe that, on summary judgment motions involving alleged libel of public officials or public figures by the media, if any benefit of the doubt is to bе given, it must go to the media under First Amendment constitutional rights of free speech and free press.”
The Lins panel went on to conclude that clear and convincing proof is necessary to establish a genuine issue of fact concerning malice sufficient to defeat summary judgment motions in media defamation cases.
It is too soon to determine whether the
Lins
departure from traditional summary judgment law will be followed in media defamation cases. At this juncture, we decline to hold that any "benefit of the doubt” must go to the media defendant nor do we hold that plaintifF must come forward with clear and convincing proof that a genuine issue of fact exists with regard to malice. We instead believe that plaintiffs need only present evidence of
Plaintiff asserts, in language reminiscent of the Continental Op, 2 that the issue is "what did Rich Fisher know and when did he know it?” He then claims that there is no evidence that the reporter knew when the cattle had or had not been fed or what caused their emaciated appearance. It can be еstablished, however, from the broadcast transcript alone, that Fisher knew that the Humane Society had received a tip that the cows were starving. Fisher also heard Sienna LaRene’s statement that the cows were "thin”, "emaciated”, "just skeletons”. It is also undeniable that Mr. Fisher observed the cows. Affidavits submitted by other defendants in this case establish that a number of observers concluded, from the appearance of the cattle, that they were severely malnourished. Against the indicia of reasonable basis for Mr. Fisher’s comment, plaintiff offered only the affidavit of Dr. Juchartz, which asserted (apparently) that, despite their appearance, the cows were not actually starving. Under current case law, this evidence is clearly insufficient to raise a factual issue regarding malice.
II
In ruling on defendant’s motion for summary judgment, did the trial court improperly make findings of fact?
Plaintiff contends that the trial court improperly made findings of fact. What the "no fact-finding”
Affirmed.
Beasley, J., concurs in the result, but prefers the rationale of
Lins v Evening News Ass’n,
Notes
Plaintiff urges us to hold disposition of this case pending the Supreme Court’s decision in
Peisner v Detroit Free Press, Inc (Peisner #2),
Continental Op is a fictional character created by Dashiell Hammett as the anonymous narrator in some of his stories.