Rouch v. Enquirer & News of Battle Creek

19 Enquirer Rouch v & News ENQUIRER ROUCH & NEWS BATTLE OF CREEK 8, 1989, August Lansing. Docket No. 108595. Submitted at Decided 4, 1990. appeal applied June Leave to for. brought David J. Rouch a libel action in the Calhoun Circuit against Court & of News Battle Creek in connec- published stating newspaper tion with an article in defendant’s charged that he had been with criminal sexual conduct after being raped identified his own children as the man who had baby-sitter. alleged report Plaintiff was false and that, defamatory although in view of the facts arrested and telephone by released on interim bond set over the a district magistrate, formally charged court he was never with criminal charges brought against sexual conduct after were another individual, children, and that it was his ex-wife’s and not his own, court, wrongly plaintiff. Stanley who had accused The J., Everett, granted defendant, summary judgment in favor of finding defendant, in the absence of actual malice qualified privilege report article was entitled to a on as a general public Appeals matter of interest. The Court of re- versed, holding privilege report that there is no on matters public statutory privilege reporting interest and that the judicial proceedings apply official did this case. (1984). App Supreme upheld ruling by Court Appeals remanded the case to trial court. (1986). Following trial, Miller, J., Stephen 427 Mich 157 B. jury plaintiff returned a verdict favor of him $1 awarded damages. appealed. million in Defendant Appeals The Court of held: 1. proving Plaintiff met his burden of that defendant had falsely reported plaintiff charged had been with criminal sexual conduct and that his children him. own had identified presented evidence showed that was never ar-

_The References 2d, 160, 169, Damages 1021-1025; Am Jur Libel §§ and Slander §§ 172,195-198, 252, 256, 257, 260, 261, 446, 447. necessity expert testimory negli- Libel and slander: to establish gence by private of media defendant in defamation individual. 37 ALR4th 987. any charge plaintiffs raigned own on and that or indicted perpetrator as the children had not identified rape. pre- expert journalism testimony The of an in who was 2. plaintiff question by sufficiently the raised a of fact as to sented newspaper negligence reporter of the article and the of the question negligence properly submitted to such that the of was jury. the statutory qualified privilege newspaper publish to 3. The of a apply reports judicial proceedings not here where the of does magistrate, may by testimony, have set the bond over her own department telephone response request by in to a a sheriff’s the magistrate acting judicial capacity in officer. Even if the was bond, setting nothing in the record indicated that when proceedings question product informal article in was the of the magistrate. before the Opinion testimony by plaintiff’s expert journalism on 4. with regard negligent to whether was and whether the defendant privileged properly under article was or libelous was admissible MEE 702 and 704. testimony 5. of Harmless error resulted from admission respect by plaintiff’s expert journalism postpublica- on with to by tion events and activities defendant. defendant, prejudice 6. In the to the trial court did absence of consisting admitting not in a note sent to err an exhibit of friends, plaintiff by clipping from one of his to which note a reporting plaintiff’s The Detroit News arrest and libel suit court, however, against defendant attached. The trial erred admitting consisting in of a Detroit Free Press another exhibit repeated in defendant’s article article which statements made reported proceedings plaintiff’s on the court over libel suit. republication The Free Press article was a for which defendant general liability liability cannot rule that no incur under republication by attaches for others without authorization party of accused libel. The Free Press article also was protection statutory qualified privilege for within the of the However, reporting proceedings. judicial in view of official defendant, against other evidence the trial court’s error was allowing testimony harmless. The trial court also erred in storage public respect to librarian with on microfilm of Enquirer relating plaintiff’s & to News articles libel suit against proceedings and the court thereon. defendant various protection statutory Those articles were within the qualified privilege reporting judicial proceedings. of official However, allowing the trial court’s error in the librarian’s Rouch v & News testimony against was harmless in view other evidence defendant. refusing jury 7. The trial court did not err in several instruc- requested by correctly tions defendant. The trial court deter- requested applicable mined that the instructions were not to case. this denying 8. trial court did not its abuse discretion nothing defendant’s motion for remittitur. Defendant offered plaintiff’s arguments damages, to rebuttal evidence and as to improper verdict or excessive. Affirmed. Allen, J., plaintiff G.S. dissented and would hold that failed carry proving burden the statements in defen- dant’s article were false. He hold would that the article truth- fully suspect rape, stated that was arrested as a in the inaccuracy concerning plaintiff’s purported minor falsity, identification his own was not children a substantial "charge,” opposed and that in the broad sense of the term legal sense, truthfully its the article stated that had rape. Judge been accused of Allen would order a reversal of the

judgment and a dismissal of the case. — Sufficiency 1. of Evidence Evidence. challenges sufficiency a Where defendant in civil case the of the presented by plaintiff, evidence the the evidence must be light plaintiff, giving viewed most to favorable party every of benefit reasonable inference which can be if, evidence; viewing drawn from the after evidence in this manner, differ, question reasonable men could is one for jury. Privilege Newspapers — — — 2. Libel and Slander Qualified Proceedings. Judicial statutory qualified privilege newspaper publish of a re- ports judicial proceedings apply of does not in the case where question proceeding by the article in relates an informal magistrate, telephone which a in a conversation with a officer, for, person sets interim bond for a arrested but not (MCL charged with, subsequently 600.2911[3]; a crime MSA 27A.2911[3]). Expert — Opinion Testimony Appeal. — — 3. Witnesses Witnesses may expert opinion testimony A trial court in its discretion admit qualified it expert where determines that the witness is as an field, require expert’s in his where there are which an facts interpretation analysis, knowledge or where witness’ is 184 Opinion op the Court testimony jury; particular such value to the the admission of appeal an abuse of discretion not be reversed on absent will 702). (MRE Opinion Expert Opinion Testimony — — — 4. Witnesses Witnesses on Ultimate Issues. testimony Expert inference is in the form of an or though an ultimate to be admissible even it embraces issue 704). (MRE by trier fact decided Admissibility Appeal. Relevancy — — — 5. Evidence A whether evidence is relevant is left to the trial court’s decision appeal reversed on absent an abuse discretion and will not be discretion. Liability. Republication — — 6. Libel Slander Others generally publisher defamatory The author or of a statement by way liability, a distinct of action or incurs no either as cause defamation, enhancing damages original for a voluntary repetition republication of the and unauthorized or defamatory independently. matter others who act Damages — 7. Remittitur. remittitur, court, ruling for must consider: A trial on motion methods, (1) improper the result of whether the verdict was corruption, prejudice, passion, partiality, sympathy, or mistake (2) fact; the limits of of law or whether the verdict was within just compensation minds would deem for the what reasonable (3) injury sustained; actually and whether the amount awarded comparable to in similar the state and is awards cases within jurisdictions. in other plaintiff. Jereck,

John M. Hargrave, Doyle (by Nixon, C. Devans & Robert Bernius), (by Sullivan, & Hamilton Schulz Sullivan), M. for defendant. James P.J., Before: and Neff and G. S. Murphy, All JJ. en,* action, J. In this is based on a libel which Neff, report plaintiffs published by defen- arrest news * Appeals judge, sitting Appeals by Former Court of on the Court of assignment. Rouch & News Opinion op the Court newspaper 22, 1979, dant on December defendant right appeals jury awarding as of from a verdict plaintiff million. affirm. We $1

i underlying dispute. The not in facts are At the publication plaintiff single, forty- time of three-year-old was a residing children,

man with his two Tony Nick, at 631 Golden Avenue in Battle years Creek. He had lived there for some thirteen employed and had been at Post Cereals-General twenty-three years. Foods for some plaintiff 20, 1979, ex-wife, On December met his Mayo, lounge Shannon at a after work. After having plaintiff Mayo drinks, some went Mayo’s ages children, home to feed her nine and arrange baby-sitter. eleven, and to for a While Mayo changed plaintiff picked up clothes, her baby-sitter Mayo’s They and returned to home. evening, ending up lounge went out for the at the they staying where had met after work. After at lounge until 2:30 21, 1979, December a.m., they plaintiff’s went to home on Golden Avenue plaintiff’s sleeping where son Nick was on the talking they couch. After a short while went to bed. plaintiff later,

Sometime was awakened Nick who said that police were at the door. The they officers told had come to pick up charge him on a sexual of some sort. they wrong Plaintiff informed the officers had the person they go and, if would inside and talk with lady with, whom he was she would tell them they wrong person. had the re- officers fused to do so and took to the Bedford Township Department. Police plaintiff repeated story

There he had told App 19 op Opinion the Court to the removed Plaintiff was police officers. a.m., December Friday, 6:30 at about county jail p.m., released on a but, he was 21, 1979, 2:00 about bond, the condition on recognizance personal 28, 1979. arraignment on December for appear he he was arraignment, for appeared When charges had not been the court clerk told A formal warrant go. free to he was filed and later, another and, months several never issued offense. with the charged person 22, 1979, morning the December B-5 of Page Enquirer Battle Creek & News of edition of article: following news carried arrested man has been 43-year-old A 17-year-old assault of a charged the sexual with his children baby-sitting with who was women [sic] in Finlay Avenue house on North at his ex-wife’s Township. Bedford by Bedford suspect has been identified The of 631 Golden police David J. Rouch Township $10,000 recognizance personal on a Ave. He is free arraignment District pending his interim bond charged first- is with next week. Rouch 10 Court degree criminal sexual conduct. the house allegedly entered Rouch Police said young 4 a.m. attacked Friday about knife to cut the have used a He is said to

woman. victim’s clothes off, police said. relative, took her who later called The victim police. The Hospital and then called Community children, according to by his suspect was identified police. by Emmett his home arrested at Rouch was he informed where

Township police, were who investigators. Township by Bedford lived Friday was authorized charge against Rouch County Prosecutor’s office. by the Calhoun re- Kaufman, veteran beat ten-year Stan Rouch v & News op Opinion the Court Enquirer, porter typed the story after receiving the information by telephone from Bed- ford Township police. It is practice Kaufman’s make the rounds of the area police departments each day person either or by telephone. 26, 1980,

On November eleven following months publication, plaintiff for the first time contacted Enquirer the and a demanded retraction within 3, 1980, ten days. On December a retraction was published. 5, 1980, On December filed suit alleging that the article concerning plaintiff’s ar- rest was false and defamatory.

ii 14, 1982, On June the Calhoun Circuit Court Enquirer’s granted the motion for dispo- summary sition on ground the that report of an arrest is of general public entitling interest a newspaper to a qualified privilege. appealed Plaintiff to this Court. In Rouch Enquirer v & News of Creek, Battle Michigan, 137 39, Mich App 47; 357 NW2d 794 (1984), this Court reversed and held that the statu- qualified tory privilege contained MCL 27A.2911(3) 600.2911(3); MSA was inapplicable be- cause no warrant was issued and there were no official proceedings. appealed

Defendant to our Supreme Court. In Rouch Creek, & News of Battle 427 Mich 167; 398 (1986), NW2d 245 Supreme the Court agreed with the Court of Appeals the statute does not apply, but reached that conclusion through a different analysis. Supreme The Court reasoned that an arrest that amounts no more than apprehension an is not a "proceeding” under the statute. 427 Mich 172-173. Accordingly, Court concluded that the information which was orally furnished Kaufman did privi- enjoy op Opinion the Court proceed- “public

lege official afforded ings” statute. adopted negligence Supreme Court also Welch, Inc, 418 US of Gertz v Robert

standard (1974), held 2997; 41 L Ed 2d 789 323; 94 S Ct required to show malice on was not part Instead, 427 Mich 202-203. of defendant. report of an arrest and Court held that probable cause for that facts used to establish public speech of a concern amount arrest Philadelphia Newspapers, Inc v the rule of Hepps, L 767; 1558; 89 Ed 2d 783 475 US S Ct (1986), holding, applied. 427 Mich 206. In so stated at 206: importance type of this of infor- Because society, plaintiffs choose to in a free who mation reports of such

bring actions in libel on the basis false in prove that the statements were must first negligent proving addition to that defendants were reporting. in so trial court for

The case was remanded to the Supreme proceedings with our Court’s consistent opinion.

hi A February eight-day 1988, 9, trial com- an On wife, Plaintiff, in circuit his former menced court. occurring his two testified to the events sons morning early of December on the afternoon and forth above. as set pro- expert Mollenhoff, witness, Plaintiff's Clark Washington University, journalism at fessor of negli- objection that Kaufman was testified over Enquirer & News Rouch v Opinion of the Court get the gent other side of the he did because police often story. evidence is that He observed good irresponsible that sources from drawn follow-up requires journalism check- some at least police report. ing accuracy He stated the the of time on pressure in the instant was no that there Kaufman to contact time for and there was case Rouch or other including Mayo. witnesses, He negligent also because that Kaufman was testified methods to learn the not attend seminars he did investigative reporting. In addi- and standards tion, negligent newspaper itself was that the he testified approved Kauf- what the editor because changes any substantive written without man had also found the "retraction” all. Mollenhoff at the According Enquirer Mollenhoff, to insufficient. give purpose the to notice to of a retraction is the public nothing story to the first there was merely printed. Instead, "retraction” that was prosecute was based not to the decision said on insufficient proof, could indicate that which against Rouch. When some evidence there was average article had on the effect the asked what reader, Enquirer’s replied use of the he sufficiently "allegedly” detract did not word made from the fact that statements reader According Mollenhoff, were false. average com- conclude that Rouch reader would rape children and that his abso- mitted the brutal lutely person involved. him as identified testimony, de- of MollenhofFs At the conclusion plaintiff, who testi- counsel cross-examined fense get in touch with the that he made no effort fied seeing article, he did but that after township false arrest and settled out sue hoped explained he the matter He court. not, but, it he filed suit. He die when did would wages, in- no loss of that he suffered conceded Opinion op the Court expense, fringe curred no medical and lost no promotions benefits or because of the article. Mayo plaintiff’s and two sons testified at trial regarding transpiring night plaintiff the events eight arrested, and some friends and co-work- printed ers testified as to the effect the article had upon them.

Defendant’s motion for a directed verdict was respects that, denied in all but one. The court held malice, because had not established actual punitive exemplary damages would not be allowed.

B testify The first defense witness to was Kauf- procedure man. He testified it that was his usual police department person, to make the rounds but after he made his contacts tele- 8:00 a.m. phone. upon Kaufman stated that he came story Township police Rouch when the Bedford gave told him a man had been arrested him particulars some stated that it was decided that the of the incident. Kaufman also

story would not Friday, be used December edition of the get paper, story he did not until entire afternoon of December 21. Kaufman called the prosecutor’s suspect office and was told that Township had been arrested and that Bedford story. According Kaufman, had the telephone afternoon he received a call from either Sergeant Minier or Chief Bell of the Bedford Township Department Police and was told that the suspect had been court and was released on Kaufman further stated after bond. telephone story call, he wrote the and went home. attempt Kaufman testified that he made no get Rouch, that he had touch with but no in. Rouch & News Opinion of the Court question to the information that he reason re- police. not ceived from the the Kaufman was aware of suspect’s police policy about the release of a According police usually Kaufman, to name. give out it will the name but ask that be held until get suspect they more information or until "goes to court.” examination,

On redirect Kaufman testified that police requested that he not use Rouch’s name they that, until contacted him. He also testified police they him, him when the the contacted told that prosecutor was involved and that the name could be used. any obligation asked if he felt he had

When to police truth, find out whether the had told him the replied police gives you that if a Kaufman officer information it is safe to conclude that it is correct. that, Kaufman further stated because he had such good working relationship police, a had no reason to with the he

question the information and upon honesty Sergeant relied of Chief Bell and Minier. Kaufman conceded that he had never been any investigative reporting sent on seminars explained knowledge investigative that his of journalism thirty-four years was on based his experience reporter. as a that,

Kaufman also stated as of the date of the suspect article, he did not know another had been picked up police and did not know the state were in the involved matter. When if asked he knew baby-sitter, that had assaulted the Kauf- replied man only reporting he did not know but that he was police

what the had told him. Testifying Giles, next was William chairman of journalism the versity school at Louisiana State Uni- and editor The Detroit News from 1977 through 1983. Giles testified that Kaufman’s con- ordinary journalism met duct standards of Opinion straightfor- reporter Kaufman’s article speculation, ward, no and was contained up.” opined "jazzed handled the He Kaufman experience, story properly based on his report accept officer’s of what he would transpired. testify Martin, who, in was Daniel Next managing Enquirer. editor of the Martin testi- incompetent, anything fied that Kaufman was but years over the and had had won numerous awards helped reporters. often break new Township police Bell, chief of Bedford at John publication, by deposition the time of testified given information to Kaufman he had not about township’s policy it was the the assault because not to release information about a

suspect until arraignment. However, cross-examination, on after capacity that, chief, he admitted in his he talked Kaufman on several occasions had with plain- police activities. Bell also stated that about may $10,000 have been handled over tiffs bond Strong. telephone by Magistrate Betty Roy Fischer, Defendant’s final witness was direc- graduate program University of tor of the Missouri’s school journalism. Fischer’s testi- mony that of Giles. was consistent with William

c Magistrate Strong, plaintiff rebuttal, In called for testified that she had set bond but who telephone proceedings were and not in that the department had The sheriffs called and court. $10,000. that, She her to a bond stated asked set things, setting among bond, other she takes when of the offense and account the nature into probability of conviction. & News Rouch Opinion the Court

D Strong’s testimony, Magistrate At the close ver- for a directed renewed its motion defendant dict, asserting prior arguments incorporating and also all protected disputed was article privilege” proceedings by the "official from suit 27A.291K3). 600.2911(3); statute, lowing Fol- MCL MSA arguments, the trial court took extensive following but, on the the motion under advisement privilege” proceedings day, ruled that the "official plain- again apply1 ruled because did jury malice, tiff had failed to demonstrate puni- exemplary or not be instructed as to would tive damages. instructing inquired jury, any the court

After parties objections, had additional whether party any objections. and neither raised jury returned a verdict in favor of damages of million. Defendant’s and awarded motion for $1 notwithstanding judgment the verdict granted respects, stay denied in all but right pending appeal. appeals Defendant as of raising grounds seven reversal.

iv A plain- appeal on is whether The first issue raised Supreme proofs met the test laid down our tiff’s opinion case, i.e., in this Court in its earlier in the article whether statements dissenting colleague, citing were false. Our Appeals opinion in this case and earlier Court of App Press, Inc, 158 Mich Fisher v Detroit Free (1987), 428 Mich 413; 404 765 lv den NW2d required Supreme opinion clearly this result. Court Rouch 427 Mich 164-173. Opinion of the Court disputed (1987), only must finds that they proven in a false, must be false be

statements material sting, gist, analysis, aspect. if the or Under this substantially true, the fal- the article is Supreme sity opinion Court not met. The earlier test is ap- rejected specifically this in this case distinguish, proach: as did decline to "[W]e Appeals, from of the article the essence Court supporting 427 Mich 204. facts or details.” its goes say an that whether The dissent on legal question, substantially true is article is opinion Appeals again citing the earlier Court of App 39, 43, n 2. The case, 137 in this speak opinion Supreme to this does not Court issue.

B its article is read for hold whether the We presented gist simply or for the information proving fact, fal- has met his burden sity.

c says essence, article Reduced to its first-degree charged with the crime assault, conduct, and that sexual sexual criminal person identified him as the who his children crime. Neither of those assertions committed the any "charged” true. Plaintiff was never with by his former crime and the identification was children, not his own. wife’s Supreme case, in this In the majority opinion notes at 160: arrested, Although plaintiff in fact was he was crime, and ulti- formally charged with the never County else was. The Calhoun

mately, someone Enquirer & News Rouch v op Opinion the Court issue refused to apparently had Prosecutor’s Office a warrant arrest. plaintiffs after Appeals the same conclu- reached The Court "Although plaintiff for the arrested sion: crime, charged.” 43. never he was against plaintiff "charges” refers to The article paragraphs. In the first six times in its brief three paragraph says: 43-year-old man has "A been it charged sexual assault of with the and arrested paragraph 17-year-old The second [sic].” women person plaintiff by arrested, name as identifies first-degree charged says: with "Rouch is it and para- Finally, the last sexual conduct.” criminal charge against graph says: Rouch was autho- "The County Friday by Prosecutor’s the Calhoun rized message Unfortunately, case, in this Office.” Enquirer article was not told to the readers Supreme Court, because, noted our true as charged. plaintiff was never says that the common in this case The dissent "charge” usage means "accuse” of the word and so the was accused of assault that article was not false. line holding problems this

There are with reasoning. First, in the face of the it flies Supreme earlier of our its agree Second, do not in this case. we meaning commonly the word understood "charge” merely New is to accuse. Webster’s Language, Dictionary Sec- of the American World (1984), College in its includes "accuse” ond Edition "charge,” the term it also includes definition of but import "indictment,” more serious a word of far implies implications. Indeed, "indictment” The Random House accusation. formal criminal (1984), College Dictionary, charge defines Rev Edition explicitly” formally or "11. to accuse as "31. an accusation.” 184 Opinion of the Court accept proposition Even if we were to the usage "charge” the common only particularly of the term relates accusation, article, written, to an the as paragraph, certainly

the last uses the legal specific term in a much more In sense. posttrial denying motions, defendant’s the trial judge regarding came to the same conclusion commonly meaning understood the word "charge” as well as the use of the term in the question. bench, article in In his from the judge Michigan, that, the trial noted the use of "charge” great consequences the word a has because felony charge brought only can be after review by prosecuting attorney, duly elected to that grand by jury. office, or on indictment He went "charged” on to find that the word carries the meaning "of an authoritative determination of enough go judicial proceed- evidence to ahead with ings.” He commented that the evidence and testi- mony in this case established this use and defini- "charge” tion of the word and that the use of that published by word in the article defendant "con- templates some authoritative determination that something proper by there was there authori- that, ties.” He then went on to find from all the plaintiff case, evidence in the the claim that had charged jury and, been was false from reasonably could conclude that the article was false. plain language implication

The and clear of the Enquirer article are that there was more than a simple against plaintiff. accusation The article says charged twice that was with a sex paragraph says prose- crime, and the final that the charge. prose- cutor’s office authorized commonly by cutor, as is known and as noted judge, just prosecutor trial accuse; does not proceedings, authorizes formal criminal and that is Rouch News & Opinion of the Court happened. says exactly can There the article what reported that both details be no doubt say gist for- was article the mally charged crime, there not that with a serious wrongdoing. merely an accusation understanding word use of the This printed "charge” out the retraction is borne following starts with the The retraction defendant. paragraph: man, Township accused young Decem- An Emmett last woman, assaulting a sexually of ber charged in formally the case later never being prosecuted for man who another is arrested [Emphasis crime. added.] language Perhaps it this which led Appeals panel "The Court to conclude: earlier parties agree underlying facts that the behind substantially App story 42-43. false.” are Cavanagh language Perhaps this also led Justice falsity opine our that was not before the issue Supreme this case Court in its earlier review of "fairly con- it was clear that article because fact, In false information.” 427 Mich 207. tained Cavanagh vir- viewed as a the retraction Justice tual falsity. admission of reasoning problem final with the line of Supreme by

employed out of our the dissent arises ruling majority in this case. In Court’s proceedings privilege” statute, the "official that 27A.291K3), 600.2911(3); apply not MSA does MCL to an arrest, an "We conclude that said: apprehen- to no than an that amounts more arrest sion is not 'proceeding’ under the statute.” Likewise, mere 172-173. conclude that a we Mich apprehension is more that an is arrest no determining "charge” purposes whether question here was false. the article Opinion op the Court weight Further is added to the article inclu- plaintiff sion of the inaccurate information that say was identified person’s his own children. To that a perpe- own children identified him as the credibility trator of a serious crime lends to what reported possi- is and would seem to eliminate the bility might there have been a mistaken identification.

Accordingly, plaintiff we hold that met the bur- proving falsity, finding den of and we affirm the judge plaintiff proven falsity the trial had a matter of law. appeal

The second issue raised on is whether plaintiff submitted sufficient evidence to establish negligence. defendant’s challenge sufficiency

A to the of the evidence requires light that we view the evidence in the give most favorable to the and that we every the benefit of reasonable infer- ence which can be drawn If, from the evidence. viewing after manner, evidence this reason- jurors question differ, able could is one for the jury. Boggerty Wilson, Mich 522; (1987), (1988). NW2d lv den 430 Mich 851 ample justification We find that there was to sub- negligence question jury. mit the to the expert professor journal- witness, Plaintiff’s of reporter ism, gent negli- testified that defendant’s was particulars: get- in at first, least two in ting story talking the other side of the after to the police, failing and, second, in to attend seminars investigative reporting. expert about The also tes- newspaper negligent tified that was because reporter’s the editors should have corrected the Enquirer & News Rouch v op Opinion the Court published it and because not have or should work inadequate published retraction. it an expert plaintiff’s testimony more of question jury enough fact for to raise than reporter negligence as to consideration newspaper. VI privi- argues is the article next Defendant proceedings” leged statute, MCL under the "official 27A.2911(3). 600.2911(3); This issue MSA Supreme soundly rejected by our and was raised case: in its review of this Court to no arrest that amounts conclude an We "proceeding” apprehension is not a than an more under orally does Accordingly, the information the statute. support it furnished to the defendant privilege enjoy such, not, afforded as "public proceedings” [427 statute. and official 172-173.] noting after The Court reached this conclusion proceedings publication judicial taken that "the magistrates privileged to the same extent is before proceedings trial court.” Seizing upon observation, ar- this defendant 164. eight-day gues trial in the record in the case, record on sum- unlike the truncated instant Supreme disposition mary in its our before Magistrate case, discloses that review of this Strong judicial capacity she re- in a when acted magistrate testified on bond. The leased setting bond, the nature she evaluated before charged, probability of convic- of the offense likely tion, and the sentence. 27A.2911(3) 600.2911(3); provided in

MCL MSA publication: part at the time of 38 184 Mich 19 Opinion of damages No shall any be awarded in libel action brought against reporter, editor, publisher, a or proprietor newspaper publication for the in it report public of a fair and true any and official proceeding, any heading or for report which is a fair and true pub- headnote of the article lished.

We do not believe that participation brief Magistrate Strong in setting bond brings this mat- ter within the "official proceedings” statute. When if, asked upon setting case, bond this she did so magistrate, as a Magistrate Strong responded she could not recall particular this bond and that perhaps one of the sheriff department’s officers provided her information, with some prob- and she talked ably to the arresting officer by telephone. But assuming, arguendo, bond, in setting magistrate was acting in a judicial noth- capacity, ing in the record indicates the article in question was the product of the informal proceedings before the magistrate. Therefore, we find no error.

VII appeal, On defendant argues that court, the trial over repeated objections, improperly permitted plaintiff’s expert witness, Mollenhoff, Clark voice his on three ultimate issues of law which, Doan, under People v 141 App 209; Mich (1985), NW2d 593 and In re Estate, Powers 150, 172; (1965), NW2d 148 are issues which properly should be decided by the jury. These ultimate issues of law are: (1) That defendant engaged "pattern negligence” and that defendant "grossly negli-

gent.” (2) That the article was not "privileged” Rouch & News Opinion of the Court privileged was "not the told defendant what in any respect.” (3) was "libelous.” That the article testimony under admissible find Mollenhoifs We provides: 702 MRE 704. MRE MRE 702 and recognized scien- the determines If court tific, technical, specialized knowledge will or other the evidence of fact to understand trier assist issue, qualified in a fact witness to determine or as an skill, knowledge, experience, train- expert by education, in the form may testify thereto ing, or opinion or otherwise. anof provides:

MRE 704 opinion or inference in form of an Testimony objectionable is not because admissible otherwise an ultimate issue be decided it embraces trier of fact. expert may admit in discretion

A trial court its opinion testimony where it determines expert qualified field, an in his where is as witness interpre require expert’s which an there are facts analysis, knowl where witness’ tation or jury. edge particular value to the Keefer v is App 563, Bard, Inc, 570; 313 NW2d C R (1981). that a A trial court’s determination 151 qualifies expert will not be reversed as an witness Kleek, Van Evans v an abuse discretion. absent (1981). App 798, 805; 486 Mich 314 NW2d 110 expert’s from conclusions are drawn an When professional depend on on record and facts may knowledge be admissi skill, the conclusion or issues ultimate issue or if embraces the ble even it Ruddock v of fact. the trier to Lodise, decided be 503-504; 663 499, 320 NW2d Mich 413 184 Mich App Opinion op the Court (1982). expert a trial court Where determines that testimony will assist the trier fact in under- standing determining or the evidence a fact expert may testify issue, the in the form of an opinion testimony even where embraces the Independence ultimate issue to be decided. See Twp Skibowski, 186; (1984). NW2d 903 expert journalism.

Mollenhoff testified as an expert attorney. witness, He is also an As an he permitted by testify MRE 702 to in the form negligence, of an defendant’s privileged, article’s status as and the article’s sta- Although "negli- tus as libelous. he used terms gence,” "privilege,” point "libelous,” at no did purport he Instead, to define those terms. the always spoke record shows he the form having given an after first a factual foun- dation the ultimate issue to be decided. Accord- ingly, properly we find the trial court the allowed testimony in evidence.

VIII arriving In at his conclusion that the negligent, post- was Mollenhoff to referred several publication reporters He events. stated that have obligation go days an to back several later and up story newspaper’s follow on and that the subsequent incomplete retraction was and unsatis- factory. According defendant, to it is error to find negligent a defendant activities on the basis of events and taking place publication. Gertz, after supra. transcript

An examination the discloses prior making postpublication reference pre- events, Mollenhoff had testified certain publication practices, procedures, safeguards Rouch v Enquirer & News Opinion of the Court reporter, employed the have been should newspaper company Because itself. editor, employed, con- Mollenhoff not been these had negligent. Much, was that defendant cluded testimony postpublication though all, of by brought cross-examination on defendant’s Also, infor- stated Mollenhoff of the witness. subsequently did discovered mation opinion. Therefore, we of his not form basis postpublication in admission find no error testimony. into Likewise, find no error the admission we regarding testimony MollenhofFs evidence of average upon A reader. decision article’s effect to the trial relevant is left evidence is whether on not be reversed discretion and will court’s appeal Kirk Ford of discretion. an abuse absent App 337, Co, 343; 383 NW2d Motor (1985). testimony well within Mollenhoff's parameters Moreover, as 702 and 704. of MRE plaintiff’s eight earlier, testified as friends noted Thus, if even of the article on them. to the effect respect expert’s testimony inad were in this find no abuse missible, harmless. We the error was of discretion.

IX arising alleges out of the error Defendant next testimony re- of certain exhibits admission garding exhibits. other note was a handwritten Exhibit Five

Plaintiff’s lady in Delores named from a friend to clipping Wayne from was attached a to which Fort against regarding a libel suit The Detroit News passing reference made a The article the News. Enquirer "by against a man who was a suit arrested, rape prosecuted, his of for but Opinion of the Court making special stepchildren’s baby-sitter.” After presence jury, record outside the of the the trial judge republication admitted the exhibit as a probable consequence of which was a natural and the initial showing aggravation publication purpose also of damages.

of Plaintiffs testi- mony presence jury regarding in the of the very article was brief. ruling

We hold that the trial initial that court’s original the article publication far from the was so removed only its admission would be con- fusing unpersuaded However, was correct. we are fleeting original publica- reference plaintiffs preju- tion without mention of name was dicial. Plaintiff testified that Delores knew of the original publication prior incident and the ing to read- it in about The Detroit News. page

Plaintiffs Exhibit Nine is the first of an appearing in article the Detroit Press on Free December going 1988. It is entitled: "News media ruling rape to war over libel suit arrest.” holding It recites the facts this case of and the panel Appeals. the earlier first of the Court of After ruling admissible, the exhibit was only trial court reversed itself and allowed oral testimony regarding the article.

Generally, publisher or the author of a defama- tory liability, statement incurs no either as a enhancing by way distinct damages cause action or original defamation, of the for a volun- tary repetition republication and unauthorized or defamatory matter others who act inde- pendently. Liability publisher Anno: of defama- tory repetition republication statement for its or underlying others, 96 ALR2d 373. The reason general repetition rule is that such cannot be probable considered the natural and result mak- ing defamatory statement. ALR2d 376. & News Rouch (Doubt Opinion op the repetition basically of the facts Nine is Exhibit original It also concerns article. in the contained Appeals panel ruling in Court of of the earlier pro- proceedings” statute The "official this case. damages be awarded a libel shall that no vides report publication a true and accurate for action proceedings. any Under both the statute court publisher is not liable rule that a and the testimony republication others, unauthorized regarding ad- not have been Nine should Exhibit Nevertheless, of the extensive view mitted. regarding testimony already the arrest admitted insignificant and article, the error we find and the harmless. to allow the it was error also claims

Defendant testimony Helen Creek Public Librarian of Battle series of to the contents relative Emerson Exhibits in folders marked contained news articles of news These articles consisted Ten and Eleven. proceedings Enquirer pertaining to in the stories Michigan Appeals Su- and the in the Court of regarding preme trial the instant case. orally state to Emerson to court did not allow Emerson also testified article related. what each put and that on microfilm the articles were very finding difficult because the articles would be although the date. She stated one would need people many machine at the microfilm use requested library, these articles. no one had per- exclusively testimony almost Emerson’s relating judicial proceed- tained to news stories Enquirer. ings published by As stated ear- relating judicial proceedings lier, articles these proceedings” privileged stat- the "official under are testimony Therefore, should Emerson’s ute. given However, the extensive admitted. have been testimony given by plaintiffs previously witnesses 184 Opinion of the Court article, as to the impact original we find the error harmless.

x Defendant’s next claim is that the trial court erred when it failed to five give of defendant’s requested jury instructions. Plaintiff argues defendant object failed to the on record as re- 2.516(C). quired by Although MCR the record does disclose that defendant’s did counsel at object the instructions, conclusion the court’s rec- that, ord shows specifically prior its giving instructions, court spent and counsel some five six or hours in together going chambers over the instructions. At the conclusion of the in-chambers conference, the court observed because each instruction been had in thoroughly discussed chambers, parties both would pro- be "adequately by putting tected their requests evidence.” De- fendant’s then counsel offered Exhibit defendant’s h, which all contained of defendant’s requested instructions, Thus, and exhibit was received. find complied we defendant fully with MCR 2.516(C).

As to the merits of the instructions which the trial court rejected, we find as follows:

(1) Proceedings: Official Because "official proceedings privilege” apply, does not the trial properly give court refused to this instruction. (2) Clear Convincing Evidence: This pro- (Lansdowne posed instruction is based on law Ohio Co, Beacon Publishing v Journal 3d Ohio St 176; [1987]) adopted NE2d which "clear convincing” rejected standard by Supreme Court in its earlier review of this case. The trial in- properly give court refused to this struction. Rough Enquirer & News Opinion the Court

(3-4) Although Falsity: trial court Material prove the article must did instruct explain the "materially did not false,” the court problem "materiality.” meaning Given "charge” regarding published the words article by children,” believe we his "identified and clarifying helpful. have would been instruction offered defen- However, the instructions we find repetitive. long Therefore, find we too too dant give properly these in- refused court the trial structions.

(5) proof of a the absence Rumor: Given properly general re- rumor, this instruction jected the court.

XI by that of is raised defendant last issue The proofs argues do that Defendant remittitur. damages jury support as to of the the verdict not obligated that verdict to reduce that are we minimum.” "to a

A present any defendant did not first note that We testimony, witnesses, the issue or evidence on Closing argument damages. counsel cov- of defense transcript, only pages twenty-two with of trial ers paragraphs, twenty-five lines, dam- to devoted two argued ages. "I am confi- fact, In defense counsel going jury] you are not of the [members that dent an amount or decide to take into account to have damages damages at I discuss won’t request say length.” damage for a that He went on to by plaintiff’s "absurd” counsel award jury consider to even was not bound and that the plaintiff’s figures suggested by as the counsel Opinion of the Court proper Therefore, of damages. measure the evi- dence and arguments damages were essentially unrebutted.

B In remittitur, denying motion for trial judge found that "there was from evidence which the jury could return a substantial verdict should they believe the evidence.” He went on to note difficult, that it is if impossible, put a money lifetime, value on reputation, take "which does ordinarily, to establish and can certainly be de- stroyed quite defamation, quickly by the especially the nature of this one.”

In considering motion, judge acknowl- edged that both lawyers had taken the opportunity to argue However, strongly to the jury. he held there nothing was absolutely which would suggest the jury’s verdict was influenced passion or prejudice. He finding concluded the verdict supported by the evidence.

c We are agree constrained to with the judge trial who presided eight over of trial days this case. us, On the basis record before we are unwilling to invade province the jury calculating damages. Supreme most recent decision of our Hospital,

on this issue is Palenkas v Beaumont In Palenkas, (1989). 527; 443 NW2d 354 our Supreme Court established the standard which by a trial judge court must for remittitur. motion standard, Under that must the court consider: [Wjhether improper the verdict was result of Enquirer & News Eouch op Opinion the Coukt sympathy^ partiality, methods, passion, prejudice, fact; . . . whether of law or mistake corruption, or reason- limits of what was within the verdict compensation for the just deem minds would able actually sustained; . the amount . . whether injury in similar cases to awards comparable is awarded jurisdictions. in other [432 state and within Mich 532.] Palenkas, rejected the Court

In subjective used been test which had the conscience” "shock 2.611(E)(1). of MCE rule the remittitur apply a more provide is meant new standard The damage award of the jury’s evaluation objective trial judge. did not in this case judge the trial Although of the Palenkas when he have the benefit motion, his the remittitur the merits of decided of it. As prescience to reflect opinion almost seems verdict above, jury found that noted he improper of any not the result influence for which of injury sufficient evidence there was substantial could award minds reasonable addition, In compensation. as just amount judicial shock his did quite clearly award conscience. us, abuse of can find no record before we

On the reaching the deci- judge the trial discretion 432 Mich the motion for remittitur. deny sion to Co, Trunk WR 533; Hines v Grand App 151 Mich (1985); Jenkins v South- 585, 595; 391 NW2d Michigan Chapter, Cross, Red American eastern (1985). 798; 369 NW2d

D case, Supreme our review of this In its earlier plays action the defamation recognized Court society. in our free important role an 19 Dissent G.S. J. Allen, Seegmiller approval quoted Inc, KSL, from v with 1981): (Utah, P2d of an individu- recognize integrity [W]e standing reputation his in soci- al’s is essential to family. may It vocation, in ety, in his and even his indispensable to one’s sense of self- indeed be being dignity virtually every of human worth. upon right to as the depends part his be known recog- person truly he is. For centuries it has been upon person’s character nized that an assault damaging long-lasting and than may be far more person. Indeed, an assault on his from freedom personality may on one’s viewed false attacks as at least as essential dom from be liberty to as free- ordered physical abuse.” [427 194.] damage plaintiffs testimony about to There was reputation family, friends, as it related to his Plaintiff about the effect the co-workers. article had on his testified

activities, it him how made feel noted, it and how affected his children. As damages to Defense evidence as counsel took a calculated risk in unrebutted.

presenting his jury side of the case to the exclu- client’s almost sively liability It on the issue. is a risk that apparently backfired. properly

The motion for remittitur was denied jury verdict of the should stand as en- tered.

Affirmed.

Murphy, P.J., concurred. (dissenting). respectfully Allen,

G. S. J. I dis- agree my colleagues’ I am sent. unable to with appeal. resolution not the first issue raised on I do agree has carried the burden proof Enquirer in the article statements plaintiffs Contrary were false. to counsel’s re- & News Rouch Allen, S. J. G. Dissent my jury arguments peated col- question leagues’ conclusion, does the article committing as- the sexual accuse plaintiff’s account Instead, it is news sault. up leading why suspect the facts as a and arrest suspect. plaintiff was a investigation crime is of a an that

A statement underway the of an accusa- not rise to level does investigated being person committed that tion the App Schaeffer, 122 Mich Cf. Jones v the crime. (1982). 301, 305; 423 332 NW2d majority is the most the from Omitted story part important headline. In of the news —its type reads: the headline boldface suspect baby-sitter Police arrest assault[.] captures a which first It is this boldfaced headline plaintiff It does state reader’s attention. true, It states what was committed the assault. namely suspect. and was a arrested was body proceeds then to recite The of article probable establishing the details cause make Comparison of forth in the arrest. those details set printed police reports story of with the content introduced as defendant’s Exhibits a, into evidence township testimony c d, b, except at minor officers misstatement of fact word trial discloses one arguable use "charged,” printed every statement story error the statement true. minor by was identified children rather his by than his ex-wife’s Minor inaccuracies children. falsity. gist, sting, "If the do not constitute the article is substantially true, is the defendant not liable.” Rouch v Creek, & News Battle App Michigan, 39, 43, 2; 137 n 357 Mich App 50 184 19 Mich G.S. J. Allen, Dissent (1984). Slight 794 NW2d inaccuracies will not provided false, make an otherwise accurate article inaccuracy gist way in no alters the Inc, Press, article. Fisher v Detroit Free (1987), App 409, 414; 404 765 lv 428 NW2d den (1987), 914 Mich (1987). den 429 Mich 882 reconsideration Evening Ass’n, See also Kurz v The News App (1990); 182 737; Mich NW2d Mc Evening App Ass’n, 32, Cracken v News Mich (1966); Argus-Press 40; Co, 141 NW2d 694 Orr v (CA 1978), 1108, 6, 586 F2d 1112-1113 cert den 440 (1979). 960; 1502; US 99 S Ct 59 L Ed 2d 773 legal substantially an Whether question. article is true is a my Rouch, n 2. In opinion the statement that defendant was identi fied his children rather than his ex-wife’s chil any dren is a minor error which is not false in respect. material greater

Of concern is the use of the word "charged.” appears The word in three times plaintiff formally It article. is true that was never charged in the sense that a written warrant testimony true, issued. But it is also and the at indisputably discloses, trial that after the officers interviewed the victim who identified as by assailant, officers, was arrested handcuffed, and was taken to the station charges where he was booked on of criminal sex- degree ual conduct in the first and felonious as- sault. Defendant’s Exhibit incident a uniform standard A,

report by Township used the Bedford Department, Police sets forth details of following: incident and contains the Disposition: Prosecutor Pattison was beeifed [sic] the complaint on ding and the circumstances surroud- suspect. lodge the arrest of He advised to [sic] suspect suspect on CSClst. The was trans- Rouch v & News G.S. J. Allen, Dissent ported jail by Sgt to Calhoun Co Owens and was charge. on report booked shall submit- be review, prosecutor ted to the date. The deposition Bell, John Chief Police of Township Bedford from 1972 until his retirement confirms the facts set forth in the incident report: Q. Counsel Prosecutor Patti- [Defense Bernius]:

son was advised as to what the officers had found witnesses, and heard from the isn’t that correct? A. Yes. [Bell\:

Q. And what office did Pattison work for?

A. County Calhoun Prosecutor.

Q. youDo recall his full name?

A. INo. don’t.

Q. Okay. And Prosecutor Pattison authorized Mr. Rouch to be charge arrested on a of criminal conduct, sexual degree, first isn’t that correct?

A. Yes. Given facts, the above uncontroverted I fail comprehend why the statements that defendant "was charged” and that charge against "the Rouch was authorized Friday by the Calhoun County Prosecutor’s Office” were if false. one nar- Only rowly construes the word "charged” to mean a formal warrant issued the prosecutor’s office are the statements false. But if one construes "charged” popular its and generally accepted usage meaning "accused,” then the statements are accurate.

Webster’s II New Riverside University Dictio- nary defines the word "charge” as follows: "[T]o make an against: accusation accuse.” Undeniably, plaintiff was "accused” by prosecutor the or the arresting officers of suspected criminal sexual con- trial, duct. At plaintiff himself used the word App 184 Allen, Dissent G. S. J. accepted "charge” popular generally in its sense: you did tell Q. Counsel What [Plaintiff’s Jereck]: you willing to talk to the

the Chief? Were what this was about or not? about Yes, charge A. I asked him what the [Rouch]: was he told me it was a sexual assault on child—that’s what he told me. rate, any you,

Q. Okay. they At after talked to they what do with you? did know, you me I the They A. told that was— charge being charged I they that was with. —that [Emphasis supplied.] recognized "charge” dual connotation Supreme upon Court review of Michigan Rouch, this Court’s supra. Rouch,

In 137 Mich our Court stated: crime, Although plaintiff was arrested for the he charged.2 was never itself, By particular inaccuracy If this is not libelous. true, sting, gist, substantially of the article is defendant context, sting is not liable. ... In this limited is the fact of reading public, To most of the fact of arrest. additional

being formally charged by prosecutor little. The fact adds rape underly he not commit the none did that true, however, ing story facts are defeats the defense substantially [Emphasis that the article was true. added.] appeal On our Court declined to rule Supreme charged.” was "never Instead the "never formally stated charged with the crime.” Rouch v & Creek, 157, 160; Battle News of Rouch v & News G.S. J. Allen, Dissent (1987). (1986), NW2d 245 reh den 428 Mich 1207 In stating, clearly recognized so the Court the distinc- generally accepted tion between use of the legalistic technical, word "accused” and its mean- ing. significantly, by remanding

More the case to the "plaintiffs trial court with the admonition that bring who choose to in actions libel on the basis of reports prove such must ñrst that the statements implicitly, false,” were id. at the Court if not explicitly, rejected the in statement footnote 2 of underlying our in Rouch that none of the facts were true and thus the defense that substantially article was true defeated. Had Supreme believed the use of the "charged” falsity, word in itself constituted a there would be no reason to remand for trial on the falsity. issue of the article’s my opinion plaintiff permitted

In should not be upon testifying "charge” to use the word it is customarily popularly ap- understood, but on peal employ legalis- the word in its narrow and meaning my tic of issuance of a formal warrant. In opinion newspapers should not be held to technical legal language. they Instead, should be held to the they customarily popu- use of words as are larly Clearly, although plaintiff used.

formally charged, he was accused of a sexual night question. offense on the The news article light, single so stated. Viewed in this there is not a except article, statement the reference to plaintiff’s identification children rather than children, his ex-wife’s is not which true. There by plaintiff, being falsity no material established judgment should be reversed and the case dismissed.

Case Details

Case Name: Rouch v. Enquirer & News of Battle Creek

Court Name: Michigan Court of Appeals

Date Published: Jun 4, 1990

Citation: 457 N.W.2d 74

Docket Number: Docket 108595

Court Abbreviation: Mich. Ct. App.