# Richard Bichler v. Union Bank and Trust Company of Grand Rapids

> Court of Appeals for the Sixth Circuit · October 30, 1984 · 745 F.2d 1006

URL: https://www.frixlaw.com/law-library/cases/9472718

## Case

- **Full name:** Richard BICHLER, Plaintiff-Appellant, v. UNION BANK AND TRUST COMPANY OF GRAND RAPIDS, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** October 30, 1984
- **Citations:** 745 F.2d 1006
- **Precedential status:** Published
- **Opinion:** Concurring in part by Keith
- **Judges:** Lively, Edwards, Engel, Keith, Merritt, Martin, Jones, Contie, Krupansky, Wellford, Weick
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472718

## How later opinions describe it (automated extraction)

- holding that Rule 56 applies even when a person’s mental state is at issue, a question reserved for the jury under state law
- applying Rule 56 in a diversity case where the law of Michigan required issue of actor's mental state to be submitted to a jury
- applying Michigan law and the qualified privilege to pre-elude right-of-privacy claim
- applying Michigan law and the qualified privilege to preclude right-of-privacy claim

## Opinion text

KEITH, Circuit Judge,
with whom GEORGE CLIFTON EDWARDS, Jr., Circuit Judge, joins, concurring in part and dissenting in part.
I concur in the result reached by the majority. However, I cannot join in that part of the opinion which disapproves of language set forth in Clark v. American Broadcasting Companies, Inc., 684 F.2d 1208, 1216 (6th Cir.1982), cert, denied, 460 U.S. 1040 , 103 S.Ct. 1433 , 75 L.Ed.2d 792 (1983).
A panel of this Court in Clark stated, “the qualified privilege does not extend, however, to plaintiffs who are not the fo *1017 cus of the alleged public interest publication.” 684 F.2d at 1216 . The majority would have us believe that this requirement has no basis in Michigan law. To the contrary, a majority of the panel in Clark specifically relied upon the Michigan Supreme Court’s opinions in Bowerman v. Detroit Free Press, 287 Mich. 443 , 283 N.W. 642 (1939) and Timmis v. Bennett, 352 Mich. 355 , 89 N.W.2d 748 (1958) in support of a “focus” requirement. In Timmis , the Michigan Supreme Court held, in effect, that in order for a qualified privilege to apply, the alleged defamatory statement must be limited in its scope to that which is in the public interest. 352 Mich. at 369 , 89 N.W.2d at 755 . This holding was an elaboration on what the court had said two decades earlier in Bowerman . The defendant in Bowerman published a newspaper article concerning a judicial proceeding. The article was inaccurate, and contained libelous language. Nevertheless, the defendant argued that there was a qualified privilege to report on judicial proceedings. The court first recognized that the “extrinsic circumstances in the instant case are that defendant’s newspaper was reporting a judicial proceeding which created a qualified privilege.” 287 Mich. at 447 , 283 N.W. at 644 . The Bowerman court then held that the newspaper article was not within the scope of the qualified privilege.
A requirement that the privilege apply only to individuals who are the focus of the publication, clearly falls within the parameters of the language set forth in Timmis and Bowerman . Focus is simply another way of stating there must be a reasonable relationship between the controversy and the individual for the privilege to apply. Indeed the majority concedes there is a need to establish, in some fashion, this relationship. “There must be some connection [between the defamatory material and the public interest publication], and courts have expressed this requirement in different ways.” Maj.op. at 1012. As an example the majority refers to Gertz v. Robert Welch, Inc., 418 U.S. 323 , 94 S.Ct. 2997 , 41 L.Ed.2d 789 (1974). In Gertz , the Seventh Circuit found that accusations against the plaintiff set forth in an article were “integral to the central thesis of the article” and, therefore, the privilege applied. Gertz v. Robert Welch, Inc., 471 F.2d 801, 806 (7th Cir.1972), cert, denied, 459 U.S. 1226 , 103 S.Ct. 1233 , 75 L.Ed.2d 467 (1983). The Supreme Court upheld this analysis. Gertz, 418 U.S. at 331 n. 4, 94 S.Ct. at 3002 n. 4. To my way of thinking, “integral to the central thesis” is not so distinguishable from “focus” as to warrant this Court’s disapproval. These are only two of what would seem to be many ways for expressing the need to establish a relationship between the controversy and the privilege.
Because of the majority’s insistence upon challenging this portion of Clark , I cannot join in the majority opinion.
It is so ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472718. Public record. Not legal advice.