# Petition for Writ of Certiorari — Locricchio v. Evening News Ass'n

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 907

## Text

oe

Gl-Lise FILED
JAN 13 1992

No. OFFICE_OF_THE CLERK

Iu Che
Supreme Court of the Hnited States

October Cerm, 1991

we

JOSEPH J. LOCRICCHIO AND GARY FRANCELL,

avo Petitioners,

THE EVENING NEws ASSOCIATION, INC.,
MICHAEL F. WENDLAND AND JEAN GADOMSKI,

Respondents.

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF MICHIGAN

—————————

- AND APPENDIX -

JEREMIAH J. KENNEY
Counsel of Record

PAMELA HOBBS

KITCH, SAURBIER, DRUTCHAS,
WAGNER & KENNEY, PC.

Tenth Floor

One Woodward Avenue

Detroit, Michigan 48226

(313) 965-7411

Attorneys for Petitioner

Interstate Brief & Record Company, a division of North American Graphics, Inc.
1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230

Supreme Court, U.S.

i
QUESTIONS PRESENTED

WHETHER THE FIRST AND FOURTEENTH AMENDMENTS TO
THE UNITED STATES CONSTITUTION REQUIRE A STATE
APPELLATE COURT TO CONDUCT AN INDEPENDENT APPEL-
LATE REVIEW OF THE EVIDENCE OF FALSITY IN A PRIVATE-
FIGURE LIBEL ACTION AGAINST A MEDIA DEFENDANT AND
ALLEGED TO INVOLVE MATTERS OF PUBLIC CONCERN.

II.

WHETHER A STATE SUPREME COURT'S DETERMINATION
THAT ALLEGEDLY LIBELOUS SPEECH IS RHETORICAL HYPER-
BOLE PROTECTED BY THE FIRST AND FOURTEENTH AMEND-
MENTS TO THE UNITED STATES CONSTITUTION, SO AS TO
DEPRIVE PRIVATE-FIGURE LIBEL CLAIMANTS OF A BASIS FOR
RECOVERY, REQUIRES INDEPENDENT APPELLATE REVIEW BY
THIS COURT.

ii
LIST OF PARTIES

The parties to the proceeding below were the peti-
tioners Joseph J. Locricchio and Gary Francell and the
respondents The Evening News Association, Inc.,
Michael F Wendland and Jean Gadomski. Additional
defendants Pete Waldmeir and Bill Giles were defend-
ants through trial, at which time a motion for directed
verdict was entered in their favor; accordingly, they are
not named as parties herein.

TABLE OF CONTENTS

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CONSTITUTIONAL PROVISIONS INVOLVED .................
INTRODUCTION —- SUMMARY OF ARGUMENT ............
STATEMENT OF THE CASE:

l. JOSEPH J. LOCRICCHIO, GARY FRANCELL AND
PINE KNOB

ll. THE DETROIT NEWS’ “INVESTIGATION” OF PINE

ae a oo ve cand susvivas aa dhexkuksstniss viacens
a eee Pere, Warecees EUMRY ARTICLES. ........cccccccccccces
SE EMORIEIRS MURS EG IED | siccusissscccansasancerscacossnessccaensece
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C. Post-Trial Proceedings in the Trial Court ..

D. Proceedings in the Court of Appeals of

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E. Proceedings in the Supreme Court of

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REASONS FOR GRANTING THE WRIT:

| THE FIRST AMENDMENT DOES NOT MANDATE
INDEPENDENT APPELLATE REVIEW OF THE PURELY
FACTUAL ISSUE OF FALSITY IN A PUBLIC-INTEREST
LIBEL ACTION.

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iv
Page
A. Independent Appellate Review Is Applic-
able To Issues Of Law, Not Fact. ...........00.... 16

B. In Mandating Independent Appellate
Review Of The Issue Of Falsity, The
Michigan Supreme Court Misinterpreted
And Misapplied This Court's Decision In
Philadelphia Newspapers v. Hepps._ ..............+. 18

C. The Right To Trial By Jury Prohibits
Appellate Inquiry Into A Jury’s Factual
SE IIL. scscentexecspassaeetautonanstieersiamennconniee 20

ll. THE DECISION OF THE MICHIGAN SUPREME
COURT CONFLICTS WITH THE DECISIONS OF

OTHER FEDERAL AND STATE APPELLATE COURTS. 25
ll. INDEPENDENT APPELLATE REVIEW OF THE
MICHIGAN SUPREME COURT’S DETERMINATIONS
AS TO THE DEFAMATORY MEANING OF THE
ARTICLES IS CONSTITUTIONALLY MANDATED. ......... 26
RM MEIET a sccisatibnsestacudibericniciaaibnia nARaisivcies Solcchieoas einceesioaes 27
APPENDIX:
DECISION SOUGHT TO BE REVIEWED: OPINION of
the Michigan Supreme Court, 8/26/91 .................. A-]
TRANSCRIPT OF HEARING ON MOTION-FOR SUM-
MARY JUDGMENT - Wayne County, Michigan,
SE SN, MPI PME esicstcanthenaksciteispadincatcresaccsie. A-67
ORDER DENYING SUMMARY JUDGMENT - Wayne
County, Michigan, Circuit Court, 4/6/82 ............. A-77
ORDER DENYING MOTION TO CERTIFY QUESTION
FOR APPEAL — Wayne County, Michigan, Cir-
Se Ss EE ace dcainttae ncaa. A-78

Se

Page
ORDER GRANTING INTERLOCUTORY APPLICATION
FOR LEAVE TO APPEAL - Michigan Court of
Py SI Giibitcetind nate ees A-79
PER CURIAM OPINION [UNPI BLISHED) - Michigan
Court af Apgent, G24) oi A-80)
ORDER DENYING REHEARING - Michigan Court of
PPR TT IBS Siiccheekcdincce oe ae A-84
ORDER DENYING LEAVE TO APPEAL - Michigan
EOS COANE, AIS TIE oinsinecscascikecsrdeestbcsidcces A-85
ORDER DENYING RECONSIDERATION OF DENIAL OF
LEAVE TO APPEAL - Michigan Supreme Court,
REE scitshiscaimnntan cdo oes eee A-86
NOTIFICATION DENYING WRIT OF CERTIORARI —
United States Supreme Court, 11/13/84 .............. A-87
OPINION GRANTING DIRECTED VERDICT —- Wayne
County, Michigan, Circuit Court, issued 12/11/86 A-88
ORDER GRANTING DIRECTED VERDICT - Wayne
County, Michigan, Circuit Court, 1/5/87 ............ A-11]
PER CURIAM OPINION [UNPL BLISHED} REINSTATING
JURY VERDICT — Michigan Court of Appeals.
2/24/89
ORDER DENYING REHEARING OF 2/24/89 DECISION -
Michigan Court of Appeals, 5/22/89 o.....0.0.000..... A-12]
ORDER OF JUDGMENT ON JURY VERDICT —- Wayne
County, Michigan, Circuit Court, 8/4/89 ........... A-122

ORDER DENYING REHEARING OF 8/26/91 DECISION —

Michigan Supreme Court, 10/17/91 .................... A-124
EXCERPTED TRIAL TRANSCRIPT .....0...ccccccccccecceeeeeeees. A-125
Wau 0 PMID citi drat cedice wae nce eee A-192

vi
TABLE OF AUTHORITIES

Page
Cases:
Anderson v. Liberty Lobby, Inc., 477 US. 242 (1986) 23

Bose Corp. v. Consumers Union of United States,

rec, SR UR Se Cee tishtcercaianoes 15, 16, 17, 24
Caldwell v. Fox, 394 Mich. 401; 231 NW.2d 46

(SRE OED - The jury found no publication as to the claims
of petitioner Joseph Locricchio.

C. Post-Trial Proceedings in the Trial Court

On December 11, 1986, Judge Connor issued his
written opinion directing a verdict in favor of respon-
dents, holding that “liability [for libel] cannot be

4 The trial court ruled that petitioners were not public figures,

but that the articles concerned matters of public interest. At that
time, Michigan’s public-interest qualified privilege required the
plaintiff in a public-interest libel case to prove actual malice. This
rule was abrogated in 1986, in Rouch vy. Enquirer © News, 427 Mich.
157; 298 N.W.2d 245, and a negligence standard was substituted.
° The jury completed a separate verdict form, containing ten
interrogatories, foreach plaintiff (App., pp. A-192-A-195). The jury
answered the first four questions on Fraacell’s verdict form as
follows:

1. Did the defendants make the statement of fact com-
plained of to a third person by printing, writing and, or
pictures? YES.

2. Was the statement false in some material respect and
did the statement have a tendency to harm the plain-
tiff’s reputation? YES.

3. Was the statement of and concerning the plain-
tiff? YES.

4. Did the defendants have knowledge that the statement

was false or did defendants act with reckless disregard
as to whether the statement was false? YES.

1]

imposed for journalistic inferences allegedly arising
from the reporting of true facts about matters of public
interest and concern” (App., p. A-89). The opinion enu-
merated Judge Connor’s findings of fact as to what he
believed petitioners had not proven to be false at trial
(App., pp. A-108-A-110).

D. Proceedings in the Court of Appeals of Michigan

Petitioners timely filed their claim of appeal in the
Court of Appeals of Michigan. On February 24, 1989, the
court issued its unanimous, unpublished per curiam
opinion, reversing Judge Connor's decision and re-
instating the jury’s verdicts (App., pp. A-112-A-120). The
court grounded its decision upon the doctrine of the
law of the case, noting that it had rejected respondents’
arguments regarding the viability of an action for libel
by implication in its interlocutory opinion in this case,
and stating that “we do not believe that the United
States Supreme Court’s decision in Philadelphia News-
papers, Inc v. Hepps ... bars a suit for defamation by
implication” (App., p. A-119).6 Defendants’ motion for re-
hearing was denied.

E. Proceedings in the Supreme Court of Michigan

Respondents’ application for leave to appeal was
granted by the Supreme Court of Michigan. Thereafter,
on August 26, 1991, the Supreme Court, in a divided
opinion, reversed the ruling of the Court of Appeals and
nullified the jury’s verdict.

The four-justice majority held that in a private-figure,
public-interest libel action involving a media defendant,

Respondents had argued that this Court’s use of the term
“the statement at issue” in Hepps requires a plaintiff to prove a
false statement, as opposed to an inference of implication, in order
to recover for libel.

12

a reviewing court has a constitutional duty to conduct
an independent examination of the record to determine
whether the plaintiff has carried his burden of proving
falsity (App., pp. A-22-A-26). The court based its
holding upon this Court’s decision in Philadelphia News-
papers, Inc. v. Hepps, 475 U.S. 767 (1986), stating that
“the Court in Hepps created an issue of constitutional
fact regarding whether a plaintiff carries the burden of
proving falsity” and that independent appellate review
of the issue of falsity in public-interest cases is “a log-
ical corollary to independent review of actual malice”
(App., p. A-26).

The majority then proceeded to review the record as
to both defamatory meaning and falsity, concluding that
“the record does not reveal that the plaintiffs proved
any material falsity by even a preponderance of the evi-
dence” (App., p. A-36). While agreeing that the implica-
tions contained in the articles could support an action
for libel,’ the court found that petitioners had failed to
prove the falsity of the central implication of the arti-
cles — that petitioners were members or associates of
organized crime (App., pp. A-43-A-44). The court dis-
carded without comment the standard of review appli-
cable to directed verdicts under Michigan law, which
requires the court to view the evidence in the light
most favorable to the non-movant,® substituting a stan-
dard in which the reviewing court reweighs the evidence
to determine whether the record contains the neces-
sary quantum of proof of falsity (App., pp. A-26-A-27).

7 The court stated that “we do not, and need not, disagree in
theory with the conclusion ... that a cause of action for libel by
implication might succeed without a direct showing of false state-
ments” (App., p. A-36, n. 32).

8 Caldwell v. Fox, 394 Mich. 401, 407; 231 N.W.2d 46 (1975).

13

Having thus defined the scope of its self-imposed mis-
sion of independent review, the majority felt free to dis-
regard petitioners’ trial testimony respecting the falsity
of the articles, which is not even referred to in the
court's factual summary (App., pp. A-13-A-18). In addi-
tion, although conceding that the evidence showed that
the statements contained in the headlines “Partners
stalked by Mafia-hunters” and “Mafia-hunters stalk
Locricchio, Francell” were false, the majority dismissed
these statements as “rhetorical hyperbole” protected by
the First Amendment (App., p. A-45). The majority then
disposed of the “troubling” photograph of Harvey
Leach’s car and its grossly misleading headline with the
statement, “the articles must be construed as a whole,
and the article later pointed out that intensive investiga-
tions by law enforcement agencies failed to link the
plaintiffs to the Leach (or Brush) murders” (App., p. A-45).

In a lengthy opinion concurring in the result only?
Chief Justice Cavanagh rejected the majority's holding
that the factual issue of falsity is subject to independent
appellate review as a question of “constitutional fact.”
pointing out that the majority's analysis “blurs the dis-
tinction between the defamation plaintiffs’ acknow-
ledged constitutional burden of proving falsity, and the
nature of the issue of falsity itself” (App., p. A-48,
Cavanagh, C.J., concurring; emphasis in original).

Justice Cavanagh noted that the fact that consti-
tutional principles require a party to bear the burden of
proof at trial does not itself give rise to a requirement
of independent appellate review, citing the consti-
tutional requirement in criminal cases of proof beyond

9 The concurrence concluded “that a defamation defendant
cannot be held liable for the reader’s possible inferences, specula-
tions, or conclusions, where the defendant has not made or directly
implied any provably false factual assertion” (App., p. A-57,
Cavanagh, C.J., concurring).

14

a reasonable doubt, which has never been thought to
require appellate courts to independently review the
underlying factual issue of guilt (App., pp. A-48-A-49).
He then concluded that the majority erred in analo-
gizing the issue of falsity to that of actual malice, since
actual malice is a mixed question of fact and law, while
falsity “would appear to be a classic issue of pure his-
torical fact” (App., p. A-49). Justice Cavanagh appeared
troubled by the fact that the majority’s independent
review of falsity, “to have any real meaning,
would necessarily have to apply even to credibility
issues, a province traditionally reserved most jealously
for the jury as trier of fact” (App., p. A-50, n. 2).

Justice Levin dissented “because there was sufficient
evidence for submission to the jury that the Detroit
News falsely implied that Locricchio and Francell were
members or associates of organized crime” (App., p. A-
99, Levin, J., dissenting).

Petitioners’ motion for rehearing was summarily
denied by Order dated October 17, 1991.

15

REASONS FOR GRANTING THE WRIT

THE FIRST AMENDMENT DOES NOT MANDATE
INDEPENDENT APPELLATE REVIEW OF THE
PURELY FACTUAL ISSUE OF FALSITY IN
A PUBLIC-INTEREST LIBEL ACTION.

Although the First Amendment’s guarantees of
freedom of expression are stated in unconditional lan-
guage, there are categories of communications to which
those guarantees do not extend, because they form “‘no
essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any bene-
fit that may be derived from them is clearly outweighed
by the social interest in order and morality.” Bose Corp.
v. Consumers Union of United States, Inc., 466 U.S. 485,
904 (1984). Libelous speech has been held to be one
such category. /d. Yet, because of the tension that nec-
essarily exists between freedom of expression and the
important state4nterest in redressing wrongful injury to
reputation, this Court has extended a measure of
“strategic protection’ to defamatory utterances. Gertz v.
Robert Welch, Inc., 418 U.S. 323, 342 (1974).

In New York Times Co. v. Sullivan, 276 US. 254 (1964),
this Court held that the First Amendment prohibits a
public official from recovering damages for a defama-
tory falsehood relating to his official conduct unless he
proves that the statement was made with “actual
malice.” In so doing, this Court also imposed upon itself
a duty, “in proper cases,” to conduct an independent
examination of the whole record to ensure that the
judgment does not constitute “a forbidden intrusion
upon the field of free expression.” /d. at 285.

16

A. Independent Appellate Review Is Applicable To
Issues Of Constitutional Law, Not Fact.

The term “independent appellate review” refers to
the Court’s duty to independently evaluate the record
to determine whether a constitutional rule was properly
applied in the lower courts. See Bose Corp. v. Consumers
Union of United States, Inc., supra at 499-501; Harte-Hanks
Communications, Inc. v. Connaughton, 491 US. 657, 688-
689 (1989). However, not every case which involves the
application of a constitutionally-required legal standard
mandates independent appellate review: It comes into
play only in marginal cases, where the court is required
to determine the scope of the constitutional formula at
issue, because the particular facts present a question as
to whether the defendant's conduct falls within the
outer limits of the rule. Bose Corp. v. Consumers Union
of United States, Inc., supra at 503, n. 21.

The concept of independent appellate review has
been regularly applied by this Court to cases in which
the states have sought to impose liability on the basis
of particular forms of expression. See Hess v. Indiana,
414 US. 105, 108-109 (1973) (incitement to riot); Kois v.
Wisconsin, 408 US. 229 (1972) (obscenity); Street v. New
York, 394 US. 576 (1969) (“fighting words”); Pennekamp
v. Florida, 328 U.S. 331 (1946) (contempt of court). In
libel actions, independent appellate review has been
applied to the issue of whether the defendant's state-
ment was capable of bearing a defamatory meaning,
Milkovich v. Lorain Journal Co., 497 U.S. —-; 111 L. Ed.
2d 1 (1990); Letter Carriers v. Austin, 418 U.S. 264 (1974);
Greenbelt Cooperative Publishing Assn., Inc. v. Bresler,
398 US. 6 (1970); and whether the plaintiff pre-
sented constitutionally-sufficient evidence of actual
malice at trial, Harte-Hanks Communications, Inc. v.
Connaughton, supra; New York Times Co. v. Sullivan,

| acacia ita i

17

supra."° The common thread running through these
cases is that each involves the application of a defini-
tion deemed to be constitutionally mandated, thus
fixing the category of unprotected speech within sub-
stantive constitutional limitations which create an issue
of “constitutional fact.” Jenkins v. Georgia, 418 U.S 153,
160 (1974). The question of law invoking the duty of
independent appellate review is whether these consti-
tutionally fixed perimeters have been breached.

The “falsity” of an allegedly libelous statement is not
such an issue, because this Court has fashioned no consti-
tutional definition of falsity to which the doctrine of inde-
pendent appellate review arguably might attach. On the
contrary, in Masson v. New Yorker Magazine, Inc., 501
US. —; 115 L. Ed. 2d 447, 472 (1991), this Court declined
the defendants’ invitation to create such a consti-
tutional rule. Instead, Masson held that the common-law
definition of falsity is applicable to such cases, and rec-
ognized that the falsity vel non of allegedly libelous
statements is an issue of fact. /d. at 475.

Moreover, since publication by the media appears
to create a presumption that the material is “of pub-
lic concern,” the duty of independent appellate
review imposed by the Michigan Supreme Court in
theory extends to every jury verdict in every libel
action involving a media defendant. This Court has
never endorsed such a policy. Indeed, in Gertz v.
Robert Welch, Inc., supra at 343, the Court stated that
“this approach would lead to unpredictable results and
uncertain expectations, and it could render our duty to
supervise the lower courts unmanageable.” Accordingly,
this Court found the formulation of broad rules of gen-

10 However, see Bose Corp. v. Consumers Union of United States,
Inc., supra at 517, n. 1 (Rehnquist, J., dissenting).

18

eral application preferable to an “ad hoc resolution of
the competing interests at stake in each particular
case.” /d.

The rule stated in Philadelphia Newspapers, Inc. v.
Hepps, 475 US. 767 (1986) adequately protects the con-
stitutional interests at stake without the unnecessary
burden of independent appellate scrutiny of the jury’s
finding of falsity. Where a properly instructed jury,
placing the burden of proving falsity upon the plaintiff
(and thus resolving any doubts in the defendant's
favor), has found the defendant's statements to be false,
any constitutionally-inspired solicitude for the defen-
dant’s speech should vanish, since there is no consti-
tutional value in false statements of fact, and the public
interest is not served by the dissemination of false and
defamatory information. See e.g. Keeton v. Hustler Maga-
zine, Inc., 465 US. 770, 776 (1984) (“False statements of
fact harm both the subject of the falsehood and the
readers of the statement”).

B. In Mandating Independent Appellate Review Of
The Issue Of Falsity, The Michigan Supreme Court
Misinterpreted And Misapplied This Court's
Decision In Philadelphia Newspapers, Inc. v.
Hepps.

The Michigan Supreme Court has acknowledged that
this Court’s decisions in New York Times, Bose and
Connaughton provide no direct support for its conclu-
sion that independent appellate review of a jury's find-
ings as to falsity is constitutionally required;
nonetheless, the court held that this Court’s decision in
Philadelphia Newspapers, Inc. v. Hepps, supra, mandates
this result. The court interprets Hepps as forming the
springboard for a “logical extension” of the principle of
independent appellate review to encompass appellate
scrutiny of the factual determinations of a jury as to

19

the truth or falsity of the defendant's statements. This
reading of Hepps reveals a fundamental misunder-
standing of that decision as it relates to libel by
implication.

In Hepps, a majority of this Court concluded that the
First Amendment requires a rule that the plaintiff bear
the burden of proving falsity in a libel action against a
media defendant, where defendant's publication
involves a matter of “public concern.” However. nothing
in Hepps suggests that, in imposing this rule, this Court
intended to trigger independent appellate review of the
jury's factual determination of truth or falsity. Indeed, in
Milkovich v. Lorain Journal Co., supra, this Court recently
elucidated the application of the rule stated in Hepps to
actions involving libel by implication, and concluded
that the /ega/ question arising in this context is whether
defendant's statements imply an assertion of objective
fact that is capable of being proven true or false — not
whether falsity was proven to the appellate court's
Satisfaction.

In Milkovich, this Court repudiated the so-called Gertz
“opinion privilege,” noting that an expression of opinion
frequently implies the assertian of an objective fact.
The Court held that freedom of expression is ade-
quately secured by existing constitutional doctrine
without the creation of an artificial dichotomy between
“opinion” and fact, explaining, “[WJe think Hepps stands
for the proposition that a statement on matters of
public concern must be provable as false before there
can be liability under state defamation law, at least ...
where a media defendant is involved.” /d. at 18
(emphasis added).

Hepps ensures full constitutional protection for state-
ments having no provably false factual connotations.
while leaving unprotected statements which imply false

20

and defamatory facts. Thus in actions alleging libel by
implication, the dispositive legal question is whether a
reasonable fact-finder could conclude that the defend-
ant’s statement implied a defamatory factual assertion;
if so, the issue of falsity is for the jury. /d. at 19.

C. The Right To Trial By Jury Prohibits Appellate
Inquiry Into A Jury’s Factual Determinations.

The Seventh Amendment provides that “no fact tried
by a jury shall be otherwise re-examined in any Court
of the United States, than according to the rules of the
common law.” This Court has held that the Seventh
Amendment is not binding upon the states.’ Walker v.
Sauvinet, 92 US. 90, 92-93 (1876). Happily, however, con-
stitutional questions are always open. Gideon v. Wain-
wright, 372 US. 335, 346 (1963) (Douglas, J., concurring).
This case, which pits the rights of the media to dissemi-
nate information against the rights of individual citizens
harmed by the abuse of those rights, is a particularly
appropriate vehicle for the reconsideration of this
important constitutional question.

The Founders of our Nation considered the right to
trial by jury in civil cases to be an important bulwark
against tyranny and corruption, a safeguard too pre-
cious to be left to the whim of the sovereign or, for that
matter, to that of the judiciary. Parklane Hosiery Co.,
Inc. v. Shore, 439 US. 322, 343 (1979) (Rehnquist, J., dis-
senting). Those who favored juries believed that a jury
would reach a result that a judge either could not or

I Regardless of the applicability of the provisions of the Sev-

enth Amendment to this state-court proceeding, the analogous pro-
visions of the Michigan Constitution forbid the Michigan Supreme
Court to pass upon questions of fact. Mich. Const. 1963, Art. 1,
§ 14; Peoples Wayne County Bank vy. Wolverine Box Co., 250 Mich. 273,
278-280; 230 N.W. 170 (1930); Whitson vy. Whitely Poultry Co., 11
Mich. App. 598; 162 N.W.2d 102 (1968).

21

would not reach.” /d. at 344. Thus because the “‘[m]ain-
tenance of the jury as a fact-finding body is of such
importance ... any seeming curtailment of the right to
a jury trial should be scrutinized with the utmost
care.” Dimick v. Schiedt, 293 U.S. 474, 486 (1935).

Despite its central role in the formation of our gov-
ernment, this Court has held that the right to a jury
trial in civil cases is not among the requirements of due
process. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
However, in view of our heritage and the history of the
adoption of the Constitution and the Bill of Rights, it
seems peculiarly anomalous to maintain that trial by an
independent jury selected from the common citizenry
is not a fundamental right. Reid v. Covert, 354 US. 1, 9
(1956). Petitioners submit that the finality of a jury’s fac-
tual determinations is a central element of the right to
trial by jury, which remains one of the most effective
barriers to arbitrary governmental action. /d. at 10. As
such, it is one of those fundamental rights which the
due process clause of the Fourteenth Amendment
makes binding upon the states.

Yet petitioners do not rely solely upon the funda-
mental nature of this constitutional right; rather, peti-
tioners would have this Court evaluate the decision of
the Michigan Supreme Court in light of the competing

12 This belief appears to have been well founded. A review of

all 208 published opinions in which a federal appellate court
resolved one or more challenges to the sufficiency of the evidence
to support a jury verdict during the period between October, 1984
and October, 1985, revealed an overall reversal rate of 49.0%. More-
over, jury verdicts in favor of plaintiffs were reversed in 52.5% of
the cases reviewed, while the reversal rate for defense verdicts was
only 23%. Schnapper, “Judges Against Juries — Appellate Review of
Federal Civil Jury Verdicts,” 1989 Wisconsin L. Rev. 237, 246-247,
250. The author states that “the likelihood that a jury verdict will be
overturned on appeal depends to a substantial degree on the background
of the judges who compose the particuiar panel that decides each case.”
Id. at 248 (emphasis added).

22

considerations which guide this Court in determining
the rights of libel plaintiffs against media defendants.

In extending the concept of independent appellate
review to the issue of falsity, the Michigan Supreme
Court eviscerates the role of the jury, in effect vesting
appellate courts with original jurisdiction in libel cases
involving media defendants. The court justifies its
assumption of the role of super-jury and appellate fact-
finder by noting that the doctrine of independent appel-
late review “reflects an inherent distrust of allocating
unlimited decisional power to juries in the First Amend-
ment context,” and quotes one commentator as stating
that “‘much of contemporary first amendment doctrine

_is devoted to protecting speech from the jury.”

In fact, however, libel cases against the media present
a particularly strong argument in favor of the jury, both
as fact-finder and as a procedural safeguard. The jury
represents a cross-section of the community and has a
special aptitude for reflecting the view of the average
person. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 448
(1957). Trial by jury of libel actions thus provides a
peculiarly competent application of the standard for
judging libelous speech which, by its definition, calls for
an appraisal of the material according to the under-
standing of the average reader. Cf Masson v. New Yorker
Magazine, Inc., supra at 472 (“a statement is not con-
sidered false unless it ‘would have a different effect on

IS (App., p. A-27, n. 20; emphasis in original), citing Schauer,
“The Role of the People in First Amendment Theory,” 74 Cal. L.
Rev. 761, 765 (1986). However, Professor Schauer’s article, far from
supporting the court’s conclusion, decries the view that the role of
the jury should be diminished in such cases, noting that “[i]f a free
speech right derived from the notion of popular control is used to
deny that control, something very odd is happening,” and asking,
“What conception of freedom of speech and press would produce a
system in which an informed public would not be allowed to decide
just how much speech is wanted?” /d. at 781, 768.

the mind of the reader from that which the pleaded
truth would have produced’”).

Moreover, jurors, despite their brief public role as
arbiters of the facts at trial, are virtually always rela-
tively anonymous citizens; while judges, as public ser-
vants and public figures, are themselves particularly
vulnerable to attacks by the press and broadcast media.
Even more importantly, because jurors are chosen from
the ranks of American citizens, the collective opinions
of juries are more likely to express the consensus of
American values upon which our common-law system is
based than is the judgment of a judicial officer. Clearly,
it is for these reasons that the controlling distinction
between the power of the court and the power of the
jury is that the former is the power to determine the
law, and the latter to determine the facts. Dimick v.
Schiedt, supra at 486. This Court has expressly recog-
nized that this distinction is no less applicable to libel
cases than to other classes of common-law claims.

In Anderson vy. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986), this Court discussed the evidentiary standards
applicable to the granting of motions for summary judg-
ment and directed verdict, and iieid that the clear-and-
convincing evidentiary standard applicable to the
actual malice determination in public-figure libel actions
must be applied at the summary judgment stage, as
well as at trial. In imposing this burden, the Court
stated:

Our holding ... does nct denigrate the role of
the jury. It by no means authorizes trial on affi-
davits. Credibility determinations, the weighing
of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not
those of a judge, whether he is ruling on a

24

motion for summary judgment or for a directed
verdict."

The sole function of the jury is to determine issues of
fact, and we regularly entrust to juries the responsi-
bility of decisions affecting the lives and liberty of
American citizens, including decisions which directly
implicate constitutional rights.!° To suggest that jurors
are incompetent to inquire into the falsity of a defend-
ant’s libelous statements, thus distinguishing this partic-
ular inquiry from the myriad of no less weighty issues
entrusted to their judgment, is patently absurd. See Dun
& Bradstreet, Inc. v. Greenmoss Bldrs., Inc., 472 U.S. 749,
768, n.2 (1985) (White, J., concurring). For this reason,
as the decisions of this Court have consistently empha-
sized, the independent judgment exercised by appellate
courts in First Amendment cases does not extend to
such issues. See Bose Corp. v. Consumers Union of
United States, Inc., supra at 499-500; Harte-Hanks Commu-
nications, Inc. v. Connaughton, supra at 688; Masson v.
New Yorker Magazine, Inc., supra at 475.

The record in this case contains ample evidence to
support the jury’s findings of falsity and actual malice,
including the admissions of the authors of the articles

14 The Michigan Supreme Court interprets Anderson as
requiring a trial court passing upon a motion for directed verdict to
weigh the evidence to determine whether the substantive evidentiary
standard has been met (App., pp. A-27, n. 18). Such an undertaking
is, however, expressly forbidden by Anderson, which reaffirms the
applicability of the standard for directed verdict under Rule 50(a)
of the Federal Rules of Civil Procedure. /d. at 250-251. Michigan
applies the same standard. Caldwell vy. Fox, 394 Mich. 401; 231
N.W.2d 46 (1975).

15 This is particularly true in the criminal context, where the
due process clause of the Fourteenth Amendment protects a defen-
dant in a criminal case against conviction “except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. 358, 364
(1970).

eel

25

that their pre-publication investigation had convinced
them that there was no organized crime involvement in
Pine Knob.'® Under these circumstances, the Michigan
Supreme Court usurped the jury’s fact-finding function
when it determined that its verdict in favor of petitioner
Francell was “against the great weight of the evidence.”

THE DECISION OF THE MICHIGAN SUPREME COURT
CONFLICTS WITH THE DECISIONS OF OTHER
FEDERAL AND STATE APPELLATE COURTS.

Other appellate courts have refused to endorse the
extension of the doctrine of independent appel-
late review to issues not directly bearing upon
constitutionally-mandated standards. In Maheu v. Hughes
Tool Co., 569 F.2d 459, 464 (9th Cir. 1977), the Ninth Cir-
cuit declined to conduct a de novo review of the evi-
dence of falsity in a public-figure libel action, observing
that the standard of review proposed by the defendant
would “give [defendant] a second chance to convince
an independent fact finder.” Noting that “it is question-
able whether the issue of truth rises to the level of a
‘constitutional fact,” the court concluded that it was at
least arguable that defendant, by conceding the issue of
actual malice, had removed any First Amendment issue
from the case.'" /d., at 464-465.

Maheu is substantially indistinguishable from the pre-
sent case. In addition, the highest courts of two states
have refused to endorse the notion that independent
appellate review applies where actual malice is not at

16 See Statement of the Case, supra at p. 9.
17

In this case, the defendants did not formally concede the

issue of actual malice; however, the testimony of the reporters
amounted to a virtual concession of this issue.

26

issue. See Lansdowne v. Beacon Journal Publishing Co.,
512 N.E.2d 979; 32 Ohio St. 3d 176, 181 (1987) (indepen-
dent appellate review inapplicable to finding of negli-
gence); Gazette, Inc. v. Harris, 229 Va. 1, 20 (1985)
(independent appellate review inapplicable to issue of
compensatory damages). These decisions also conflict
in principle with the Michigan Supreme Court’s holding.

INDEPENDENT APPELLATE REVIEW OF THE MICHIGAN
SUPREME COURT’S DETERMINATIONS AS TO THE DEFAMATORY
MEANING OF THE ARTICLES IS CONSTITUTIONALLY MANDATED.

The Michigan Supreme Court also found that “the
headlines in the series, while arguably inflammatory, do
not convey false implications apart from the context of
the reported facts,” and that “[w]hile the headline that
the partners were ‘stalked by Mafia-hunters’ was some-
what misleading, since the ‘Mafia-hunters’ were not
stalking the plaintiffs, the headlines falls into the cate-
gory of permissible rhetorical hyperbole” (App., pp. A-44-
A-45).

The court's holding appears to draw its authority
from Greenbelt Cooperative Publishing Assn., Inc. v.
Bresler, supra, in which this Court held that a public
figure could not maintain a libel action based upon a
newspaper's report that he had been accused of “black-
mail” during a city counsel meeting, where, in the con-
text of the article, “even the most careless reader must
have perceived that the word was no more than rhetor-
ical hyperbole, a vigorous epithet used by those who
considerec [plaintiff's] negotiating position extremely
unreasonable.” /d. at 14. See also Letter Carriers vy. Austin,
supra at 284-286 (use of the word “traitor” in definition
of union “scab” could not form basis of libel action
where the epithet was “merely rhetorical hyperbole, a

27

lusty and imaginative expression of the contempt felt by
union members’ ).

In Greenbelt, this Court found that no reasonable
reader could have failed to discern that the charge of
“blackmail” was used in a purely figurative sense. In this
case, however, the headlines “Partners stalked by Mafia-
hunters” and “Mafia-hunters stalk Locricchio, Francell”
appeared in a series of articles which implicitly
promised to answer the question “is [Pine Knob]
Mafia?” In this context, the headlines were not “rhetor-
ical hyperbole” protected by the First Amendment.

This Court has repeatedly recognized that the exis-
tence of First Amendment-based limitations regarding
the manner in which defamatory meaning may be con-
veyed mandates independent evaluation by the Court.
See Greenbelt Cooperative Publishing Assn., Inc. v.
Bresler, supra at 11; Letter Carriers v. Austin, supra at 282:
Milkovich v. Lorain Journal Co., supra at 19; Masson v.
New Yorker Magazine, Inc., supra at 475-478. When the
highest court of a state has reached a conclusion on
such an issue, its reasoning is deserving of attention,
but its authority is not final. Pennekamp v. Florida, supra
at 335. Rather, this Court must examine for itself the
statements at issue and the circumstances under which
they were made, to see whether they are of a character
that those guarantees protect. /d.

CONCLUSION

Should the decision of the Supreme Court of Michigan
stand, the right to a trial by jury in public-interest libel
actions will be seriously eroded, both in Michigan and
in those other jurisdictions which choose to follow
Michigan's lead in requiring independent appellate
review of this quintessentially factual issue. Moreover,

28

the judicial quagmire created by the court’s decision
will inevitably further protract the appellate process
with respect to such cases, while yielding no counter-
vailing benefit in increased predictability of results.
Indeed, since the court has not seen fit to explicate the
constitutional rule laid down in its decision, it has virtu-
ally ensured that the courts will be clogged with appel-
late briefs testing the meaning and effect of its
pronouncements, absent intervention by this Court.

For the foregoing reasons, a writ of certiorari should
issue to review the judgment of the Supreme Court of
Michigan.

Respectfully submitted,

By: /s/ JEREMIAH J. KENNEY
Counsel of Record
/s/ PAMELA HOBBS

KITCH, SAURBIER, DRUTCHAS,
WAGNER & KENNEY, PC.

Tenth Floor

One Woodward Avenue

Detroit, Michigan 48226

(313) 965-7411

Dated: January 8, 1992

A-1

APPENDIX TO PETITION FOR CERTIORARI

DECISION SOUGHT TO BE REVIEWED
-CITED AS 476 NW.2d 112 (1991)-

(State of Michigan — Supreme Court)

(Argued October 3, 1990; Decided August 26, 1991)

(LOCRICCHIO v EVENING NEWS ASSOCIATION — Docket
No. 86351)

BRICKLEY, J.

Two competing legal regimes collide in libel cases
implicating First Amendment concerns. Libel law
enforces society's “pervasive and strong interest in pre-
venting and redressing attacks upon reputation” caused
by false and defamatory statements,! while consti-
tutional law safeguards the free flow of ideas and opin-
ions on matters of public interest that lie at “the heart
of the First Amendment's protection.”? The inherent
analytical tension between these regimes requires a
court both to protect reputational interests, and to
accord “breathing space” to principles of freedom of
press and speech. It remains a precarious task to bal-
ance these interests in cases, such as this one, that pit

| Rosenblatt v Baer, 383 US 75, 86; 86 S Ct 669; 15 L Ed 2d 597
(1966). Justice Stewart’s concurring opinion underscored that libel
law’s protection of reputation from defamatory falsehoods “reflects
no more than our basic concept of the essentia! dignity and worth
of every human being, — a concept at the root of any decent
system of ordered liberty.” (Stewart, J., concurring). /d. at 92.

2 First Nat'l Bank of Boston v Bellotti, 435 US 765, 776; 98 S Ct
1407; 55 L Ed 2d 707 (1978).

A-2

private-figure plaintiffs against a report by a media
defendant on a matter of public interest.* This case
tosses into the balance the tortuous issue of libel by
implication, in contrast to specific allegations of defam-
atory false statements of fact.

For our purposes, the controversy began in 1979,4
when the Detroit News published a four-part series of
articles entitled “The Pine Knob Story.” In response, the
owners and developers of Pine Knob, plaintiffs Joseph
Locricchio and Gary Francell, sued the Evening News
Association (hereinafter the Detroit News) and its
reporters for libel in 1980.5 The plaintiffs alleged that
the entire tenor of the Pine Knob series falsely implied
that plaintiffs were members or associates of organized
crime, but did not identify any specific false statements
in the articles.

The Detroit News attacked the plaintiffs’ failure to
identify any specifically false factual statements, and
moved for summary judgment. Both the trial court and
the Court of Appeals denied the summary judgment
motion. The case went to trial.

3 This opinion elucidates in later sections that “|a] traditionally

.. Strong affinity [exists] between first amendment jurisprudence
and [public discourse].” Post, The constitutional concept of public dis-
course: Outrageous opinion, democratic deliberation, and Hustler Maga-
zine v Falwell, 103 Harv L R 603, 627 (1990).

4 The plaintiffs’ original action also included allegations of
defamation arising from articles published by Detroit News colum-
nist Pete Waldmeir in 1972 and 1977, and an editorial published by
Detroit News editor Bill Giles in 1979. Only the Pine Knob series of
articles remains at issue on appeal.

5 The plaintiffs also sued for invasion of privacy, intentional
infliction of emotional distress, and contractual interference. These
counts have been dismissed, and only the libel allegations remain in
dispute.

A-3

A jury trial of prodigious length ultimately produced
a three million dollar verdict for plaintiff Francell.6 How-
ever, the trial court ruled that the evidence regarding
falsity did not support the jury’s verdict, and directed a
verdict for the Detroit News. The plaintiffs appealed the
posttrial directed verdict, and prevailed. The Court of
Appeals, citing its previous opinion on summary judg-
ment, applied the law of the case doctrine to reverse
the trial court, and reinstated the jury award.

This appeal can be said to involve essentially two
issues. First, did the Court of Appeals err in reversing
the trial court's directed verdict and reinstating the jury
verdict in favor of the plaintiffs? Second, can a private-
figure plaintiff recover damages in a media-defen-
dant/public-interest subject matter libel action where
the plaintiff alleges defamatory implication but fails to
identify or prove any materially false factual statements
or implications or omissions?’

We answer the first question affirmatively, and hold at
the outset that the Court of Appeals erred in relying on
the law of the case doctrine to reverse the trial court's

° The jury inexplicably found no publication of facts to a third
party with regard to plaintiff Locricchio and accordingly awarded

him zero damages.

‘ The parties do not dispute the configuration in this case of

private-plaintiff, public-interest /media-defendant. This opinion gen-
erally refers to the media nonmedia status of parties in the descrip-
tive rather than a normative sense. Dicta suggests that a majority of
the Supreme Court believes that “in the context of defamation law,
the rights of the institutional media are no greater and no less than
those enjoyed by other individuals or organizations engaged in the
same activities.” Dun & Bradstreet y Greenmoss Builders, Inc, 472 US
749, 784; 105 S Ct 2939; 86 L Ed 2d 593 (1985), (Brennan, J., dis-
senting). See note: The burden of proving truth or falsity in defamation:
Setting a standard for cases involving nonmedia defendants. 62 NYU LR
812, 840 (1987) (noting that the “Supreme Court has yet to decide
whether [the media-nonmedia] distinction is necessary or even
viable” ).

A-4

directed verdict, instead of independently reviewing the
record in a libel case of First Amendment import. We
find it unnecessary under the facts presented to answer
the second question as posed because of a lack of
proven falsity in either the underlying facts or in their
implication, and hold simply that the plaintiffs failed to
carry their burden of proving either false and defama-
tory factual statements or false implications. Accord-
ingly, the Court of Appeals erred in reinstating the jury
verdict in favor of plaintiffs.

l
FACTUAL BACKGROUND

The facts presented show that editorial superiors at
the Detroit News asked veteran reporters Michael Wend-
land and Jean Gadomski to investigate rumors of orga-
nized crime involvement in the plaintiffs’ Pine Knob
entertainment complex in 1978. Reporters Wendland
and Gadomski conducted an intensive two-month inves-
tigation of the Pine Knob facility in 1979. Their investiga-
tion reached its apex with an audiotaped interview
conducted with the plaintiffs (in the presence of their
attorney) in April of 1979.

The interview with the plaintiffs, and the independent
research of the Wendland-Gadomski team, sowed the
seeds for the four-part “Pine Knob Story” series of articles
that ran in the Detroit News from April 22 to 25, 1979. The
centrality of the Pine Knob series to this lawsuit leads us
to detail the content of the four articles below.

A. The First Article: “The Pine Knob Story: How 2
Friends And Hustle Created A Big Resort, Millions
In Debts And A Question: ‘Is It Mafia?’”

The first article appeared under the rather sensa-
tional headline above. Its opening paragraph described
the plaintiffs as “land gamblers ... [p]ower brokers with

A-5

the right connections — widely suspected to be
‘Mafia.’” The article quoted plaintiff Locricchio as con-
ceding “the feeling ‘Pine Knob is Mafia’ is so widespread
that ‘even my mother sometimes has her doubts.” The
article noted that although the plaintiffs “vehemently
deny mob involvement, they admit that they are on ‘all
the computer lists’ as organized crime figures.”

The first article further noted that plaintitts agreed to
talk to the Detroit News, in their words, to “clear the
air.” It provided provocative details of the plaintiffs’
backgrounds, informing readers, for example, that the
plaintiffs “wear silk shirts, drive expensive [cars] and fly
about the country in their own twin-e ngine airplane.”

The report asserted that “{Locricchio] is proud of his
Sicilian heritage and protective of his large family. He is
outgoing and talkative.” It described Francell in contrast
as “quiet, almost shy,” and noted that “Francell is of
French and German heritage.” The report stated that
although the plaintiffs felt “[a]ngered by what they

, Claim is harassment from the FBI. the Internal Revenue
Service and state and local law enforc ers, they never-
theless say they can see why ‘people think we’re mob.”

The report then detailed four key incidents, which
essentially comprise the gravamen of plaintiffs’ defama-
tion by implication claims, in what the authors
described as “the confusing, often incredible story” of
how the plaintiffs created Pine Knob. The article sum-
marized these four incidents as consisting of:

1) Two unsolved murders with links to people who
figured in Pine Knob’s development.

2) A so-called money wash designed to hide the
source of a $200,000 loan to Pine Knob.

3) “A $4 million cost overrun” by the plaintiffs in
the building of a Las Vegas Hotel theatre.

A-6

4) Several investors associated with organized
crime who either lent or helped [the plaintiffs]
raise large sums of money.

The article sketched the history of Pine Knob from
the original ownership in the 1950s to the plaintiffs’
acquisition in 1971, asserting that “[t]he stories of mob
involvement in Pine Knob began with [the acquisition of
Pine Knob by reputed organized crime-associated
investors in 1962].” The plaintiffs purchased Pine Knob
from these investors in 1971.

The authors reported that the plaintiffs confronted
financial troubles virtually from the moment they
acquired Pine Knob: troubles so severe that by 1972 the
partners “needed a tremendous cash flow [but] didn't
have it.” The report asserted that the plaintiffs’ financial
condition had so dramatically deteriorated that

[by] the summer of 1972, [the plaintiffs] were in
the worst financial bind of their careers. They
needed $200,000 — “desperately,” says Locric-
chio — to stave off foreclosures on outstanding
notes. The partners would get the money. But in
doing so, they would become involved in an
incredible financial intrigue to be investigated by
three federal grand juries. More than anything
else, it was that loan that put Locricchio and
Francell on the organized crime lists.

The first article ended with a trailer in bold letters that
proclaimed: “Tomorrow: A money wash and two mur-
ders.”

B. The Second Article: “The Pine Knob Story: How
[A] Loan Got Washed.”

As promised, the second article appeared under the
above headline on Monday, April 23, 1979. It focused
mainly on two incidents: the unsolved 1972 and 1974

A-7

murders of Agnes Brush and Harvey Leach, and a
$ 200,000 loan the plaintiffs obtained to finance the Pine
Knob complex in 1972.

Page one of the article displayed a photograph of an
automobile with its trunk open. The caption under this
photograph announced, “Harvey Leach’s car was found
with his body in the trunk.” The authors pointed out
that “Locricchio and Francell say they know nothing
about either [the Leach or Brush] killing .... A
score of police agencies have investigated the murders
and have not proved otherwise.”

The second article also asserted that “[the plaintiffs]
agree that their business connections, when diagramed
on a blackboard, make them appear to be ‘organized
crime figures,” and paraphrased Locricchio as asserting
“that such a diagram, drawn by police agencies, as well
as his Sicilian heritage, has unfairly put the sign of the
Mafia on Pine Knob.”

It recounted that an unknown assailant had stabbed
bookkeeper Agnes Bush to death three months after her
employer, William Magill, loaned $200,000 to the plain-
tiffs for Pine Knob financing. The article described the
late Harvey Leach as a “Southfield furniture magnate,”
who “had been working with [the plaintiffs] on con-
struction plans for a chain of furniture stores, called
Joshua Doore. Loans negotiated through the same
Toronto money broker [that engineered the so-called
money wash of the Magill loan] financed the building of
those stores.”

The article quoted Locricchio’s version of how the
controversial $200,000 Magill loan originated as follows:

| called [Pine Knob business associate Adele
Volpe] and said I needed $200,000 for a month,
two months... . [Volpe] said he couldn't

A-8

help, but he’d see what he could do. [Volpe]
called me back. He said, “I have this friend. His
name is Bill Magill. He'll give you the money.”

However, because Magill feared that disclosure of his
finances might endanger the safety of his daughter, he
insisted as a condition that the plaintiffs conceal the
source of the loan.

Citing an FBI interview with Magill in 1973, the
authors noted that although Magill had never met the
plaintiffs, he “withdrew all but $5,000 of his life savings
to loan [the plaintiffs] $200,000." It also quoted an inves-
tigating FBI agent who asked, “Why on earth would two
sensible people take all their savings and give it to a rel-
ative stranger without any security ...?” The article
asserted that the plaintiffs failed to repay the Magill
loan until 1977, and then only “after Magill began a fore-
closure procedure against Pine Knob.”

The article then described the intricate method the
plaintiffs employed to keep secret the source of the
Magill loan with the help of “an old friend, Southfield
attorney Fred Gordon.” The authors noted that Gordon
had “once before ... helped Locricchio find a private
money source” by putting Locricchio in touch with
reputed organized crime figure Leonard Schultz in the
late 1960s. The article quoted Locricchio as explaining
that “Freddy [Gordon] had a brainstorm. He said, ‘Look,
instead of borrowing the money (directly from Magill),
we'll use the money for collateral for another loan.”
The article described the logistics of the Magill “money
wash” as follows:

On July 25, 1972, [the plaintiffs] picked up the
$200,000 from Magill. The next day, Francell
drove to Toronto with the money. Gordon flew
there. Together, they entered the offices of

A-9

Toronto attorney Joseph Burnett, who ran a
large, international real estate financing com-
pany. Francell gave Burnett the cash. In turn,
Burnett gave the Pine Knob partners a $200,000
loan, the check drawn on one of Burnett's com-
panies, thus hiding Magill’s role in the transac-
tion. While the transaction was legal, it was highly
unorthodox ... . {Emphasis supplied. |

The final part of the article discussed the links
between “people involved in laundering the $200,000
Magill loan” and the murders of Agnes Brush and
Harvey Leach. It noted that “Locricchio and Francell . . .
are puzzled by the coincidences. But they say they are
only coincidences.”

C The Third Article: “The Pine Knob Story: A Brush
With Bankruptcy.”

The third article in the series appeared under the
above headline. It focused on the financial problems the
plaintiffs experienced in 1975, partly as a result of FBI
harassment, and detailed that the plaintiffs had
obtained loans from a number of reputed organized
crime figures. The article asserted that “[t]he partners
were even overdue in paying their accountants” and
quoted Locricchio as lamenting, “‘We couldn't get any
financing through banks. We were up to here.” It con-
tinued by stating that “[t]he financial difficulties were
but part of their troubles, say Locricchio and Francell.
At this time the FBI showed up to tell them they were
going to be indicted [regarding the $200,000 Magill
loan].”

The article pointed out that a federal grand jury ulti-
mately indicted the plaintiffs for “lying about the Magill
loan on a mortgage application from a federally insured

bank” in 1977. The plaintiffs pleaded guilty and were

A-10

fined $500. The article stated that “[i]t is the only time
either man has been convicted of a crime.”

The article also described how Locricchio had
secured a bid from reputed organized crime figures
James Tamer and Charles Goldfarb to construct a “Pine
Knob-like” music theatre at the Aladdin Hotel in Las
Vegas. The article stated that “Locricchio estimated
construction costs [of the music theater] at $6 million

. {i]t ended up costing $10 million.” It quoted an affi-
davit from the 1978 indictment of Goldfarb and Tamer
on charges to illegally control the Aladdin's gambling
casino “as claiming that Locricchio was secretly offered
a ‘piece’ of the Aladdin in exchange for his [construc-
tion} work on the music theater.” It also referred to
unnamed sources who claimed that “the FBI questioned
whether the $4 million cost overrun was possibly an
illegal ‘bonus’ to Locricchio,” and described how the FBI
tried to get Locricchio to serve as a “snitch” against
suspected organized crime involvement in the Aladdin
hotel's gambling casino, an offer which he refused.

D. The Fourth Article: “The Pine Knob Story: Part-
ners Stalked By Mafia-Hunters.”

The final article in the series appeared under the
above headline. Despite the headline, this article really
had little to do with stalking by “Mafia-hunters.” The
article actually began on an upbeat note, asserting that
“{t]he owners of Pine Knob entertainment complex .. .
are bouncing back from near bankruptcy and a public
impression they are ‘Mafia.’” It quoted Locricchio as
boasting, “We ain't the Rock of Gibraltar yet ... [but the
Pine Knob facilities] are so strong that in spite of all
(the problems), we're going to overcome. There’s no
doubt now.”

The article wert on to note that the Pine Knob com-
plex turned a $700,000 profit in 1977-78. It quoted

A-1]

Locricchio as chalking up the FBI attention to “his
Sicilian heritage and his business success.” Locricchio
conceded close acquaintances with numerous “alleged
Mafia members,” but contended that the government
harassment because of these acquaintances amounted
to guilt by association. The rest of the article described
the relationship between the partners. It ended by
noting that the “partners worry that the intensive law
enforcement investigations into their activities over the
last eight years will continue to haunt them.”

II.
PROCEDURAL HISTORY

Four important events, outlined as follows, chart the
procedural history of this case: the pretrial denial of
summary judgment, the trial on the merits, the trial
court's directed verdict, and the Court of Appeals
reversal of the directed verdict.

A. The Trial Court And Court Of Appeals Denials Of
Summary Judgment.

The plaintiffs’ original and subsequent amended com-
plaints alleged “[t]hat by the entire tenor of these pub-
lications, Defendants acted in reckless disregard of the
falsity of their publications and said ... that Plaintiffs
Locricchio and Francell were persons engaged in orga-
nized crime and engaged in a continuing course of crim-
inal misconduct or conduct of an immoral or
reprehensible nature in both their personai and busi-
ness relationships.”

The plaintiffs’ complaints did not identify a single
false statement that appeared in the Pine Knob articles.
The defendants moved for summary judgment before
trial. They contended that the absence of aliegations of
specific false statements in the complaint negated any
issue of material fact. The trial court denied the motion.

A-12

Rebuked by the denial of summary judgment, the
defendants countered with a number of interrogatories
that asked the defendants to identify each alleged false
statement in the Pine Knob series. The plaintiffs
responded tersely:

[T]he defamation allegations contained [in the
complaint] are not necessarily based on a false
statement(s) in any one particular article, but
rather, ... the entire series of articles ... injured
the reputations of plaintiffs as the same repre-
sented a false portrayal, implication, imputation
and/or insinuation ...

Unsatisfied with this response, the defendants once
again moved for summary judgment on the plaintiffs’
libel claims, rearguing that no genuine issue of material
fact existed because of the failure of the plaintiffs to
allege any specific false statements of fact. Once again,
the trial court disagreed, and denied defendant's sum-
mary judgment motion.

The Court of Appeals granted leave on interlocutory
appeal to resolve the issue and issued its opinion in
August 1983.5 The Court of Appeals rejected the argu-
ment that the absence of specific allegations of false
statements of fact mandated dismissal on summary
judgment. The Court of Appeals relied on three cas te
reach this conclusion: Sanders v Evening News Ass'n, 313
Mich 334, 340; 21 NW2d 152 (1946), Caldwell v Crowell-
Collier Publishing Co, 161 F2d 333, 335-336 (CA 5, 1947),
cert den 332 US 776 (1947), and Memphis Publishing Co v
Nichols, 569 SW2d 412, 419-420 (Tenn, 1978).

From Sanders, the Court of Appeals extracted the
maxim that “‘[t]o test its libelous quality, a publication

8 This Court subsequently denied interlocutory appeal, and the
United States Supreme Court denied certiorari.

A-13

is to be considered as a whole, including the character
of the display of its headlines when the article is pub-
lished in a newspaper, and the language employed
therein.” /d. at 340. From Caldwell and Nichols, the
Court of Appeals extrapolated the proposition that
“{i]Jnsinuation, imputation or inference may be as
defamatory as a direct, unveiled assertion.” Having thus
affirmed the theoretical validity of a cause of action for
defamation by implication, the Court of Appeals held
that “[t]he pleadings give rise to a genuine issue of
material fact which is to be left to the trier of facts and
cannot be disposed of by summary judgment, and
remanded the case for trial.

B. The Trial.

The case proceeded to a sometimes vitriolic trial. One
of the most controversial trial issues involved the
authenticity and veracity of the tapes and transcripts
from the Detroit News’ interview of the plaintiffs in
1979.9 The plaintiffs controverted many of the quotes
from the taped interview that appeared in the Pine Knob
series. The tape apparently had very poor sound quality
and much contention reigned during the trial over what
the plaintiffs had actually said or not said on the tape.

Reporter Michael Wendland, the lead author of the
Pine Knob series, provided crucial testimony at trial. At
the time of the trial, the law required a private plaintiff
suing a media defendant on a report of public interest
to prove actual malice.’ Accordingly, much of Wend-

9 The reporters had agreed to provide the plaintiffs and their
attorney a duplicate copy of the taped interview. At trial, the plain-
tiffs contended that Detroit News had actually provided a blank
copy.

10 Our decision in Rouch v Enquirer & News of Battle Creek, 427

Mich 157; 398 NW2d 245 (1986), subsequently rejected the actual
malice standard of liability in private-figure public-interest cases.

A-14

land’s cross-examination targeted his state of mind
regarding the truth of his factual reporting. Specifically,
the plaintiffs’ attorneys attempted to show that Wend-
land did not personally believe either that Locricchio
and Francell were actually organized crime members or
that Pine Knob was Mafia-owned.

On cross-examination Wendland testified, “I dont
think there’s organized crime involvement in the owner-
ship of Pine Knob. | think organized crime has been
involved in... helping your clients finance Pine Knob,
and | also testified | domt think your clients are orga-
nized crime members.”

Wendland also testified that he did not use the term
“money wash” regarding the $200,000 Magill loan to
impute illegality, but rather to convey that “[the loan]
was obscuring the source of the funds ... what this
loan did ... was to hide the source of the money. And
that is certainly unusual. That’s a money wash.”

The plaintiffs’ trial attorney also tried assiduously to
show that the Vine Knob series contained factual inaccu-
racies Or omissions. He ultimately secured two admis-
sions from Wendland regarding factual inaccuracies.
First, Wendland conceded that the second Pine Knob
article erroneously stated that a “score of police agen-
cies” had investigated the plaintiffs regarding the Leach
and Brush murders. Wendland could in fact name only
fourteen, not twenty agencies, that had investigated the
Leach/Brush murders, including three federal grand
juries and the Internal Revenue Service. Wendland ex-
plained, “We use [the phrase ‘a score’ ] | think, a lot, you
know, meaning a great many, certainly more than a few.

Second, Wendland conceded inaccuracy regarding the
picture of Harvey Leach’s car under the caption,
“Harvey Leach’s car was found with his body in the

A-15

trunk,” that appeared in the second article. Wendland
testified the caption “should have said -— | mean, that
makes it sound like it happened today, and my gripe
was that it should have said in 1974"

Wendland stood by the factual accuracy of the rest of
the series. He conceded that the question printed
throughout the articles, “Is it Mafia?” arguably referred
to the plaintiffs whose names were synonymous with
Pine Knob. However, when asked if the articles ever
stated an answer to the question “Is it Mafia?” Wend

land replied

I think all four articles answer that question
if you read your client's response to this
constant attention, constant rumors, you ll see
them saying, “No, we are not Mafia iMly job
is to report the facts, put all the facts out there
for people to make up their mind. And that’s
what we did in this story. [The plaintiffs] over
and over again, point it out how these rumors
have pervaded over their whole lives and how
these rumors are not true

{

Pressed by his cross-examiner about the accuracy of
the statement attributed to Locricchio in the Pine Knob
series “that {a hypothetical organized crime diagram]
drawn by police agencies, as well as his Sicilian her-
itage. has unfairly put the sign of the Mafia on Pine
Knob,” Wendland replied that the statement comprised
not a direct quote, but rather [an accurate] “paraphrase
of the entire discussion” with the plaintiffs

The plaintiffs’ attorney tried also to show falsity in
the first Pine Knob article's assertion that *|s!everal
investors associated with organized crime either

lent or helped Locricchio and Francell raise large sums

A-16

of money... .”. Wendland refused to concede this
statement contained material falsity, explaining that

at the very start ... when [the plaintiffs] first
bought Pine Knob, one of the parties who owned
it was a guy named Arthur Rooks. | think another
owner was Alex Kachinko. Both of those people
were associated with organized crime, and [the
plaintiffs] bought Pine Knob from those people.

* * *

[Pine Knob] was sold, | think, for a little over a
million dollars on a land contract. In effect, Mr.
Rooks, [Mr.] Kachinko ... became the bankers
They held the land contract. I’m interpreting that
to mean, in effect, they lent [plaintiffs] the

money .... As the holder of the land con-
tract, they had a very strong interest in Pine
Knob ... [the term “lent” ] fit into that more than

anything else. That's probably not entirely accu-
rate, but it was — in effect, they ended up being
owed money, lending money, they had an
interest in it.

The plaintiffs’ expert, one Professor Robert Bjork, a
doctor of cognitive psychology at UC.L.A., also provided
crucial testimony at trial. The plaintiffs’ attorney asked
Dr. Bjork whether “the typical readers [of the Pine Knob
series would] associate my clients, Mr. Locricchio and
Mr. Francell, with [the murders of Agnes Brush and
Harvey Leach]?” Bjork replied:

| believe they would end up thinking that
somehow those murders are related somehow to
the financial goings-on. | don't believe they would
[necessarily] conclude [that] Mr. Locricchio and
Mr. Francell were involved personally in some
way.

~

A-17

The plaintiffs’ attorney also asked Professor Bjork’s
opinion regarding “whether or not the four [Pine Knob]
articles ... when read by a typical reader, created an
impression that Mr. Locricchio and Mr. Francell are
associated with organized crime?” Bjork replied, “In my
opinion ... the typical reader would end up thinking
that Mr. Locricchio and Mr. Francell have some kind of

connection with organized crime.” (Emphasis supplied )

For their part, the defendants essentially mounted a
defense of truth against the plaintiffs’ libel allegations.
The defendants tried to demonstrate throughout the
trial that the plaintiffs did in fact have numerous ties to
individuals with organized crime backgrounds, that
rumors of organized crime ties to Pine Knob originated
long before the publication of the Pine Knob series, and
that the articles contained no material falsehoods or
omissions of fact.

At the conclusion of the proofs, the trial court in-
structed the jury that “[i]t is the Plaintiffs’ burden of
proof to satisfy you by a preponderance of the evidence
that the statements or innuendoes complained of were
false in some material respect and published with
actual malice.!"! Plaintifts will not have satistied their
burden of proving material falsity if you find that the
Detroit News articles were substantially true.” The
defendants moved for a directed verdict, which the trial
court took under advisement pending the jury’s return
of a verdict.

The jury returned special verdicts in September 1985.
It found in respect to plaintiff Francell that the Detroit
News published the articles, that the articles contained
false and defamatory statement(s), and that the defen-
dants had knowledge that the statement was false or

Al See n 10.

A-18

acted with reckless disregard regarding its falsity. The
jury awarded Francell three million dollars in actual
damages. With respect to plaintiff Locricchio, the jury
awarded no damages after finding no publication, i.e.,
that the defendants did not disseminate-false and
defamatory facts to a third party through printing,
writing, or pictures.

C The Trial Court's Directed Verdict.

The trial court ruled on the defendant’s motion for a
directed verdict in December 1986. It approvingly cited
the newly released Supreme Court decision in Philadel
phia Newspapers, Inc v Hepps, 475 US 767; 106 S Ct 1558:
89 L Ed 2d 783 (1986). From Hepps, the trial court extra-
polated that “[w]here allegedly defamatory speech is of
public concern, the First Amendment demands and ~
Michigan law requires that the plaintiff, whether public
official, public figure, or private individual, prove the
statements at issue to be false.” The trial court then
held that “the plaintiffs have failed to prove the publica-
tions at issue contained significantly false facts, and a
verdict must be directed for the defendant.”

The trial court further stated that “[i]nsinuation,
imputation, or inference may be as defamatory as a
direct unveiled assertion.” The trial court nevertheless
concluded that “liability cannot be imposed for journal-
istic inferences arising from the reporting of true facts
about matters of public interest and concern. The plain-
tiff must prove the faise impression arises from untrue, >
or undisclosed facts.”

The trial court then compiled a fourteen-paragraph list of
facts that it found “are true; or at least, [that] the plaintiffs
have not proven them to be false.” The court concluded:

“{1] Plaintiffs purchased Pine Knob from
individuals who had been indicted by a federal

ee ee

A-19

grand jury for concealing their ownership inter-
ests in a Las Vegas hotel.

“{2] Plaintiffs’ names appeared on the organized
crime lists of the Federal Bureau of Investigation.

“{3] Plaintiffs were personal friends of, or
had done business with, innumerable individuals
whose names are commonly associated with
organized crime, including Leonard Schultz,
Dominic Corrado, Joseph Burnett, Fred Gordon,
James Tamer, Charles Goldfarb, Harvey Leach,
Charles Monazym and Jack Tocco.

“{4] In the course of their investigations,
agents of the Federal Bureau of Investigation
spoke with plaintiffs’ bankers and referred to
plaintiffs as ‘crooks.

“{5] Defendants.
for their part, do ot challenge the jury verdict on the
ground that plaintiffs failed to prove the requisite
degree of fault, nor do they challenge the finding that
plaintiffs are private rather than public figures. Defen-

As Justice BRICKLEY notes, plaintiffs, toward the very begin-
ning of this litigation, responded to defendants’ interrogatories by
stating that

the defamation allegations ... are not necessarily based on
a false statement(s) in any one particular article, but rather,
that the entire series of articles, in their entirety, injured
the reputations of plaintiffs as the same represented a
false portrayal, implication, imputation and/or insinuation
that plaintiffs, among other things, are or were members
and ‘or associates of an organized criminal society, other-
wise known as the “Mafia”. .. .

A-52

dants’ defense is essentially one of truth. Defendants
- both deny that the implications of which plaintiffs com-
plain can fairly be said to arise from the articles, and
they contend in any event that, given the conceded
truth of the specific factual statements, any overall
implications which do arguably arise therefrom are nec-
essarily privileged as “implications from true facts.”

Plaintiffs’ claim is thus vastly different from the more
typical or familiar “defamatory implication” claim. Plain-
tiffs do not allege that any particular factual statement
by defendants is reasonably susceptible of conveying a
specific factual implication which is provably false. Nor
do they contend that defendants, by selectively omitting
crucial relevant facts, have conveyed any misleading fac-
tual implication on the basis of otherwise true state-
ments. Rather, they contend that a collection of
concededly true factual statements amounts to false
defamation because of the inferential or speculative
conclusions that the average reader might draw from
the totality of those statements. Thus, while it is
undoubtedly true, as a general matter, that defamatory
implications may be potentially actionable if provably
false, the case law cited by plaintiffs reiterating that
familiar principle is ultimately inapposite and unhelpful.

| believe the issue in this case, properly framed, is
best analyzed by recourse to those cases which have
addressed the somewhat elusive prgblem of “defama-
tion by implications from true facts.” While this difficult
area of defamation law has not yet been fully explored
— and | have no pretensions that this Court can or
should presume to offer any definitive solutions today
— a number of cases have set forth useful and persua-
sive analyses of the issue. Perhaps the leading case is
Strada v Connecticut Newspapers, Inc, 193 Conn 313, 323:
477 A2d 1005 (1984), where “the plaintiff [sought] to

A-53

recover from a publication where all the underlying and
stated facts [were] proved to be true. or substantially
true, claiming that the ‘slant’ of the article [gave] rise to
allegedly false and defamatory implications.” In a
thoughtful and carefully analyzed opinion, the Con-
necticut Supreme Court concluded that “[t]he goal of
nurturing a free and active press in the political arena
mandates deiial of recovery by a public figure where
the allegation of defamation ‘depends fundamentally on
an interpretation of various aspects of the broadcast.
not on anything directly said in it.” Jd

When any inference or innuendo does not
arise from the omission of material facts. but
rather from the editorial choice of layout, the
plaintiff may not recover for libel by innuendo.
The media would be unduly burdened if. in addi-
tion to reporting facts about public officers and
public affairs correctly, it had to be Vigilant for
any possibly defamatory implication arising from
the report of those true facts. [(/d. at 326.]

It is true that Strada involved the alleged defamation of
a public figure, and the court suggested at some points
that its rule should be limited to that category of cases.
| believe, however, that the gist of Strada’s reasoning, if
not necessarily its precise contours. properly applies to
this case, which, although involving private-figure plain-
tiffs, involves speech of public concern.®

| find highly instructive the reasoning of Woods v
Evansville Press Co, 791 F2d 480 (CA 7, 1986). The court
in Woods, while conceding that implied defamatory
statements may be actionable, and even assuming for

ga ; ‘ : : ; : :
The issue of possible organized-crime involvement in a
major business and entertainment development is certainly of
public concern.

A-54

purposes of analysis that the article there at issue
could reasonably be read to contain the “defamatory
implications” ascribed to it by the plaintiff in that case,
see id. at 486, held that

requiring a publisher to guarantee the truth of
all the inferences a reader might reasonably
draw from a publication would undermine the
uninhibited, open discussion of matters of public
concern. A publisher reporting on matters of
general or public interest cannot be charged
with the intolerable burden of guessing what
inferences a jury might draw from an article and
ruling out all possible false and defamatory innu-
endoes that could be drawn from the article. [/d.
at 487-488. ]

‘he court in Strada cited a case also discussed by my
Becther BRICKLEY, Memphis Publishing Co v Nichols, 569
© ¥ a 412 (Tenn, 1978), which addressed a claim of defa-
; ion by implication from true facts. See BRICKLEY,

ite, p 124-126. | agree with my colleague that Nichols
joes not support plaintiffs’ claim in this case. Indeed, |
think the differences between the claims in Nichols and
this case are very illustrative. The plaintiff in Nichols
was a gunshot victim who alleged that she was falsely
defamed by an article describing the shooting, which
occurred at the victim’s home. The female assailant’s
husband was present in the victim's home at the time of
the shooting, and he was also fired upon. The defendant
newspaper published those facts, which were true as far
as they went, but failed to report that the victim’s own
husband, as well as two other neighbors, were also pre-
sent at the time, and that the group was simply con-
versing in the living room. By omitting those crucial
relevant facts, the article, while technically true, directly
and misleadingly implied that the victim and the

A-55

assailant’s husband were caught in an illicit, adulterous
relationship. See 569 SW2d 414, 419. As the court heid:

The proper question is whether the meaning
reasonably conveyed by the published words is
defamatory... . The publication of the com-
plete facts could not conceivably have led the
reader to conclude that [the plaintiff] and [the
assailant’s husband] had an adulterous relation-
ship. The published statement, therefore, so dis-
torted the truth as to make the entire article
false and defamatory. [/d. at 420. Emphasis in
original. |

In this case, by contrast, there is no claim that defen-
dants, by omitting crucial relevant facts, conveyed any
skewed or misleading implications. The implications of
which plaintiffs complain are simply the ordinary and
natural implications that might be expected to flow
from the specific factual statements published by defen-
dants, whether taken separately or together. While
many of those statements were undoubtedly defama-
tory, in that they had a tendency to injure the reputa-
tions of plaintiffs, they were also concededly true. While
the “overall implications” allegedly conveyed by the arti-
cles as a whole may also have been defamatory, their
thrust was not misleading or different in kind from that
of the concededly true specific statements. Rather, the
implications, if any, simply reflected the accumulated
thrust of the concededly true stated facts. It logically
follows that such implications — even if not themselves
capable of being either verified or disproven — would
necessarily be protected by the same defense of truth
shielding the specific factual statements. This is simply
not a case, like Nichols, where the separate factual
ingredients of the publication add up to more than the
sum of their parts, to the extent that a collection of

A-56

true facts, by the omission of crucial associated facts,
ends up conveying an actionably false implication. True
facts, whatever their “implications,” cannot become
actionable simply because they are collected and pub-
lished together in a straightforward manner.’

It is significant that plaintiffs, while conceding the
truth of all the specific, concrete factual statements in
the disputed articles, define the allegedly false “implica-
tions” in exceedingly broad and vague terms. Plaintiffs
have been unable to define those implications any more
specifically than in terms of the vague and perhaps
undefinable proposition that they “are Mafia.” Yet, while
they strenuously assert the general falsity of that prop-
osition, they have not disputed the essential truth of all
of defendants’ concrete assertions regarding their spe-
cific activities and financial ties to commonly-reputed
organized-crime figures.® Plaintiffs have conceded that
they appear on the lists of organized-crime suspects

ay agree with my Brother BRICKLEY that the one potentially
troublesome aspect of the disputed articles is the caption of the
photograph in the second article regarding the discovery of Harvey
Leach’s body in the trunk of his car. See BRICKLEY, ante, p 132.
The caption itself fails to note the important facts that the body
was discovered in 1974, five years before the articles were pub-
lished, and that plaintiffs were never implicated in the murder. I
also agree, however, that this isolated defect, for which defendant
reporter Michael Wendland indicated regret at trial, is not enough
to support plaintiffs’ claim. The caption, taken by itself, does not
refer to either plaintiff, and conveys little comprehensible informa-
tion at all without the background and context provided by the text
of the second article. That text accurately, and with reasonable
completeness, describes the known facts associated with Leach’s
murder, including the fact that intensive investigations by numerous
law enforcement agencies never found any connection between
plaintiffs and Leach’s murder.

8 As the circuit court noted in granting defendants’ motion for
directed verdict, it is essentially undisputed that “[p]laintiffs were
personal friends of, or had done business with, innumerable indi-
viduals whose names are commonly associated with organized
crime. ... ee

A-57

maintained by the Federal Bureau of Investigation.
Indeed, plaintiff Locricchio conceded, in an interview
before the disputed articles were even published, that
rumors of plaintiffs’ ties to organized crime and investi-
gations of them by numerous law enforcement agencies
had already become so persistent that he feared his
own mother might suspect him.

None of this, of course, necessarily establishes that
plaintiffs “are Mafia” — however that elusive concept
may be defined. | would not presume to speculate, and
this Court need not decide, whether plaintiffs “are
Mafia.” It is noteworthy that defendant reporter Michael
Wendland stated at trial his belief — which he believed
to be consistent with the content and thrust of the dis-
puted articles — that plaintiffs themselves were not
directly involved in organized crime, although he
believed that organized-crime figures were indirectly
involved in financing the Pine Knob development. It is
to be hoped, of course, that the average, fair-minded
reader would stick to the concededly true facts as pre-
sented in the disputed articles, and avoid leaping to
speculative or unwarranted conclusions about plaintiffs.
But it simply acknowledges human nature to observe
that there is no way to guarantee or control what any
reader may infer, speculate, or conclude on the basis of
facts of which he is made aware.

For purposes of this case, it is enough to conclude,
as a matter of law, that a defamation defendant cannot
be held liable for the reader's possible inferences, spec-
ulations, or conclusions, where the defendant has not
made or directly implied any provably false factual
assertion, and has not, by selective omission of crucial
relevant facts, misleadingly conveyed any false factual

implication. In sum, the overall implications that may
flow from true factual statements straightforwardly pre-

A-58

sented are ordinarily as privileged for defamation pur-
poses as ihe statements themselves. Any other conclu-
sion, in my view, would unacceptably inhibit the free
reporting of news and information of public concern.’

III.
CONCLUSION

This Court’s concern for the freedom to report opinions
and truthful information about people is longstanding. In
the very first volume of our Reports, we noted that “[i]n
this country, and particularly in this western country,
great latitude has been allowed to individuals in speaking
and writing ‘of and concerning’ private and public charac-
ters . ...” People v Jerome, 1 Mich 142, 144 (1848). In line
with this historic concern, and for the reasons detailed
above, | agree that the judgment of the Court of Appeals
must be reversed, and that the directed verdict in favor of
caefendants must be reinstated.

LEVIN, J. (dissenting).

The signers of the lead opinion conclude that Joseph
Judeas Locricchio and Gary Francell! failed to prove that

9 My Brother LEVIN would permit recovery against defendants
for publishing concededly true facts, simply because those facts
inevitably convey unflattering overall implications about plaintiffs.
He does not explain how his analysis takes account of the unique
and troublesome issues raised in the area of implications from true
facts.

I agree with my colleague, of course, that the mere rephrasing of
a statement into the form of a question, whether “Is it Mafia?” or
“Is he a womanizer?” cannot immunize the statement. But my col-
league overlooks the plethora of concededly true facts in the dis-
puted articles which rendered the provocative headline question a
reasonable comment on those facts.

| The verdict awarded Francell damages and found that Locric-
chio had no cause for action.

A-59

the Pine Knob series published in the Detroit News
falsely implied that they “were members or associates of
organized crime.”* The concurrence concludes that the
Detroit News is not subject to liability because it “has
not made or directly implied any provably false factual
assertion, and has not, by selective omission of crucial
relevant facts, misleadingly conveyed any false factual
implication.”3

| dissent because there was sufficient evidence for sub-
mission to the jury that the Detroit News falsely implied
that Locricchio and Francel] were members or associates
of organized crime.

Michael Wendiland, one of the reporters, testified at the
trial that he recalled telling Locricchio and Francell.
when he interviewed them shortly before the Pine Knob
series was run, that “we did not find any organized crime
involvement in the ownership of Pine Knob, nor did we
think that your clients were members of the Mafia.”
(Emphasis added.) He added. “I don't believe Gary Fran-
cell or Joe Locricchio are members of the Mafia.” The
follow-up question and answer were:

Q You knew that when this headline was
written, didn’t you?
A. Yes, | — that was my conclusion.
Nevertheless, the Detroit News published the Pine
Knob series which posed the question whether Locric-
chio’s and Francell’s investment in Pine Knob was Mafia
— “[{i]s it Mafia?” — and which linked them to two
unsolved murders.

Ante, p 89.

CAVANAGH, C. J., ante, p 144.

A-60

Wendland and another reporter who worked on the
story, Jean Gadomski, acknowledged that although they
had investigated the Harvey Leach and Agnes Brush mur-
ders, as far as they could determine, neither Locricchio
nor Francell was a suspect. Nevertheless, the Detroit
News Pine Knob series linked them to the investigation
of those homicides in an article which repeated the ques-
tion, “Is it Mafia?”

The question in the instant case is whether the jury
could reasonably conclude that the Pine Knob series
implied that Locricchio and Franceill were members or
associates of organized crime, and that it was defama-
tory and false. | would answer the question in the affir-
mative.

The four articles appeared on the front pages of the
Detroit News during the four-day period beginning
Sunday, April 22, 1979.

The first article began with the headline, “The Pine
Knob Story: How 2 friends and hustle created a big
resort, millions in debts and a question: ‘Is it Mafia?™”
Each of the four articles included a caption box, reading:

In the last eight years Pine Knob, in Oakland
County, has developed from a losing ski resort
into one of the nation’s foremost entertainment
complexes, worth millions. During these years the
persistent question in Michigan and elsewhere
has been “Is it Mafia?”

The first article states that “tangled in the confusing,
often incredible story of how [Locricchio and Francell]
made Pine Knob, are:

Two unsolv« d murders. Though separate, the
killings share common elements that lead to some

A-61

of the same people who figured in Pine Knob’s
development.

A so-called “money wash” in which a Toronto
firm linked to an associate of Meyer Lansky, the
Mafia’s key money man, hid the source of a
$200,000 Pine Knob loan.

A $4-million cost overrun by Locricchio and
Francell in the building of a glittering theater for
Las Vegas’ Aladdin Hotel and Casino.

Several investors associated with organized
crime who either lent or helped Locricchio and
Francell raise large sums of money.

The tag line at the end of the first article read:
Tomorrow: A money wash and two murders.

The second article, headlined, “The Pine Knob story,
How loan got ‘washed.” featured a photograph of an
automobile with its trunk open. The caption under the
photograph read. “Harvey Leach’s car was found with his
body in the trunk.” This article was continued on a later
page, which led with the headline, “How vital Pine Knob
loan was ‘washed’ in Toronto,” and was accompanied by
a picture of Leach. The Story traced the $200,000 loan.
and described the “laundering” process. The article also
contained the following statement:

While the transaction was legal, it was
unorthodox and it attracted the attention of the
Ontario Provincial Police, who in turn talked to
the FBI.

And with regard to the murders,

Locricchio and Francell Say they know nothing
about either killing, and insist it is coincidental
that some of the same people were involved in

A-62

the loans to Leach and Pine Knob. A score of
police agencies have investigated the murders
and have not proved otherwise. ... The only
suspect [in the murder of Agnes Brush] was the
61-year-old laborer who worked with Miss Brush.

The third article was headlined “The Pine Knob story,
A brush with bankruptcy.”

The fourth and last article was headlined, “Partners
stalked by Mafia-hunters,” and, on the continuing page,
“Mafia-hunters stalk Locricchio, Franceil.”

Il

Chief Justice Rehnquist opened his review of the law in
one of the most recent pronouncements of the United
States Supreme Court, Milkovich v Lorain Journal Co, 497
US __; 110 S Ct 2695; 111 L Ed 2d 1, 13 (1990), with the fol-
lowing:

Who steals my purse steals trash;
‘Tis something, nothing;
“Twas mine, ‘tis his, and has been slave to
thousands
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.
[ Othello, act Ill, scene 3.]

In Milkovich, the Court stated that the majority was
not persuaded that in addition-to the protections of
media expression the Court had enunciated, beginning
with New York Times Co v Sullivan, 376 US 254; 84 S Ct
710; 11 L Ed 2d 686 (1964):

an additional separate constitutional privilege for
“opinion” is required to ensure the freedom of
expression guaranteed by the First Amendment.
[111 L Ed 2d 19.]

A-63

The Court turned to the case at hand and said:

The dispositive question in the present case
then becomes whether or not a reasonable
factfinder could conclude that the statements in
the Diadiun column imply an assertion that peti-
tioner Milkovich perjured himself in a judicial pro-
ceeding. We think this question must be answered
in the affirmative. [/d. Emphasis added. }

The “dispositive” question, as stated by the United
States Supreme Court in Milkovich, whether a reasonable
factfinder could conclude that the Statements implied an
assertion that was defamatory, is long established, and is
expressed in the Restatement of Torts as follows:

§ 563. Meaning of the Communication

The meaning of a communication is that which
the recipient correctly, or mistakenly but reason-
ably, understands that it was intended to express.
[3 Restatement Torts, 2d, § 563, p 162.)

The Restatement continues that the court determines
whether a communication “is capable of bearing a partic-
ular meaning,” and “whether that meaning is defamatory.”
The jury determines whether “a communication, capable
of a defamatory meaning, was so understood by its recip-
ient.” /d., § 614, p 311.

In Gustin v Evening Press Co, 172 Mich 311, 313; 137 NW
674 (1912), this Court affirmed an order of the circuit
court overruling a demurrer to plaintiff's decjaration for
libel. The article was headlined:

Goes to Australia.

Alpena Man Turns Over Assets and Seeks New
Country.

A-64

The Court said that “‘the sting of the libel was contained
in the headlines,” and quoted with approval Justice
COOLEY’S statement in his work on torts that in deter-
mining whether words are libelous, “they are to be taken
in their plain and natural import, according to the ideas
they are calculated to convey to those to whom they are
addressed . ..."” Jd, p 315.4

In McNair v Hearst Corp, 494 F2d 1309, 1310 (CA 9, 1974),
the Seattle Post-Intelligencer had published the following
headline and first two paragraphs:

The High Cost of a Divorce

Five years ago, Barbara Evans hired a lawyer to
represent her in a divorce action.

Today the lawyer owns the home, worth between
$55,000 and $65,000, which Mrs. Evans received as
part of the 1966 divorce settlement ...

The court held that a reasonable reader could inter-
pret these words to mean that Mrs. Evans had paid her
attorney the value of her house for her divorce, although
the body of the article related the true circumstances that
the lawyer was paid $3000 for the divorce, and obtained
the house when the estranged husband failed to make
the payments:

Under Washington law whether an article is
true will depend on what it is read to say — on
how it would ordinarily be understood by persons
reading it [citation omitted]. The question here,
as we view it, is whether the article as a whole
can be said effectively to have eliminated the
impact of any false impression created at the
outset. In our judgment this question cannot here

4

1 Cooley, Torts, pp 409-410.

A-65

be answered as matter of law and remains a ques-
tion for the jury. [/d. }

In Las Vegas Sun, Inc v Franklin, 74 Nev 282, 286: 329
P2d 867 (1958), the Supreme Court of Nevada considered
a series of articles. The court said that the libelous state-
ments were “found, not in the body of the article, but in
its headline and tag-line. The headline read.

“Babies for sale. Franklin black market trade of
child told.”

The tag-line read.
“Tomorrow — Blackmail by Franklin.”

The body of the article factually recited the
manner in which Franklin had secured the relin-
quishment of a baby for adoption.

The ccurt considered the newspaper's argument “that
the headline and tagline cannot be considered apart from
the context in which they were used. Thus. they contend,
the headline must be qualified by and read in the light of
the article to which it referred, and the tagline must be
qualified by and read in the light of the subsequent
article to which it referred.” /d at 287. The court rejected
the argument, Stating:

The text of a newspaper article is not ordinarily
the context of its headline, since the public fre-
quently reads Only the headline. [Citations
omitted.] The same is true of a tagline or leader,
since the public frequently reads only the leader
without reading the Subsequent article to which it
refers. The defamation of Franklin contained in
the headline was complete upon its face. It was
not necessary to read the article in order that the
defamatory nature of the Statement be under-
stood or connected with Franklin. The same is
true of the tagline. [/d. }

A-66

Nor is it determinative here that the sting of the head-
line concludes with a question mark — “Is it Mafia?”:

A man cannot. libel another, by the publication

_ of language, the meaning and damaging effect of

which is clear to all men, and where the identity

of the person meant cannot be doubted, and then

escape liability through the use of a question

mark. [Spencer v Minnick, 41 Okla 613, 617; 139 P
130 (1914). ]

A defamatory statement, “He is a womanizer,” or “She
is a tramp,” would not become less so if phrased, “Is he a
womanizer?” or “Is she a tramp?”

lil

This is not a case where a plaintiff seeks to hold a
media defendant “liable for the reader's possible infer-
ences, speculations, or conclusions”® drawn from a
“straightforward” presentation of the facts. The headlines
and tag lines, and the persistently posed question, “Is it
Mafia?” suggested the inferences, speculations, and con-
clusions for the reader.

The jury could properly find that a reasonable reader
of the Detroit News could understand that the Pine Knob
Series not only conveyed the fourteen facts the trial
court found to be true, but also that Locricchio and Fran-
cell were guilty of a continuing course of criminal wrong-
doing generally associated with organized crime and
membership or association in the “Mafia,” including
involvements in the murders of Agnes Brush and Harvey
Leach, and an illegal money laundering scheme, and that
the communication was defamatory and false.

MALLETT, J., took no part in the decision of this case.

5 CAVANAGH, C. J., ante, p144.

A-67
MOTION [FOR SUMMARY JUDGMENT]

(State of Michigan — Circuit Court — County of Wayne)
(Proceedings of April 2, 1982)

(JOSEPH LORICCHIO [sic], et al, Plaintiff, -vs- THE DETROIT
NEWS, et al, Defendant — No. 80012 415 CZ)

BEFORE THE HONORABLE SUSAN D. BORMAN, JUDGE
Detroit, Michigan - Friday, April 2, 1982

APPEARANCES:
Mr. Jeremiah Kenney, on behalf of the Plaintiffs;
Mr. James Stewart, on behalf of the Defendants

x * *

(3) Detroit, Michigan
Friday, April 2, 1982

THE CLERK: Joseph Loricchio [sic] versus The

_—_——

Evening News.
THE COURT: Who's the moving party?
MR. STEWART: | am, your Honor, James Stewart on

behalf of the Detroit News and all defendants. This
is a motion for summary judgment, your Honor, as to
the plaintiff's libel claims alone. The basis for the
motion is the plaintiff's answers to our fourth set of
Interrogatories.

The claim is based. your Honor, the plaintiff's claims
are based on a series of articles in the Detroit News. We
have been here a number of times where I have
attempted to find out exactly what factual statements
the plaintiffs claim are false.

| have been unsuccessful on most of those occasions.

Finally, we have the court ordering forty-seven In-
terrogatories being answered, where we ask in
these articles what statements in these articles do you

A-68

claim are false. The response was the claims are not
based on any one false statement, but based on the
implication.

It’s a libel case, and I think what we now have is the
plaintiff has conceded that there is no (4) false state-
ments of fact based upon Interrogatory. The burden of
proof in a libel case is to show, for the plaintiff, that it
is capable of defamatory interpretation. And that it is
defamatory. Following that there must be proof that
there is a false statement of fact. And as to that false
statement of fact, they were published with actual
malice by the defendant.

Now, the plaintiffs claim that these articles, as a
whole, imply any number of nefarious limitations. For
the purpose of today’s argument we will concede that.
Still, without false statements of fact there isn't a libel
claim. An example I can give you, of this, I think, is a
report in a newspaper, A shot B. Certainly that could be
capable of defamatory interpretation. Murder, any
number of things. Perhaps it really was self defense.
A would get over, if he brought a libel case, the first
hurdle, that it’s defamatory. Sure it is. But if it’s not false
then it doesn't state a claim for libel.

THE COURT: I don’t think that that’s a comparable
example of the case at hand.

MR. STEWART: Okay, | think the Schultz case is a
comparable example. That was a Reader’s Digest rather
long article about the Hoffa disappearance.

THE COURT: I read the case. Don't bother going into
it. | just read it.

(5) MR.STEWART: Okay. Can I answer any ques-
tions? I'd like to point out, if | may, at the end, part of
what plaintiff had said was, “Well, we specified in our
Interrogatories to you certain statements, and these are
the statements we claim are false.”

They have attached an affidavit from Mr. Loricchio
and Mr. Francell that says essentially, among other
things, “I didn’t kill August Brush or Harvey Leach.”

A-69

Why don't they say, “You said. quote, Joe Loricchio
killed Harvey Leach?” Allege that and I can defend that.

THE COURT: | don't think the Hoffa case is on point
at all, because in the Hoffa case the judge was making a
ruling as a matter of law that plaintiff would not be able
to show actual knowledge for reckless disregard. This is
not the issue before this court.

MR. STEWART: But you see, your Honor, before you
even get to that...

THE COURT: The ruling...

MR. STEWART: That’s right. But to get to it you must
find that statement is false. Now, the Reader's Digest
article was quite a long article that said . .. that dis-
cussed the Hoffa disappearance. And Mr Schultz said,
“that implies that I was involved in a murder, the
murder of Jimmy Hoffa.”

(6) Fine, we will all agree with that, it certainly said
that. Then the court went to the one statement. Plaintiff
alleged the statement that was false in there. That state-
ment was this, “Probably the third person that Hoffa
thought he was going to meet was Lenny Schultz.”

He alleged that was false. Nobody in this case has
alleged a particular statement is false. They allege that
was false.

THE COURT: In the Schultz case I think there is defi-
nitely language that goes against your case. On page
five fifty-four the court goes into a long discussion of if
words are susceptible of different interpretations it’s for
the jury to say whether or not they were defamatory.
There's a whole long discussion about this.

MR. STEWART: | agree with that. but if | may...

THE COURT: And I think this case goes more against
you than supports your position. We're not dealing with
a question of whether or not...um... ah... whether
or not plaintiff will be able to show malice. Which was
the only issue before .. .

A-70

MR. STEWART: Judge Freeman.

THE COURT: ... Judge Freeman. And he ruled that
they wouldn't.

MR. STEWART: Only two comments on that. (7) First,
the language that you refer to that it’s for the jury as to
whether it’s capable of defamatory interpretation,
you're absolutely right. In the first instance it’s for the
trial court to say it could be construed in a defamatory
way. We went over that. And Judge Freeman said, “Okay,
now, it’s for the jury to say, was this interpreted in a
defamatory way.” Mr. Schultz was involved in the
murder of Hoffa.

Yes, there was a jury question. You have to get to the
second question, was anything in there false? And was
that published with actual malice? To have a determina-
tion of actual malice you have to have a determination
of falsity.

THE COURT: This whole discussion of different inter-
pretations points out the fact that the tenor of an
article can be defamatory rather than the specific state-
ment. And that is what we have been arguing about
through all these motions, whether or not ... and you
didn't cite any case that talks about a specific falsity.
You are talking about, ... the ... that’s the whole
thing plaintiffs are saying, it’s the tenor of the article.
That's what Judge Freeman is saying. That is what was
said, | think, in that Sanders case. They talk about the
tenor of the articles.

MR. STEWART: What Judge Freeman said, is (8) the
tenor of these articles is defamatory. Fair enough, it
was. He then said, “There is one statement involved
here that is an allegation of falsity.”

Now, when we look at that and see which was alleged
to be false, and we say, “Now, was that statement pub-
lished with actual malice?” That statement was not pub-
lished with actual malice.

A-71

THE COURT: | don’t know where you're getting that.
He talks about ... comment B talks about actual know-
ledge. That case is up On a motion as to whether or not
plaintiffs could show actual malice as a matter of law.
And, he said, “No, that’s not even before me. You didn't
even bring that.”

MR. STEWART: The point is. your Honor, to have that
claim of actual malice everybody has to concede it's
false.

THE COURT: | am Saying it could be interpreted. The
tenor of the articles could be interpreted as false.
Implying that this is a Mafia member. Implying that they
are criminals. The whole tenor of it. | think that is what
we have been talking abut with all these motions. The
tenor of the articles. The whole |. . viewed as a whole.
Viewed asa...

MR. STEWART: Absolutely, that’s what you do to
determine if it’s capable of defamatory interpretation.
(9) The next step in plaintiff's burden of proof is to
aliege and prove falsity. Now, that is what hap-
pened in Leonard Schultz's case. The first thing Judge
Freeman did is to say, “Is this capable of defamatory
interpretation?”

Reader's Digest took the position that it wasn't. All it
said is that Leonard Schultz was going to have lunch
with Jimmy Hoffa. Of course. Then he said, “Now, having
crossed that burden, the plaintiff's first burden of proof,
they have shown it’s defamatory, the next burden of
proof is is it false?”

The statement then, all the discussion, falsely dealt
with unfair comment is what they referred to, while you
are looking at that statement __

THE COURT: What is a defamatory statement? A
defamatory statement is a false statement.

MR. STEWART: No it is not. A defamatory statement
is a statement that makes people think less of you.

A-72

THE COURT: But truth is a defense, right?

MR. STEWART: No, your Honor, falsity is a requisite
for the plaintiff. Whether privileged or non-privileged,
as a constitutional matter now plaintiff must [sic, prove]
falsity.

THE COURT: | agree the plaintiff must prove falsity.
We are not at the trial. But you will also (10) agree that
truth is a defense. If you have told the truth there is no
way plaintiff can recover. You don't have to prove it, but
it is a defense, correct?

MR. STEWART: It’s a defense in the common-law, but
actually, your Honor, the constitutional law has changed
that now. It is plaintiff's burden to prove falsity.

THE COURT: There can be no defamation without
falsity.

MR. STEWART: There can be defamation when one
thinks less of another, which causes people to think
less, and to shun that person, he has been defamed.

THE COURT: But if that statement is true then it’s
not...

MR. STEWART: Well, | don’t know what to do, what
statements plaintiffs claim are false that the Detroit
News made about them. | know they think the entire
series implied certain things about them, but | dont
know what statements | have to defend. | don’t know
that. And I have tried repeatedly to find that out.

Where in a series of articles of hundreds of thou-
sands of words what factual statement the plaintiffs are
complaining about.

THE COURT: Well, let’s hear from the plaintiffs.

MR. KENNEY: Your Honor, first of all, we (11) have

told Mr. Stewart and his client... ah... Jeremiah
Kenney, your Honor, appearing on behalf of the plain-
tiffs. On numerous occasions we ... the tenor of the

articles depicting Mr. Francell and Mr. Loricchio as
Mafia figures involved in the murders of two individuals.

A-73

As having various and sundry criminal connections.
And we have supplied affidavits to this court that those
are false. Those imputations.

What Mr. Stewart wishes this court to rule is that
there must be a sentence or a word in those articles
that is in and of itself false. And that is not the law,
your Honor, as your Honor has already noticed from the
Schultz case. It can be the tenor of the articles that
imputes a false image about these individuals to the
plaintiff. And it is that which we are suggesting to the
court is the entire tenor of the series of articles which
are being complained of in our complaint, and amended
complaint.

If Mr. Stewart is right that you have to ... it is not the
law that you have to have a particular sentence that
says Joseph Loricchio is a Mafia member, to have a
defamatory, and an actionable defamatory libel case.

But if you say, for instance, “Joseph Loricchio denies
that he is a Mafia member, can you believe it?” It’s not a
statement, it’s a question that certainly imputes that
statement to the public. And it is that which the Schultz
case and every other case that has talked (12) about, in
fact, the defendants have cited, which talked about this.
And there is a recent case that we have just located,
your Honor, arising out of the State of Florida.

THE COURT: Federal case? .

MR. STEWART: It is a Federal case, your Honor. The
case is Caldwell versus Cromwell Collier Publishing
Company. It is cited at 161 Federal Reporter 2nd, 333. It
states, your Honor, it talks about the law of Florida, but
they observe, however, no substantial difference
between the law of Florida and that of other common-
law states.

“A libel is a compound of written falsity and mali-
cious publication. But the falsity may consist of
untrue imputation as well as direct statement.”

ai

A-74

What these defendants want us to do, and what we
have indicated we are unable to do at this particular
point in time, is to pick out...

THE COURT: Let me ask you something. What are
you waiting for here in taking depositions? This trial is
up in June?

MR. STEWART: Nothing. We're starting. Can | make a
point, Judge? The defendants ... the plaintiffs can
depose everybody at the Detroit News from now until
kingdom come, and it’s not going to tell them what they
(13) claim is false. There are statements in there they
claim are false. I'm not over here today to argue the...

THE COURT: I know you're not.

MR. STEWART: | just want to know what I have to
defend.

THE COURT: The Sanders case also, 331 Michigan
Reports. That talks about viewing the whole thing,
everything as a whole. And I’m sorry, but | don't agree
with your interpretation. | agree with that Florida case. |
agree with the Sanders case. | agree with the Schultz
case. And they talk about viewing the whole series as a
whole.

MR. STEWART: | don’t argue with you for a minute. To
determine whether it’s defamatory or not. The next
step is, is it false? That is what Judge Freeman said in
Schultz. That's all that happened in Sanders.

THE COURT: You show me in Schultz where Judge
Freeman said that? He talks about falsity. But in none of
these cases do they talk about specific statements of
falsity. Now, you show me in that Schultz case ... . And
here it is right here, where that is.

MR. STEWART: Sure. The reason is, in every case
we've had cited by the plaintiff, including the Leonard
Schultz case, here, the plaintiff is dealing with a large
newspaper article, or a Reader's Digest article. He (14)
complained about a particular statement that was false.
The Jimmy Hoffa story was along ... .

A-75

THE COURT: What about that Florida case?

MR. STEWART: I've never read it. your Honor, I’m
sorry.

THE COURT: I'm sorry, I don't agree with you. | have
not read that case either. But from the cases I have read
| don't think that your interpretation is correct.

MR. STEWART: You see, the statement in Leonard
Schultz’s case was a very long article, and the state-
ment is .

THE COURT: There’s only one mention about | conard
Schultz, and that was Jimmy Hoffa was supposed to go
meet him. And the implication was that he was involved
in the killing of Jimmy Hoffa.

MR. STEWART: Yes, and that was the statement they
looked at, that statement.

THE COURT: — Right.

MR. STEWART: All the cases we've dealt with are _..
isolate[d] statements that are made.

THE COURT: The judge in that case said that that
was Capable of a defamatory interpretation.

MR. STEWART: | agree. And | agree today.

THE COURT: Now, you show me. you show me (15) in
that case where they are talking about proving a specific
falsity there. You show me in that case where it supports
what you're saying, because I read the case. and | read
it carefully. But | would be happy to look at it.

MR. STEWART: I'll show you. What happened is they
were dealing with an article that was about this long
(indicating). As long as this case, that’s what Mr.
Schultz complained about. He said. “Reading that as a
whole, talking about Provenzano. al! these people
involved in the Hoffa murder . . .”

THE COURT: Well, | don’t think it’s any different than
a series of articles.

MR. STEWART: I will say to you today, for the purpose
of this argument I| agree. For the purpose of this argu-

a

'

A-76

ment it’s capable of defamatory interpretation. Let’s
assume we all agree. The next step is what is false? Is
that false?

THE COURT: The tenor of the article is false, and that
is all I can say.

MR. KENNEY: Your Honor...

THE COURT: I don’t want to hear any more argument
on it, because we're going over the same ground. | think
that plaintiffs are alleging that the whole tenor of the
article left certain impressions that they are claiming
are false. To-wit: Mafia ... .

(16) MR.STEWART: That's the upshot of this, your
Honor. The upshot may be this, we will be faced with a
libel case, perhaps, and the ruling is essentially this,
you can have a case where there is a series of abso-
lutely true statements that nobody disagrees with, and
that would support an action for libel, and this paper
would be subjected to judgment.

That is not the law of libel.

MR. KENNEY: That is not your Honor’s ruling. | will
present an Order.

THE COURT: I think | made my ruling clear. And |
don't agree with your interpretation. | don't think that
the cases cited support your argument either.

MR. STEWART: Thank you, your Honor.

MR. KENNEY: — Thank you.

A-77

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AS TO PLAINTIFFS’ LIBEL CLAIMS

(State of Michigan — Circuit Court — County of Wayne)

(Dated April 6, 1982)

(JOSEPH JUDEUS LOCRICCHIO and GARY FRANCELL, Plain-
tiffs, vs. THE EVENING NEWS ASSOCIATION, INC., a Michigan
Corporation, PETE WALDMEIR, BILL GILES, JEFF LADERMAN,
MICHAEL F WENDLAND, JEAN GADOMSKI, RICHARD WILLING,
ROBERT ANKENY, and JIM GRAHAM, Jointly and Severally,
Defendants — NO: 80-012-145 CZ; HON. SUSAN D. BORMAN)

At a session of said Court, held in the County of Wayne,
State of Michigan on April 2, 1982 [ TYPEWRITTEN]
APR 6 1982 [STAMPED].

PRESENT: HONORABLE SUSAN D. BORMAN,
Circuit Judge.

Upon the reading and filing of defendants’ Motion for
Summary Judgment as to Plaintiffs’ Libel Claims, and
the Court being otherwise fully advised in the premises:

IT IS HEREBY ORDERED that defendants’ Motion for
Summary Judgment as to Plaintiffs’ Libel Claims is
denied.

S/ SUSAN D. BORMAN
CIRCUIT JUDGE
Approved as to form:
By: JEREMIAH J. KENNEY (P 24810)
Attorney for Plaintiffs
2000 Buhl Building
Detroit, Michigan 38226 [sic]
By: JAMES E. STEWART (P 23254)
Attorney for Defendants
1881 First National Bldg.
Detroit, Michigan 48226

(Certification Omitted)

A-78
ORDER [DENYING CERTIFICATION OF QUESTION FOR APPEAL}

(State of Michigan — Circuit Court — County of Wayne)
(Dated May 24, 1982)

(JOSEPH JUDEUS LOCRICCHIO and Gary Francell, Plaintiffs,
vs. THE EVENING NEWS ASSOCIATION, INC., a Michigan Cor-
poration, PETE WALDMEIR, BILL GILES, JEFF LADERMAN,
MICHAEL F WENDLAND, JEAN GADOMSKI, RICHARD WILLING,
ROBERT ANKENY, and JIM GRAHAM, Jointly and Severally,
Defendants — NO: 80 012145-CZ; HON. SUSAN D. BORMAN)

At a session of said Court, held in the City-County
Building, City of Detroit, County of Wayne, State of
Michigan on May 24, 1982 [HANDWRITTEN]

MAY 20 1982 [STAMPED].

PRESENT: HON. SUSAN D. BORMAN, CIRCUIT JUDGE.

Upon the reading and filing of defendants, THE
EVENING NEWS ASSOCIATION, INC., et al., Motion for Settle-
ment of Concise Statement of Facts and Proceedings and
to Certify Question for Appeal, and upon reading and
filing of plaintiffs’ objections thereto, the parties having
appeared through their respective counsel in open
court, and the court being fully advised in the premises:

IT IS HEREBY ORDERED that defendants’ Motion to Cer-
tify Question for Appeal is denied.

/s/ HONORABLE SUSAN D. BORMAN, Circuit Court Judge

Approved as to form
BY: /s/ JEREMIAH J. KENNEY (P 24810), Attorney for
Plaintiffs, 2000 Buhl Building, Detroit, Michigan 48226;
By: /s/ JAMES E. STEWART (P 23254), Attorney for
Defendants, 1881 First National Building, Detroit,
Michigan 48226.

(Certification Omitted )

|

ge dUlrrr

A-79

ORDER [GRANTING INTERLOCUTORY APPLICATION
FOR LEAVE TO APPEAL]

(State of Michigan — Court of Appeals)
(Certified August 5, 1982)

(JOSEPH JUDEUS LOCRICCHIO, and GARY FRANCELL,
Plaintiffs-Appellees, v THE EVENING NEWS ASSOCIATION,
INC., a Michigan corporation, PETE WALDMIER [sic], BILL
GILES, JEFF LADERMAN, MICHAEL F. WENDLAND, JEAN
GADOMSKI, RICHARD WILLING, ROBERT ANKENY, and JIM
GRAHAM, Jointly and Severally, Defendants-Appellants -
No. 64729; L.C. No. 80-012-415-CZ)

AT A SESSION OF THE COURT OF APPEALS OF THE STATE OF
MICHIGAN, Held at the Court of Appeals in the City of
Lansing, on the 3rd day of August in the year of our
Lord one thousand nine hundred and eighty-two.

Present the Honorable: Robert J. Danhof, C.J., Presid-
ing Judge; William R. Beasley, Walter P. Cynar, Judges.

In this cause an application for leave to appeal and
motion for immediate consideration are filed by defen-
dants-appellants, and an answer in opposition thereto
having been filed, and due consideration thereof having
been had by the Court,

IT IS ORDERED, that the motion for immediate con-
sideration be, and the same is hereby GRANTED.

IT IS FURTHER ORDERED that the application be, and
the same GRANTED on condition that all acts required
by subrules 803.2 and 803.5 be performed within 20

days after the date of the Clerk’s certification of this
order.

(Certification Omitted )

———

A-80
OPINION

(State of Michigan — Court of Appeals)
(Dated August 24, 1983)

(JOSEPH JUDEUS LOCRICCHIO and GARY FRANCELL,
Plaintiffs-Appellees, v EVENING NEWS ASSOCIATION, INC.,
PETE WALDMEIR, BILL GILES, JEFF LADERMAN, MICHAEL F.
WENDLAND, JEAN GADOMSKI, RICHARD WILLING, and
ROBERT ANKENY, Defendants-Appellants — No. 64729)

BEFORE: V. J. Brennan, P.J.,
M.H. Wahls and M. Dodge’*, JJ.

PER CURIAM

This lawsuit arises out of a series of eleven allegedly
defamatory articles published in the Detroit News
between April 27, 1977 and April 25, 1979 concerning the
activities of plaintiffs Locricchio and Francell with
regard to their development and operation of the Pine
Knob entertainment complex. Defendant, the Evening
News Association, Inc., publishes the Detroit News,
defendant Giles is its editor and Vice-President, and the
remaining defendants are reporters, staff writers, and
columnists for the Detroit News.

On April 3, 1980, plaintiffs filed a ten-count complaint,
the first three counts of which allege a cause of action
for libel based on the news articles. The articles, con-
sisting of in excess of 10,000 words, accompanied the
complaint. On October 7, 1981, defendants filed inter-
rogatories requesting, among other things, that plain-
tiffs identify with particularity each and every
statement claimed to be defamatory, and each and
every statement claimed to contain false statements of
fact in each publication relied upon by plaintiffs in sup-

* Circuit Judge, sitting on the Court of Appeals by assignment.

A-81

port of their libel claims. Plaintiffs responded in part as
follows:

“

[T]he defamation allegations contained in said
Complaint are not necessarily based on a false
statement(s) in any one particular article, but
rather, that the entire series of articles, in their
entirety, injured the reputations of plaintiffs as the
same represented a false porirayal, implication,
imputation and/or insinuation that plaintiffs,
among other things, are or were members and/or
associates of an organized criminal society, other-
wise

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0052%3A1. Public record. Not legal advice.