Traverse City Record-Eagle

Elmwood Township

February 4, 2009

Court overturns verdict in defamation case

Ex- Elmwood supervisor sued three residents in 2005

By MELISSA DOMSIC

GREILICKVILLE -- An appeals court overturned a jury verdict that found three Elmwood Township residents defamed former township Supervisor Derith Smith.

The Michigan Court of Appeals this week ruled that an anonymous mailing sent to township residents in 2004 did not meet standards for defamation of a public figure.

"A jury verdict in a defamation case involving a public figure may only be founded upon clear and convincing evidence of actual malice," appeals court judges stated in their ruling.

The judgment reversed a Leelanau County jury's November 2006 ruling that required former township Trustee John Stanek, former township Supervisor Noel Flohe and resident Donald Barrows to pay Smith more than $100,000 and publicly apologize for the mailing.

Smith's attorney plans to appeal to the state Supreme Court.

Smith, a Republican, lost to challenger Jack Kelly in last year's primary election for supervisor. Kelly then defeated Barrows, a Democrat, in the November election.

Smith sued the three in July 2005. The case involved an anonymous mailing to township residents sent during Smith's successful 2004 race to unseat Flohe as supervisor.

The mailing included a disciplinary report from Smith's personnel file from her time as Suttons Bay village clerk. The mailing also contained a handwritten caption that questioned Smith's actions.

The document's allegations of wrongdoing were deemed unfounded, and the jury in 2006 ordered that Stanek, Flohe and Barrows pay a combined $107,000 to Smith, including $12,000 to help fund her 2008 re-election campaign.

But the appeals court ruled that, "Defendants cannot be held liable for the reliance on this written memorandum and the failure to investigate the allegations contained within the document does not constitute the reckless disregard that underlies actual malice."

Stanek and Flohe did not return calls for comment. Barrows gave no comment on the case.

Smith said she initially thought of jurors after reading the appeals court decision.

"I just remembered that jury and how careful they were," she said. "They sat through days of testimony, going through facts ... and their conclusion was that a public apology was required."

But Mike Swogger, Barrows' attorney, said such a case should be decided by an independent review by the courts, not a jury.

He referred to the appeal ruling's statement: "This independent review is premised on the fear that juries might give 'short shrift to important First Amendment rights,' and reflects the inherent doubt that juries will recognize the line between unconditionally guaranteed speech and legitimately regulated speech."

Swogger called the decision a "victory for free speech."

"If you look at it in kind of a bigger picture, when a public figure is subject to criticism and ridicule, the ability of a public figure to sue has to be at a higher standard," he said. "Ultimately, it's in the public's best interest to allow open and uninhibited debate, and that is what this court says in its opinion."

Smith's attorney, Grant Parsons, said the appeals court didn't take into consideration further evidence that the defendants posted the document in public areas, took it to public meetings and referred to it in their recall petition to oust Smith, an effort that failed.

"They suggested this showed illegal conduct by her, when in fact, Suttons Bay had found there was absolutely no illegal conduct," Parsons said.

Parsons said he plans to appeal to the Michigan Supreme Court and if it's not taken up there, said he'd pursue a review by the U.S. Supreme Court.

"As the political landscape is changing up here, and some of the old boy interests that have controlled politics, if they don't get their way fair and square, they start these defamatory communications going," Parsons said. "In this case, we felt we had a precedent-setting case that would be a way to clean up bad campaigns and really bad governmental practices by some of the people like the defendants in this case."

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