Dadd v. Mount Hope Church

Order Michigan Supreme Court
Lansing, Michigan

April 7, 2010 Marilyn Kelly,
Chief Justice

139223 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
JUDITH D. DADD, Diane M. Hathaway,
Plaintiff-Appellant, Justices

v SC: 139223
COA: 278861
Eaton CC: 05-000878-NO
MOUNT HOPE CHURCH AND
INTERNATIONAL OUTREACH
MINISTRIES and DAVID R. WILLIAMS,
Defendants-Appellees.

_________________________________________/

On January 13, 2010, the Court heard oral argument on the application for leave to
appeal the April 9, 2009 judgment of the Court of Appeals. On order of the Court, the
application is again considered and, pursuant to MCR 7.302(H)(1), in lieu of granting
leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE
the jury verdict for plaintiff.

The trial court properly instructed the jury on false light invasion of privacy,
which included an instruction that “plaintiff must prove by a preponderance of the
evidence that the defendant must have known or acted in reckless disregard of the falsity
of the information and the false light in which the plaintiff would be perceived.” The
jury found that the defendant acted with malice in making the statements which were the
same ones alleged to have been defamatory. Because this finding of malice negates the
qualified privilege that may exist in the context of the plaintiff’s claims for libel and
slander,1 any error by the trial court in failing to instruct the jury on a qualified privilege
for plaintiff’s libel and slander claims is harmless. The defendants’ remaining claims of
error left unaddressed by the Court of Appeals are meritless.

MARKMAN, J. (concurring in part and dissenting in part).

1
Van Vliet v Vander Naald, 290 Mich 365, 371 (1939) (“Where it appears that the
occasion is subject to a qualified privilege, the burden is upon the plaintiff to prove the
untruth of the statements and actual malice.”).
 2

I concur in the reversal of the judgment of the Court of Appeals with respect to
plaintiff’s false light claim. However, I dissent from the remainder of the order and would
otherwise affirm the Court of Appeals and remand for a new trial. Plaintiff here sued her
former church and pastor for negligence over an injury she sustained while engaged in
one of the church’s religious practices. After the pastor twice communicated his strongly
negative views about plaintiff and her lawsuit — at a church leadership rally and in a
letter written to a church prayer group — plaintiff again sued the church and pastor, this
time bringing claims for defamation. A jury returned a verdict for plaintiff on claims of
negligence, slander, libel, and false light. The Court of Appeals unanimously reversed on
all but the negligence claim, which claim is not before this Court. The principal issue
here is whether the trial court reversibly erred in failing to instruct the jury that
defendant-pastor was entitled to a ‘qualified privilege’ as to his communications with his
church. Because I agree with the Court of Appeals that the trial court did err, and thereby
failed to give proper consideration to the speech interests of defendant, I respectfully
dissent.

I. FACTS & HISTORY

Defendant Mount Hope Church is an Assembly of God church in the Lansing area.
Defendant David Williams is the church’s pastor. In accordance with one of the church’s
core religious practices, it is customary at services and other gatherings for the pastor to
call congregants to the altar to be prayed over. Sometimes, those who are prayed over
fall to the ground, a phenomenon referred to as being “slain in the spirit.” While there
are ushers present at the altar to catch people, church members believe that a person who
is “slain” in the Holy Spirit will not be hurt while engaged in this practice.

On July 18, 2002, plaintiff, who was at the time an active member of the church,
was “slain in the spirit” and fell backward, injuring her head on the floor. A few months
after the fall, when her medical bills began to accumulate, she inquired at the church
whether it would pay for bills relating to the fall. Plaintiff was told that the church’s
insurance would pay only $5,000. Plaintiff then quit the church and filed a complaint
seeking damages for negligence and gross negligence against the church and minister.

After the complaint was filed, defendant Williams spoke about plaintiff’s lawsuit
from the pulpit for about four minutes at a “leadership rally,” attended by church
“leaders, workers, and members.” At this event, defendant aggressively questioned the
merits of the lawsuit, as well as plaintiff’s moral and spiritual character for bringing the
legal action against her church, specifically stating that he thought that plaintiff had
apparently “renounced her faith for mammon.”

About three months later, defendant sent a letter to members of the “120-prayer
group,” a fifty-member church organization to whom he sent regular correspondence
asking for their prayers on matters of concern to the church. One of the primary
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requirements of this group was confidentiality. In this letter, defendant again forcefully
denounced the lawsuit and plaintiff’s moral and spiritual character, referring to her
throughout as “the Accuser and Plaintiff,” and asserting that he believed that she would
be prosecuted for insurance fraud.

Based on defendant’s statements, plaintiff filed an amended complaint including
new claims for slander, libel, and false light. The trial court subsequently denied
plaintiff’s motion for partial summary disposition because it found that defendants
“arguably” possessed a ‘qualified privilege’ regarding the challenged communications.
Following plaintiff’s presentation of her evidence at trial, defendant moved for a directed
verdict, reasserting in regard to the defamation claims that a ‘qualified privilege’ exists.
The court denied this motion. Finally, at the close of proofs, the court concluded that no
privilege applied and refused defendants’ requested instruction. Accordingly, instead of
directing the application of a malice standard to ‘privileged’ communications, the court
directed the application of a negligence standard to ‘unprivileged’ communications,
stating as follows:

The plaintiff has the burden of proving that the defendant was
negligent in making the statement. When I use the word negligent I mean
the failure to do something which a reasonably careful person would do.
This instruction was twice reread to the jury at its request on the second day of
deliberations. The jury was also provided with an 11-page verdict form, which asked the
jurors to answer 53 questions that had been approved by both parties under defendants’
assumption that the trial court would give an instruction on ‘qualified privilege.’

The jury returned a verdict for plaintiff on her claims of negligence, slander, libel,
and false light. In the verdict form, with respect to the defamation claims, the jury
affirmatively answered the question, “Did the defendant have knowledge that the
statement was false or did defendant act with reckless disregard as to whether the
statement was false?” The judgment reflected a verdict awarding plaintiff $40,000 for
her negligence claim, $23,750 for her claim of false light, $50,000 for her claim of
slander, and $200,000 for her claim of libel. With costs and fees, plaintiff’s judgment
totaled $317,255.68.

Defendants appealed as of right, and the Court of Appeals unanimously reversed
the jury’s verdict on plaintiff’s defamation claims after finding that the trial court erred in
failing to find that the statements were subject to a ‘qualified privilege’ and in instructing
the jury accordingly. Dadd v Mount Hope Church, unpublished opinion of the Court of
Appeals, issued April 9, 2009 (Docket No. 278861). The panel further determined that
this error was not harmless:
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This Court presumes that the jurors followed the instructions. Here,
the jury was instructed to apply a negligence standard in determining
liability for defamation claims. Thus, regardless of an additional question
on the jury verdict form, this Court must presume that the jury followed the
trial court’s instructions. Further, the jury should have been instructed that
“defendant had a ‘qualified privilege’ to communicate information.” [Id. at
23, citations omitted.]
This Court directed that oral argument be heard on plaintiff’s application for leave to
appeal, and argument was heard on January 13, 2010.

II. STANDARD OF REVIEW

Defendants sought a ‘qualified privilege’ jury instruction and objected to the trial
court’s decision denying this. The issue is thus preserved for appeal. MCR 2.516(C).
We review claims of instructional error de novo, examining the instructions as a whole to
determine whether there is error requiring reversal. Case v Consumers Power Co, 463
Mich 1, 6 (2000). We will only reverse for such error where failure to do so would be
inconsistent with substantial justice. MCR 2.613(A).

III. ANALYSIS

A. DEFAMATION

To establish a defamation claim in Michigan, a plaintiff must show: (1) a false and
defamatory statement concerning the plaintiff; (2) an unprivileged communication to a
third party; (3) fault amounting to at least negligence on the part of the publisher; and (4)
either actionability of the statement irrespective of special harm or the existence of
special harm caused by publication. Rouch v Enquirer & News II, 440 Mich 238, 251
(1992). After the United States Supreme Court in Gertz v Welch, 418 US 323, 347
(1974), invited states to “define for themselves the appropriate standard of liability for a
publisher or broadcaster of defamatory falsehood injurious to a private individual,” this
Court adopted negligence as the default standard of liability in Michigan. Rouch v
Enquirer & News I, 427 Mich 157, 195 (1986).

B. ‘QUALIFIED PRIVILEGE’

However, a plaintiff’s burden in a defamation claim may be considerably altered
once the defendant raises a defense of privilege. Conceptually, this defense should be
familiar to any student of tort law, as it relates to “[t]he ultimate problem . . . common
to all areas of the law of torts” — “the balancing of one man’s interests against another’s
acts.” Lawrence v Fox, 357 Mich 134, 136-137 (1959). “The great underlying principle
upon which the doctrine of privileged communication stands, is public policy.” Bacon v
 5

Michigan Central R Co, 66 Mich 166, 169 (1887). “The term privilege, then, having
such origins, relates to a situation or occasion in which the importance of the criticism
uttered by the defendant . . . justifies a modification, or, indeed, a withdrawal, of the
protection normally afforded our citizens.” Lawrence, 357 Mich at 137-138.

In defamation law, there are two classes of privileged communications. “There are
communications which are absolutely privileged; and there are communications which
have a ‘qualified privilege.’” Trimble v Morrish, 152 Mich 624, 627 (1908). While an
absolute privilege applies only in those situations in which the public interest is at its
highest, a class “restricted to narrow and well-defined limits,” as Bacon stated over a
century ago:

‘Qualified privilege’ exists in a much larger number of cases. It
extends to all communications made bona fide upon any subject-matter in
which the party communicating has an interest, or in reference to which he
has a duty, to a person having a corresponding interest or duty. And the
privilege embraces cases where the duty is not a legal one, but where it is of
a moral or social character of imperfect obligation. [Bacon, 66 Mich at
170.]
In deciding whether a qualified privilege exists, courts of this state have consistently
applied the rule that “the occasion determines the question of privilege . . . .” Bennett v
Stockwell, 197 Mich 50, 54 (1917) (emphasis added); see also, Weeren v Evening News
Ass’n, 379 Mich 475, 509 (1967); Parks v Johnson, 84 Mich App 162, 172 (1978).
Indeed, this Court has repeatedly emphasized, “The question of privilege is to be
determined by the occasion and not the language used.” Westerhouse v De Witt, 215
Mich 295, 299 (1921); see also, Lawrence, 357 Mich at 139; Fortney v Stephan, 237
Mich 603, 609 (1927).

Church-related occasions have regularly been found to be subject to a ‘qualified
privilege.’ See Van Vliet v Vander Naald, 290 Mich 365 (1939) (holding that publishing
a church tribunal’s findings in the church’s official newspaper was a privileged
occasion); Westerhouse, 215 Mich at 299 (holding that a “special meeting” called to
reconcile two church members was a privileged occasion); Konkle v Haven, 140 Mich
472 (1905) (holding that church members writing a letter about a former pastor to
members of another church was a privileged occasion); and Howard v Dickie, 120 Mich
238 (1899) (holding that a conference electing church trustees was a privileged occasion).
These occasions were all subject to a ‘qualified privilege’ because the circumstances
were such that the speaker had an interest or duty to communicate otherwise defamatory
statements to those having a corresponding interest or duty, whether of a legal, moral or
social character.
 6

The defendant has the burden of proving the existence of a ‘qualified privilege.’
Lawrence, 357 Mich at 141. If he carries this burden, he “rebuts the prima facie
inference of malice arising from the publication of matter prejudicial to the character of
the plaintiff, and throws upon [the plaintiff] the onus of proving malice in fact.” Bacon,
66 Mich at 172. The defendant is then entitled to a “presumption . . . that [he] acted in
good faith and with proper motive.” Raymond v Croll, 233 Mich 268, 274 (1925). Thus,
the defense of ‘qualified privilege’ is of considerable value to a defendant because it: (1)
rebuts the inference of malice from the defamatory statements, (2) clothes the defendant
in a presumption of good faith, and (3) increases the plaintiff’s burden by requiring the
plaintiff to show that the defendant acted with malice, instead of merely negligence.

However, as its nomenclature suggests, the ‘qualified privilege,’ while of
considerable force, is not absolute; rather, it is subject to a condition, “the condition being
its exercise without abuse.” Lawrence, 357 Mich at 141. Abuse of the privilege is found
where the defendant has acted with “actual malice, in the sense of oblique design or bad
faith.” Mundy v Hoard, 216 Mich 478, 492 (1921) (citation omitted). Abuse may also
arise “if the extent of the publication be excessive.” Smith v Smith, 73 Mich 445, 446
(1889). In either case, the privilege is destroyed.

The question of whether the statements were made at a privileged occasion is for
the court; the question of whether the privilege was abused is “for the jury, under proper
instructions, and with respect to it the plaintiff carries the burden of proof.” Lawrence,
357 Mich at 144.

In summary, the following principles guide a qualified privilege analysis in
Michigan. First, the defense of qualified privilege should be applied where
circumstances indicate that the importance of free and uncensored communication
outweighs an individual’s right in tort. Second, the defense is determined by the
particular occasion of the communication and attaches where circumstances indicate that
statements were made in good faith between persons who have a shared duty or interest
in the subject matter. Third, the significant protections provided to a defendant by the
defense are lost if plaintiff proves to the jury that the defendant abused the privilege.

C. APPLICATION OF ‘QUALIFIED PRIVILEGE’

When these legal principles are applied to the instant case, I agree with the Court
of Appeals that the trial court erred as a matter of law in refusing to instruct the jury that
defendant’s statements were entitled to a ‘qualified privilege.’ To begin with, applying a
qualified privilege in these circumstances is altogether consistent with the doctrine’s
underlying purpose of protecting communications that have social value and in which
there are significant speech interests. Indeed, the “occasions” here at which defendant
spoke are prototypical occasions to which the qualified privilege was intended to apply.
The instant circumstances — a pastor communicating with his flock about a lawsuit that
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questioned the integrity of a religious practice, threatened to harm the church financially,
and damaged the pastor’s professional reputation — implicate multiple important social
values, any one of which might well support the application of the privilege.

First, there is social value and a significant speech interest in communications
made by a pastor to his congregation. Specifically, there is value in a pastor’s passionate
communications about his faith both from the pulpit and in a letter to those under his
spiritual direction who similarly care deeply about their faith. The importance of this
type of religious expression “justifies a modification . . . of the protection normally
afforded” an individual. Lawrence, 357 Mich at 138. This is not because the individual’s
interests are not significant, but because the stakes for society are so consequential. That
is, the public has an interest in ensuring that its religious leaders can express their
spiritual convictions within the context of the church organization freely and vigorously
without “[f]ear of large verdicts in damage suits for innocent or merely negligent
misstatement, [or] even fear of the expense involved in their defense . . . .” Time, Inc v
Hill, 385 US 374, 389 (1967). The United States Supreme Court has often referred to
this danger of self-censorship as a “chilling effect.” Nike, Inc v Kasky, 539 US 654, 683
(2003) (Breyer, J, dissenting). Religious leaders are entitled to feel passionately about
the values and practices of their churches, and they are entitled to communicate these
sentiments to those within their churches who are also passionately committed about
these values and practices. Defendant testified to the spiritual implications of plaintiff’s
lawsuit, explaining that plaintiff “was accusing the Holy Spirit of slaying her, bringing
her injury, and she was accusing the members of our church of not showing her care and
concern. That, that would be an issue to the church.” While there is no absolute
privilege for anything that might be said in this environment, there is a qualified
privilege for statements made on such an occasion, and defendant was entitled to have
this privilege clearly communicated and explained to the jury.

Second, there is social value and a significant speech interest in communications
made in the context of litigation. Defendant was not just a pastor speaking about matters
of significance to his church and his faith, but he, along with his church, had been named
as a defendant in a lawsuit. Civil defendants, like the pastor here, are entitled to respond
passionately to litigation directed toward them and toward institutions to which they are
deeply attached. They are entitled to be offended by such litigation and to be offended by
persons who bring such litigation, and they are also entitled to communicate these
sentiments within appropriate channels and on appropriate “occasions.” They are not
limited in their responses to finely-crafted, lawyer-like statements. Concomitantly, a civil
plaintiff, by undertaking a lawsuit against another, must expect that a defendant’s
response will be harsh and critical. They must expect that a defendant will take such
lawsuit personally. The legal backdrop of this case is an important factor in the balancing
of interests that shapes the ‘qualified privilege’ because everything defendant said was
directly and exclusively related to plaintiff’s lawsuit, and it was in communicating about
this lawsuit in his own idiom that defendant was subjected to even greater liability. The
 8

public has an interest in ensuring that parties to litigation can express views about the
merits of a lawsuit in good faith and on a proper occasion without fear of exposure to
additional liability. Moreover, the particular lawsuit in this case carried substantial
financial implications for defendant’s church, and presumably for defendant’s continued
association with that church. Defendant was in a position analogous to a CEO of a
company subject to a lawsuit, who not only has a legal duty to report liabilities to his
shareholders, including exposure to damage awards, but also, to the extent he believes
appropriate, to explain and justify his management. See Hollowell v Career Decisions,
Inc, 100 Mich App 561, 575-576 (1980) (defendant-corporate officer “was entitled to a
‘qualified privilege’ in the statement made at the board meeting regarding the
performance of [the company]”). Once again, while there is no absolute privilege for
anything that might be said in this environment, there is a qualified privilege for
statements made on such an occasion, and defendant was entitled to have this privilege
clearly communicated and explained to the jury.

Third, there is social value and significant speech interests in communications
meant to defend one’s professional reputation. This is particularly true for a member of a
profession, such as is defendant, which is dependent on a person’s moral standing and
integrity within the community. Plaintiff’s lawsuit directly called into question
defendant’s professional prerequisites to be the pastor of his church. Thus, it seems
entirely appropriate for defendant to try to defend his reputation by forcefully presenting
his side of the story to those in the church who are essentially his employers. Yet again,
while there is no absolute privilege for anything that might be said in this environment,
there is a qualified privilege for statements made on such an occasion, and defendant was
entitled to have this privilege clearly communicated and explained to the jury.

I emphasize that the two “occasions” on which the statements in controversy were
made here are exactly those contemplated as justifying the ‘qualified privilege’ in the
first place. On the first of these “occasions,” defendant spoke from the pulpit at a
“leadership rally” that was a regularly scheduled event attended by the lay leadership of
his church. On the second “occasion,” he wrote a letter to a church prayer group for the
purpose of eliciting prayers for the church. These “occasions” consisted of regular and
ordinary occurrences in the life of the church. Defendant did not invent these forums for
the purpose of making defamatory statements about plaintiff, and there is nothing
surrounding these circumstances to suggest that his statements were not sincerely-felt and
made in good faith. Moreover, at these “occasions,” the interests of the speaker and of
the audience were perfectly aligned. That is, defendant did not make his statements to
passers-by on the street, or to the Lansing State Journal, or a television program watched
by people having no direct interest in the lawsuit. Rather, he communicated only with
people who shared a deep commitment to the church’s religious practices, its financial
well-being, and its standing in the community. When we apply the governing rule that
the privilege is determined “by the occasion and not the language used,” Westerhouse,
 9

215 Mich at 299, it is incomprehensible how these two events could not be deemed
occasions subject to a ‘qualified privilege.’

The trial court did not reach this same conclusion because it did not engage in a
proper analysis of whether the “occasions” at issue were privileged by considering the
totality of the circumstances, the whole “stage” as it were. Lawrence, 357 Mich at 139.
Instead, it was distracted by inquiries concerning the audience, specifically treating as
dispositive whether the audience included only church members, and whether these
members were all truly “decision makers.” While the nature of the audience constitutes
an important consideration in determining the existence of a ‘qualified privilege,’ none of
the cases in which this privilege has been recognized in a church-related setting has
engaged in these kind of inquiries. See e.g., Van Vliet, 290 Mich at 367 (statements
subject to ‘qualified privilege’ even though they were disseminated beyond local church
members and beyond church “decision makers”). I respectfully believe the trial court
erred as a matter of law in concluding that the privilege did not apply and in failing to
instruct the jury on this defense.

D. INSTRUCTIONAL ERROR

The majority concludes that any failure by the trial court to instruct the jury on a
‘qualified privilege,’ even if error, is “harmless” in light of the fact that the jury was
instructed to apply an “actual malice” standard to plaintiff’s false light claim and found
defendant liable for the same statements that were alleged to be defamatory. I
respectfully disagree.

First, the Court of Appeals correctly noted that, as to the defamation claims, the
jury was instructed to apply a negligence standard, one that establishes a significantly
lower threshold than the malice standard that applies to the ‘qualified privilege.’ As the
Court of Appeals stated, “there is a clear difference between proving ‘something which a
reasonably careful person would do’ and proving ‘defendant had knowledge that the
statement was false, or that the defendant acted with reckless disregard as to whether the
statement was false.’” Dadd, slip op at 22-23. The Court of Appeals also observed that
the jury twice asked for reinstruction on this issue and thus heard the negligence
instruction three times. Id. Presuming that jurors follow their instructions, Dep't of
Transportation v Haggerty Corridor Partners, 473 Mich 124, 178-179 (2005), the Court
of Appeals concluded that the jury determined defendants’ liability by applying a
negligence standard, not the malice standard they should have applied. Dadd, slip op at
24.

Second, because defendants were entitled to a ‘qualified privilege,’ “the
presumption [was] that the defendant [had] acted in good faith and with a proper motive.”
Raymond, 233 Mich at 274. As Raymond explained, this presumption affords significant
protection to a defendant.
 10

To overcome the presumption of good faith the circumstances must
be such as to show that the defendant was actuated by a bad motive, which
led him to take advantage of the occasion to injure the plaintiff. The court
should not permit dishonesty of purpose to be lightly inferred from acts
which are just as consistent with good faith as with bad faith. If the
circumstances relied on as showing malice are as consistent with its
nonexistence as with its existence, the plaintiff has not overcome the
presumption of good faith, and there is nothing for the jury. [Id. at 275-
276.]
Thus, this presumption in favor of defendant throws on plaintiff a heavy burden to even
reach the jury. While the false light instruction at least correctly mentioned that plaintiff
bore the burden on the malice standard in the context of that claim — something that the
verdict form did not do on the defamation claim — this instruction does not cure the
primary error brought about by the trial court’s conclusion that the ‘qualified privilege’
was inapplicable. That is, in ruling on defendants’ motion for directed verdict, the trial
court should have viewed the evidence with a strong presumption of good faith in favor
of defendants in determining whether plaintiff had met her burden to maintain the
defamation claims. The trial court should have been mindful that “a plaintiff does not
sustain the burden of proof which is cast upon him by merely giving evidence which is
equally consistent with either view of the matter in issue [i.e., malice].” Id.

In this analysis, the following questions would have been relevant: Was
defendant’s reason for taking to the pulpit at the leadership rally and writing his regular,
confidential letter to a leadership prayer group to defame plaintiff? Or, were there other
equally plausible purposes for his statements at these occasions — for instance, his
interest in his reputation and that of his church, his duty to inform members about matters
of financial concern to the church, or his duty to reinforce the spiritual commitments of
those under his guidance to church practices that had been called into question by the
lawsuit? If the trial court had found that defendant’s acts were “just as consistent with
good faith as with bad faith,” then plaintiff would not have carried her burden. However,
because of its threshold error in determining that the ‘qualified privilege’ did not apply,
the trial court never engaged in any such analysis. Defendants simply did not receive the
very substantial benefit of the doubt afforded to them by the presumption of good faith
attached to the ‘qualified privilege.’

Third, even assuming, that plaintiff did meet her burden and that the defamation
claims were properly before the jury, the false light instruction on the definition of
“actual malice” did not cure the trial court’s error as to the defamation instructions. The
United States Supreme Court has defined “actual malice” as acting “with knowledge that
[a defamatory statement] was false or with reckless disregard of whether it was false or
not.” New York Times v Sullivan, 376 US 254, 280 (1964). The malice standard
 11

applicable in cases of ‘qualified privilege’ under Michigan law has been variously
defined as: “actual malice, in the sense of oblique design or bad faith;” Mundy, 216 Mich
at 492 (citation omitted); or a “showing [of] mala fides in the defendant — that is, that
the occasion was made use of colorably, as a pretext for wantonly injuring the plaintiff.”
Howard, 120 Mich at 239 (citation omitted). Under the proper malice instruction, the
jury should have been instructed as to these standards, and directed to consider “whether
the defendant used the occasion for the sole reason and purpose which conferred the
privilege upon his statement [in the first place].” Mundy, 216 Mich at 492.

The jury here was not so instructed. Indeed, it never even heard the term
“malice,” as it was not used in either the instruction on false light or in the verdict form
on defamation. This error was not rendered harmless where the jury was instructed on a
general definition of “malice” in the context of a different claim, and where it never
heard the term, much less what it meant, in the particular context of ‘qualified privilege.’
Moreover, the refused instruction did not present the only opportunity to apprise the jury
of the purpose and effect of the ‘qualified privilege,’ which was arguably dispositive
here. “[I]t remains for the court to instruct the jury as to the nature and legal effect of the
‘qualified privilege’ and its bearing upon their consideration of the facts in issue.” Bolton
v Walker, 197 Mich 699, 706 (1917). Because the trial court’s error in this regard, the
jury was supplied with no guidance as to the relevance of the contextual background for
defendant’s communications, defense counsel was prevented from offering closing
arguments in which he could have sought to explain this relevance, and plaintiff’s
counsel was able thereby to avoid responding to defendant’s arguments, thus signaling to
the jury that such context was of considerable significance in resolving this case. Simply
put,the jury never heard why the “occasions” at issue were privileged, what “malice”
requires where the ‘qualified privilege’ obtains, and where the burden of proof lies in
such cases.

Finally, these considerations only begin to suggest what was lost to defendants
because of the trial court’s error in not instructing on the ‘qualified privilege.’ In the
jury’s eyes, defendant was effectively placed “upon the same footing as a libeler
publishing some private gossip, scandal, or personal abuse,” Madill v Curie,168 Mich
546, 559 (1912), even though the circumstances surrounding his statements present
something very different. Because this case falls so squarely within the ‘qualified
privilege,’ implicating social values and speech interests that are at the core of the
privilege, the costs of denying defendant its protections are so substantial. Defendant
truly required the protections of the ‘qualified privilege,’ because the difference in the
way the jury would perceive his conduct with and without the privilege was so very
different. By refusing to instruct on this privilege, the trial court effectively
communicated to the jury that defendant’s interests in defending, passionately, the tenets
and practices of his faith and of his church, in responding to a lawsuit that called his own
integrity and that of his church into question, in defending his management and
leadership of a church whose financial stability had been threatened, all to a limited
 12

audience that almost exactly shared these concerns, did not matter, that none of this
mattered in assessing defendant’s liability for defamation. However, all of this does
matter, and it matters greatly, under the law of this state. Defendant was entitled as a
matter of law to be viewed by the jury as someone other than the equivalent of a person
uttering “private gossip, scandal, or personal abuse.” He was entitled to bring context to
bear in defending himself, and he was not allowed to do this.

IV. CONCLUSION

The trial court erred as a matter of law when it determined that the two church-
related occasions on which defendant made statements concerning plaintiff and her
lawsuit were not subject to a ‘qualified privilege.’ Furthermore, where the trial court
never informed the jury that defendant possessed a ‘qualified privilege’ to communicate
the information in controversy; where the purpose and legal effect of the ‘qualified
privilege’ was never explained to the jury and allowed to supply context for defendant’s
communications; where defendant was deprived of the presumption of good faith that
attaches to the ‘qualified privilege’; where the operative standard of “malice” and its
meaning in this specific context was never shared with the jury; where the jury was never
instructed on the correct burden of proof to apply in cases involving the ‘qualified
privilege’; and where the jury was repeatedly instructed to apply an incorrect, and lesser,
standard for discerning liability, I am unable to conclude that the trial court’s error was
“harmless.” If a properly-instructed jury had returned this same verdict, such a verdict
could not be disturbed. However, to allow this verdict to stand on plaintiff’s defamation
claims in light of this error is, in my judgment, “inconsistent with substantial justice.”
MCR 2.613(A).

For these reasons, I would affirm that part of the Court of Appeals’ decision that
reversed the jury’s verdict on plaintiff’s claims of slander and libel, and remand for a new
trial on these claims.

CORRIGAN, J., joins the statement of MARKMAN, J.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 7, 2010 _________________________________________
0331 Clerk