Memorandum in support of motion for Reconsideration

SUPREME COURT OF WISCONSIN



In the matter of attorneys fees in:
Grant E. Storms, plaintiff v. Action
Wisconsin Inc. and Christopher Ott, defendants.

JAMES R. DONOHOO,

Appellant,

vs.
Appeal No. 2006AP000396
ACTION WISCONSIN, INC. and
CHRISTOPHER OTT, Circuit Court
Case No. 2004CV002205
Respondents.



APPELLANT, JAMES R. DONOHOO'S, MEMORANDUM
IN SUPPORT OF MOTION FOR RECONSIDERATION



The Appellant, James R. Donohoo, would request that the Supreme Court reconsider its opinion of June 5, 2008, and affirm the opinion of the Court of Appeals, District 1, for the following reasons:
1. The Supreme Court majority opinion applied an incorrect standard of law analysis.

2. The Supreme Court majority opinion does not appear to be based on facts, logic, and the existing case law.

3. The Supreme Court majority opinion categorized evidence as worthless that clearly was evidence tended to show that Action Wisconsin issued the defamatory statements with actual malice.

4. Five out of ten justices who have reviewed the evidence and the arguments (two in the Court of Appeals, three in the Supreme Court [dissent opinion]) have found that the lawsuit was not frivolously commenced or frivolously continued. The two Court of Appeals' justices in fact found that the case was clearly not frivolous. Therefore how can the lawsuit possibly be frivolous? And how would Attorney Donohoo have known the lawsuit was supposedly frivolous, since two Court of Appeals' justice and three Supreme Court justices agreed with Attorney Donohoo that the lawsuit was not frivolous?

5. Considering the manner in which the Supreme Court majority overruled the Court of Appeals, namely they did not find that the Court of Appeals had applied an improper standard, but rather merely found that in their opinion the case was frivolously commenced and continued, this ruling will have a chilling effect on the ability of any Christian pastor or other person to speak out against homosexuality, or to commence a lawsuit if statements they would make are twisted beyond any recognition. Additionally it would be next to impossible to find an attorney to represent these persons in a defamation action to restore their reputation.

Storms is a bombastic street preacher, and the Petitioner does not agree with or endorse all of the language used by Storms in his speech. However no matter what language Storms used in his speech, he had the right to defend himself against Action Wisconsin's defamatory statements that Storms was mimicking the killing of gay people when he related the biblical story of Jonathan and his armor bearer, and the defamatory allegation that Storms was advocating the murder of gay people.

The Court Of Appeals' Decision Should Not Have Been Accepted For Review Since The Supreme Court's Decision Documents That None Of The Criteria For Review Were Documented In A Supreme Court Decision.

Wisconsin Statute § 809.62 provides that the Supreme Court review of a Court of Appeals' decision will only be granted if special and important reasons are presented. Subsections (a) through (f) delineate the framework of criteria to be considered, such as a real or significant question of federal or state constitutional law presented, a need for the Supreme Court to consider establishing, implementing, or changing a policy within its authority, a decision of the Supreme Court will help develop, clarify, or harmonize the law, the Court of Appeals' decision is in conflict with controlling opinions of the United States Supreme Court or the Supreme Court or other Court of Appeals' decision, or the Court of Appeals' decision is in accord with the opinions of the Supreme Court or Court of Appeals but due to the passage of time or changing circumstances, such opinions are ripe for re-examination. It is always stated that the Supreme Court is not an error-correcting court which will accept cases for review from the Court of Appeals merely to correct what the Supreme Court perceives was an incorrect application of facts to the existing law.
Despite the Supreme Court accepting this case for review, the majority's decision of June 5, 2008 did not address any of the criteria specified in § 809.62. The Court of Appeals' decision was unpublished, which means it could not be used as precedence. The Supreme Court decision did not address any questions of federal or state constitutional law, did not address any need for the Supreme Court to consider establishing, implementing, or changing any policy within its authority, did not develop, clarify, or harmonize any law either in the area of frivolous claims or defamation law, did not find that the Court of Appeals' decision was in conflict with any controlling opinion of the United States Supreme Court or the Supreme Court or other Court of Appeals' decision, and did not discuss the need for re-examining or changing existing law. The Supreme Court's decision merely overturned the Court of Appeals' decision on the basis that the Supreme Court disagreed with the Court of Appeals' factual decision that the lawsuit was not frivolous, and moreover not even close to frivolous.
The Supreme Court Majority, By A 4-3 Vote In Reversing The Court Of Appeals' Decision, Did Not Find That The Court Of The Appeals Use Any Improper Standard Of Law And Furthermore, Five Out Of Ten Justices Who Reviewed The Case Found That The Lawsuit Was Not Frivolously Commenced Or Continued.

The majority did not find that the Court of Appeals used any improper standard of law in reaching their decision. Despite the fact that the Court of Appeals found that the action clearly was not frivolous, and should have been submitted to a jury, four justices of the Supreme Court, including Justice Butler, found that the case was frivolously commenced and continued. Five out of ten justices who have reviewed this case (two in the Court of Appeals and three in the Supreme Court) found that the lawsuit was not frivolously commenced or continued. The majority's decision reversing the Court of Appeals' decision does not seem to have any basis in fact or law.
Despite the numerous briefs filed by the Petitioner reminding the Supreme Court of the law concerning frivolous claims, the majority opinion applied an incorrect standard of law analysis. The dissent properly noted that the proper legal analysis did not involve the question of whether a reasonable jury would find for Storms on each element he had to prove in his defamation claim, but rather whether a reasonable attorney in the position of the Petitioner could believe it was possible for a reasonable jury to find in Storms' behalf. The dissent noted that both the Court of Appeals and three members of the Wisconsin Supreme Court had concluded that a reasonable attorney in the position of the Petitioner could have concluded that a reasonable jury could find that Action Wisconsin's statement was false.
As noted above, the majority applied an incorrect legal standard in reversing the Court of Appeals and finding the action frivolous. The correct legal standard as cited by the dissent was whether a reasonable attorney in the position of the Petitioner could believe it was possible for a reasonable jury to find in Storms' behalf. The dissent discussed the evidence supporting the argument that Action Wisconsin's statements were false and made with actual malice. The majority basically ignored that issue and rather discussed that since, in their opinion, Storms' speech was ambiguous, and that Action Wisconsin had chosen one of the rational interpretations, namely that Storms was advocating the murder of gays, that actual malice could not be inferred against the Respondents. The majority then engaged in an extremely disingenuous analysis of the voluminous evidence and ?? arguments in the record in support of actual malice. Since the majority characterized all of this extensive evidence of actual malice in the record as worthless, a legitimate question would be what possible evidence could exist in any defamation case that the majority would have found supported a finding of actual malice. Beyond failing to apply the proper standard discussed above, the majority substantially dismissed the page after page of the Appellant's evidence of actual malice with a waive of their hand. Without applying the proper standard and analyzing whether a reasonable attorney in the position of the Petitioner could believe it was possible for a reasonable jury to find in Storms' behalf, the majority summarily concluded that the action was frivolous.
Wisconsin Case Law Provides That A Lawsuit Has To Have No Merit For It To Be Frivolous.

Wisconsin case law provides that all doubts about the reasonableness of a claim must be resolved against the party asserting that the claim is frivolous, unless the claim was brought solely to harass or injure the other party. Baumeister v. Automated Products, Inc., 277 Wis.2d 21, 27, 690 N.W.2d 1, 3 (Wis. 2004). Furthermore a claim is not frivolous merely because there was a failure of proof or because a claim was later shown to be incorrect. Jandrt v. Jerome Foods, Inc., 227 Wis.2d 531, 551, 597 N.W.2d 744,755 (Wis. 1999). Finally in the case of Juneau County v. Courthouse Employees, a Wisconsin Supreme Court opinion authored by Chief Justice Abrahamson, the Supreme Court cautioned that a determination of frivolousness was an especially delicate area, and a Court must be cautious in declaring an action frivolous lest it stifle the ingenuity, foresightedness, and competency of the bar, and that because it is only when no reasonable basis exists for a claim or defense that frivolous exists, Section 814.025 resolves doubt in the favor of the litigant or attorney. Juneau County v. Courthouse Employees, 221 Wis.2d 630, 639-40, 585 N.W.2d 587, 591 (Wis. 1998). To paraphrase, the case has to have no merit to be found frivolous.
The Supreme Court Majority's Opinion Does Not Appear To Be Based On Facts, Logic, Or The Existing Case Law.

The majority's reasoning is best illustrated by a footnote in the majority opinion. The majority stated:
"The dissent asserts that whether Action
Wisconsin's statements were false ‘remains
a fact question for the jury' and that a
reasonable jury could determine that the
statements were false. Dissent ¶114. A
reasonable jury could therefore also
determine that the statements were true
according to the dissent's view."
It appears that the majority believed this footnote exposed a fatal flaw in the dissent's reasoning. To the contrary, the footnote exposed a fatal flaw in the majority's reasoning and analysis. It is true that the dissent's statement warrants the conclusion that a reasonable jury could also have found that the statements were true and not false. But that's the whole point. They said it is true that a reasonable jury could have found that the statements were true or false, then the defamation action was not frivolous as to the element of the falsity of Respondents' statement. The Court of Appeals and three Supreme Court justices have found that not only a reasonable attorney in the position of the Petitioner believe it was possible for a reasonable jury to find in Storms' behalf regarding the element of falsity of the statement, but also as to the element of actual malice. Even the majority did not find that a reasonable jury could not have found that the statements were true, but rather they found that, in their opinion, the statements were true.
Five out of ten justices reviewing Storms' defamation action have found it was not frivolous, with the Court of Appeals finding it was clearly not frivolous. The majority instead of applying the proper legal standard of whether a reasonable attorney in the Petitioner's position could believe it was possible for a reasonable jury to find on Storms' behalf, instead applied the standard that if they did not believe that a reasonable jury would find for Storms on each element of his defamation claim, that the claim was therefore frivolous.
The reality of these observations is stunning. This case should not have been accepted for review (in which case the Court of Appeals' decision reversing the award of attorney's fees would have stood). Once accepted for review, it appears that the majority, instead of concentrating on the valid issue of whether the lawsuit was frivolous, focused their attention on the political theme of homosexuality surrounding this lawsuit.It does not appear that any other explanation can justify the majority's decision, since it does not appear to be based on the facts, logic, and existing case law.
Chilling Effect Of The Supreme Court Majority Decision On Ability Of Christian Pastors And Others To Speak Against The Homosexual Movement's Agenda.

The majority decision will have a chilling effect on the free speech rights of Christian pastors and others to speak out against the homosexual movement's agenda. Despite the record containing voluminous evidence that Grant Storms was defamed, and despite the Court of Appeals' decision that the action was clearly not frivolously commenced or continued, the majority reversed the Court of Appeals on a 4-3 decision. The majority did not find that the Court of Appeals utilized an improper standard of review; the majority basically ignored the Court of Appeals' decision. The majority opinion sends a very clear message. If you speak out against the homosexual agenda, and especially if you use any type of biblical story or strong language, and if there is any scintilla of ambiguity in your speech, watch out. Action Wisconsin or some other similar group may very well issue a defamatory press release against you, alleging that you said something that you did not say, such as you were advocating that people commit murder of innocent people. If you then sue to attempt to restore your reputation, you better be prepared to lose your lawsuit, at least on appeal, and have enormous attorney's fees and costs awarded against you. The message is clear. If you are even thinking of speaking out against the homosexual agenda, forget it. Keep your mouth shut, or be prepared to have homosexual rights activist groups twist your words to suit their political and social agenda.
Additionally you are unlikely to find an attorney to represent you. Any attorney reading the Court of Appeals' opinion and the way in which the Supreme Court majority reversed it, (and realizing that the case should not have even been accepted by the Supreme Court) will realize that unless the attorney is 100% certain (not 99.9%) of his client's defamation claim, he or she better be prepared, at least on the Supreme Court appellate level, to suffer enormous financial sanctions in addition to the besmirching of his or her professional reputation. Consequently pastors or others who speak out against the homosexual agenda in Wisconsin and have their words twisted beyond all recognition in press releases sent around the world, are unlikely to obtain the assistance of an attorney in filing a defamation action.
In Addition To The Supreme Court Majority In Treating Appellant James Donohoo's Voluminous Evidence Of Actual Malice In A Cavalier Fashion, James Donohoo Presented More Than Ample Evidence Of Actual Malice.

As previously discussed, the majority's cavalier treatment of the voluminous evidence supporting actual malice (said evidence having been presented to the trial court, in Petitioner's trial court and appellate briefs, and partially mentioned in the Court of Appeals' decision and the dissent in the Supreme Court) is staggering. Christopher Ott, the executive director of Action Wisconsin and the co-author of the press release, admitted the following:
1. That he knew that Storms' speech exceeded one hour.

2. That he listened to only approximately 20 minutes of the speech or somewhat more.

3. That even after receiving two requests for retraction by Storms, Ott never bothered to listen to the other portions of the speech until the day before his deposition, which was on January 10, 2005.

4. That despite admitting that he only listened to approximately 20 minutes of the speech or somewhat more before issuing the press release, he admitted that the overall context of Storms' speech was crucial to interpreting what Storms said.

5. That in addition to not listening to the entire speech, Ott did not make any notes of the parts of the speech that he did listen to in order to assist him in his interpretation of Storms' speech.

6. Ott admitted that Storms in his speech never made any imperative statements to his audience urging them to go out and kill gay people, and further admitted that he had to use "interpretation" to arrive at that conclusion. He talked about Storms "leaving the door open" to that interpretation, but
admitted Storms never expressly said it.

7. In order to come to the conclusion that Storms was advocating the murder of gay people, Ott indicated you had to complete the analogy.


Ott's deposition testimony showed he did not really believe that Storms advocated the murder of gay people in his speech. The very idea that one could claim that another person advocated the murder of gay people in their speech, and then fall back on the defense that the person didn't explicitly say it but you're interpreting the speech that way, is ludicrous and would have offended any normal person's sensibility and sense of justice.
Joshua Freker, Action Wisconsin's director of communications and the co-author of the press release, testified as follows:
1. He had not listened to Storms' entire speech prior to issuing the press release, but in fact had only listened to approximately 15 or 20 sentences of the speech.

2. That despite this, he admitted that the context of Storms' remarks were important to understanding what he was saying.

3. Even after issuing the press release and receiving two requests for retraction, Freker did not bother listening to the remaining portions of the speech until the night before his deposition held on January 10, 2005.

4. Freker also admitted that Storms never explicitly in his speech urged people to go out and kill gay people.


Additional evidence of actual malice presented by the Petitioner was the failure of Action Wisconsin to respond to two retraction letters, their failure to investigate, the ill will and animus of Ott and Freker towards Storms as disclosed in their depositions, their failure to contact other gay organizations or the local police or FBI regarding the supposed call to murder allegedly issued by Storms, and the use of these defamatory statements by Action Wisconsin in their press release to attempt to advance their legislative agenda.
The majority, instead of considering all of this voluminous evidence of actual malice together, considered each piece of evidence in isolation from the rest of the evidence, an analytical method that defies logic. There is a fundamental rule of logic that when a person presents numerous facts allegedly supporting a conclusion, that the facts must be considered in tandem, and not in isolation from each other. The majority's analysis failed to do this, and to have done so would have required the majority to admit that there was evidence of actual malice, and therefore the lawsuit was not frivolous.
The Supreme Court Majority's Mindset Exposed By Sentence In Majority's Opinion.

One sentence of the majority's decision is not only troublesome, but exposes the majority's mind set. "The fact that there is no language in the speech explicitly stating that members of the audience ought to murder homosexuals says nothing about whether Action Wisconsin was reckless in its interpretation of the speech" (Page 28 of Decision)(emphasis added). The majority went a bridge too far. The majority believed that the fact that Ott and Freker admitted that Storms in his speech did not explicitly advocate the murder of gay people "said nothing about whether Action Wisconsin was reckless in its interpretation of the speech" (i.e. not a fact the majority would consider as any evidence of reckless disregard; in other words, a worthless piece of evidence, of no consequence). Emphasis added. In light of the fact that the majority characterized an obviously strong piece of evidence (admittedly not conclusive) not just as weak, but as worthless, one would have to wonder what evidence the Appellant possibly could have presented that would have persuaded the majority that the action was certainly not frivolous.
Bias And Prejudice Of Circuit Court Judge, Including Smoking Gun.

Because of the Petitioner's attempt to respect the dignity of the office of Circuit Court judge, the Petitioner in his briefs filed in the Court of Appeals and the Supreme Court did not specifically raise the issue of the bias of the Circuit Court judge. The Petitioner in those briefs provided documentation of that bias, but did not call it that or unduly highlight it. The Petitioner has also previously refused to comment to the press's inquiries whether the Petitioner believed that the Circuit Court judge exhibited bias and prejudice in her decision. The apparent bias of the Circuit Court judge in issuing its ruling that the action was frivolous is the elephant in the room. After reviewing the majority opinion, justice does not allow the Petitioner to remain silent any longer.
The Petitioner in his briefs filed in the Court of Appeals and the Supreme Court documented that the Circuit Court judge, among other things, ignored and failed to discuss and analyze the fact that the Petitioner pled all the necessary elements of defamation in the complaint, the defendants failed to respond to two retraction letters, and since Wisconsin has no pre-filing discovery, the Petitioner's only recourse was to commence the lawsuit, the evidence of actual malice existing at the time the complaint was filed, the additional evidence of actual malice obtained through the discovery process, including Ott and Freker's admissions that there were no explicit or imperative statements in Storms' speech advocating the murder of gay people, but rather that you had to finish the analogy or connect the dots to come to that conclusion, that Ott and Freker never listened to the entire speech until the night before their respective depositions, despite having been sued for defamation months before, the fact that the Petitioner had four people review the plaintiff's speech and all four people concluded that the published statements were false, and the facts regarding the relationship between the published statements being false and the existence of actual malice. The Circuit Court judge also went out of her way in her two decisions to demean and denigrate the Petitioner, and at the same time to lavish praise upon opposing counsel.
The Petitioner does not have to rely on the above compelling facts to expose the bias and prejudice of the Circuit Court judge. There is a smoking gun. In his Circuit Court brief, the Petitioner cited the Wisconsin case law confirming that Storms' libel cause of action was actionable without any proof of specific harm to his reputation. The Circuit Court in its decision on summary judgment found that Storms had offered no facts to support a finding of harm to his reputation, but cited no case law. The Petitioner's motion for reconsideration filed in the trial court and the brief in support thereof challenged this erroneous ruling of the Circuit Court. The Circuit Court denied the motion for reconsideration without addressing this challenge. Petitioner in his brief in opposition to respondents' motion for costs and fees again brought this erroneous ruling to the Circuit Court judge's attention and once again referenced the relevant case law supporting Petitioner's contention. The Circuit Court in its decision granting the defendants attorney's fees and costs again ignored the case law cited by the Petitioner in several prior briefs that Storms' complaint was actionable without proving actual harm to his reputation, and the Circuit Court for the second time erroneously ruled that Storms' action was frivolous because he had failed to provide any proof of specific harm to his reputation. The Circuit Court's failure again to present any case law in support of its erroneous ruling, or to present any case law in opposition to the case law cited by the Petitioner, fatally exposed the Circuit Court's bias and prejudice against the Petitioner. This ruling by the Circuit Court judge was incredible. The only explanation for this ruling would be that the Circuit Court judge was biased. Otherwise these repeated erroneous rulings are inexplicable.
The Circuit Court roundly castigated the Petitioner in its decision for failing to conduct proper legal research, and lavishly praised opposing counsel for their legal research and acumen. Ironically a letter from Respondents' counsel, Attorney Pines, to the Petitioner dated July 19, 2004, which was cited by the Circuit Court and the Supreme Court majority in their decisions, stated "Finally, as you know, one key element in defamation cases that the plaintiff must prove is damage to his reputation by the allegedly defamatory statement. Your client has shown that he is utterly unable to prove this." This argument by Attorney Pines, parroted by the Circuit Court in its decision, that the Petitioner had to prove damages to Storms' reputation, contradicted Wisconsin case law as shown above. The Court of Appeals and the Supreme Court decisions recognized the Wisconsin case law cited by the Petitioner. Therefore it appears that when Attorney Pines sent this July letter to the Petitioner, threatening sanctions, he either had not researched the Wisconsin case law before making this frivolous statement, or in the alternative, researched it incorrectly.
Significance Of Statement In Storms' Speech And Relevance Of Rational Interpretations Of Storms' Speech.

The Circuit Court and the majority, in concluding that Storms' speech was ambiguous, ignored what Storms said immediately after the "boom, boom, boom" quote. Storms immediately followed that reference by stating that Jonathan had a willingness to fight, not to stress that Jonathan had killed 20 Philistines. Storms immediately elaborated on this concept of a willingness to fight, discussing his attitude and actions before he was saved. Storms indicated that when he would get into a fight, his attitude was that you may whip him, but you were going to pay a price. He then immediately followed this reference by saying, "That's what we've got to have in this spiritual sense". In the very next sentence, Storms spoke about opposing homosexual marriage and homosexual adoption (part of the homosexual movement). In the very next sentence, he talked about opposing Southern Decadence, and that just as when before he was saved he used to scrap and fight physically, that Christians have to be willing to fight and scrap against homosexual marriage, homosexual adoption, and Southern Decadence. By using the words "in a spiritual sense", he left no room for doubt in the audience's mind that he was not referring to any type of violence against homosexuals.
The majority cited that there was ample case law for the proposition that actual malice cannot be inferred from the choice of one rational interpretation over another (Page 26). They cited the Torgerson case, and indicated that this same reasoning applied in the Petitioner's case, namely that Storms' speech was ambiguous and Action Wisconsin had chosen one rational interpretation, and that as a matter of law, that choice did not demonstrate actual malice. But what the majority didn't recognize is this: This does not mean that the action was frivolous. The Court of Appeals majority decision and the Supreme Court dissent stressed the issue is not whether after considering all of the facts the Circuit Court or an Appellate Court could determine that as a matter of law actual malice could not be proven, but rather whether the Petitioner had a reasonable basis to begin and maintain the action. The party filing the lawsuit in Torgerson was not assessed fees and costs, even though it was decided on summary judgment. As the dissent properly noted, the Wisconsin Supreme Court in Baumeister v. Automated Prods. Inc., when reviewing the issue of frivolousness, the Supreme Court does not look at whether one can prevail on his claim, but rather whether the claim was so indefensible that the party or his attorney should have known it to be frivolous. Baumeister v. Automated Prods. Inc., 2004 WI 148, ¶28, 277 Wis.2d 21, 690 N.W.2d 1.
Conclusion.
For the reasons stated previously, including the five points at the beginning of this memorandum, James Donohoo requests the Supreme Court reconsider its opinion of June 5, 2008, and affirm the opinion of the Court of Appeals, District 1.



Respectfully submitted this _26th__ day of June, 2008.


James R. Donohoo, Appellant
(Petitioner), pro se