E-Filed Document Feb 2 2017 11:57:54 2016-CA-01131 Pages: 17 IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO. 2016-CA-Ol131 2016-CA-01131 JONATHAN GRIFFITH vs. VS. MERLENE WALL APPELLANT APPELLEE APPELLEE'S BRIEF WILLIAM L. DUCKER Attorney at Law P. 0. O. Box 217 Purvis, MS 39475 MSB # 6201 601-794-8545 601-794-8546 Fax E-mail: bill@duckerlawfirm.com
IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI NO. 2016-CA-01131 JONATHAN GRIFFITH vs. MERLENE WALL APPELLANT APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualifications or recusal. 1) Hon. William E. Andrews, III County & Youth Court Judge Lamar County, Mississippi 2) Hon. Anthony A. Mozingo Circuit Court Judge - 15 1 h Distr. Lamar County, Mississippi 3) Jonathan Griffith, Appellant 4) Alexander Ignatiev, Esq. Attorney for Jonathan Griffith 5) Merlene Wall, Appellee 6) William L. Ducker, Esq. Attorney for Merlene Wall Respectfully submitted, ~':f~ ~ UAMLDUCKER MSB # 6201 P.O.Box217 Purvis, MS 3 94 7 5 (601) 794-8545 Counsel for Appellee: Merlene Wall
TABLE OF CONTENTS Page Certificate of Interested Persons Table of Contents Table of Authorities Statement of the Issues Statement of the Facts Statement of the Case Summary of the Argument 11 III 1 2 3 4-5 Argument: Proposition I. Proposition II. Conclusion Certificate of Service 6-7 8-10 II - 12 13 11
TABLE OF AUTHORITIES STATUTES: FEDERAL PAGE 47 USC 230(c) 4, 5, 7, 8, 11 FEDERAL CASES: Red Lion Broadcasting Co. v. F.C.C., 395 US 367 (1969) 9 US v. White, 670 F.3d 498 (March 2012) 9 MISSISSIPPI CASES AND OTHER CASES: Blake v. Gannett Co., Inc., 529 So. 2d 595 (Miss. 1988) 9 Chatham v. Gulf Publishing Co., Inc., 502 So.2d 647 (Miss. 1987) 9 Journal Publishing Co. v. Ms. Cullough, 743 So.2d 352 (Miss. August, 1999) 9 McGrew v. McGrew, 184 So. 3d 302 (MS CA 2015) 6 Miller v. Pannell, 815 So. 2d 1117 (Miss. 2002) 6 W. T. Raleigh Co. v. Armstrong, et ai, 165 Miss. 380 (1932), 140 So. 527 6,7 RULES: OTHER AUTHORITIES: 17 Am. Jur.2d, Contracts, Section 11 10 111
ST A TEMENT OF THE ISSUES I. The Circuit Court of Lamar County did not err as a matter of law by taking the failure of Appellant, Jonathan Griffith to file a brief as a confession of error, rather them summarily affirming the County Court of Lamar County. II. The Circuit Court of Lamar County did not err in reversing the Judgment of the County Court of Lamar County. 1
STATEMENT OF THE FACTS Merlene Wall, City Clerk of Lumberton, Mississippi, sued Jonathan Griffith publisher of "The Lumberton Informer", a blog on the Google and Facebook web sites for libel and slander. On June 7, 2015, the County Court of Lamar County entered its injunction ordering Jonathan Griffith, as owner of the blog "The Lumberton Informer" to cease and desist from writing defamatory material about Merlene Wall in his publication. (Tr. 7,8) (RE 12, 13). A trial was held on October 19,2015, and Judgment was entered in favor of Jonathan Griffith on November 13, 2015. (RE 4, 5) Merlene Wall appealed to the Circuit Court of Lamar County, Mississippi and filed her Brief, which the Appellee/there Appellant herein failed to answer. (RE 2, 3) The Circuit Court considered the failure of Jonathan Griffith to answer as a confession of the law presented by Merlene Wall and reversed the Judgment of the County Court on July 5, 2016. Mr. Griffith appealed to this Honorable Court on August 4,2016. (RE 1) 2
STATEMENT OF THE CASE The Circuit Court of Lamar County, Mississippi accepted the law presented by the Appellee in her Brief (C.Tr. 10-20). The Circuit Court Brief of Merlene Wall was the document upon which the Circuit Judge based his ruling. However, other than the final Judgment (RE 2-3) there are no other documents or testimony from the Circuit Court recited herein. Therefore the designation (Tr.) is used for references to County Court only. (C.Tr.) is used for Circuit Court, which reversed the Judgment of the County Court of Lamar County, holding that Appellant, Jonathan Griffith, did defame Merlene Wall. (RE 2, 3) Jonathan Griffith publishes a blog called "The Lumberton Informer". (RE 9, 10) Mr. Griffith has for some two (2) years published libelous and slanderous articles about Appellee Wall and others in the Lumberton Municipal offices. Mr. Griffith seeks to cloth these comments under the First Amendment rights of freedom of the press and speech, however, he does so by either writing the article himself or allowing cowards to do so under the name anonymous. (RE 59, 60, 64, 65) Mr. Griffith declares he cannot control what others blog, however, the Deputy City Clerk, Melissa Nightengale testified uncontradicted that she and her daughter attempted to respond to the anonymous comments made about them and were not allowed on the website. (Tr. 35, 36) (RE 40, 41) 3
SUMMARY OF THE ARGUMENT The Appellee, Merlene Wall, divides the issues presented separately as follows: Proposition I. The Circuit Court of Lamar County did not err by taking the failure of Griffith to file a Brief as a confession of error. The Circuit Judge considered the Brief of the Appellee, Wall, and reversed the County Court because the Court was convinced that in her Brief to the Circuit Court, Merlene Wall had supported her position with a federal statute and case law that circumvented the County Court ruling. Taking everything into consideration the Appellant Griffith says in his Brief concerning First Amendment rights, the Court should uphold the Circuit Judge, because the Appellant's Brief does not address the complicated issue raised by the Appellee concerning the dissemination of the information over a web site by a publication of a blog when compared and contrasted with 47 USC 230(c). By not attempting to rebut Merlene Wall's legal conclusions Jonathan Griffith fell into the trap of standing on the lower coul1 ruling without filing an answer. Appellee' s clear statement of all the facts (not just those favorable to her) and applicable citations of authority support the Circuit COtu1 ruling. Proposition II. The Circuit Court of Lamar County did not err in reversing the Judgment of the County Court of Lamar County. At trial, Merlene Wall, introduced several instances of anonymous blogs that were disseminated by "The Lumberton Informer." Jonathan Griffith based his sole case on First Amendment rights. However, his First Amendment rights conflicted with his responsibilities 4
under 47 USC 230(c). The testimony from the record clearly shows his ownership, his oversight, and his selfish disregard for opposing opinions. By no! answering the Brief presented by Merlene Wall in Circuit Court, Jonathan Griffith has confessed Wall's Brief and said Brief was accepted as correct by the Circuit Court. 5
ARGUMENT Proposition l. The Circuit Court of Lamar COllnty did not err by taking the failure of Griffith to file a Brief as a confession of error. In a line of cases commencing from W. T. Raleigh Co. v. Armstrong, et ai, 165 Miss. 380 (1932), 140 So. 527 to Miller v. PaJU1ell, 815 So. 2d 1117 (Miss. 2002) to the Court of Appeals recent decision of McGrew v. McGrew, 184 So. 3d 302 (MS CA 2015) the Appellate Courts have held there are two (2) options when presented with a case where the Appellee fa iled to file a brief: 1. Take the Appellee's failure to file a brief as confession of error and reverse. This was the position taken by the Circuit Court of Lamar County after considering the trial transcript and the brief presented by the Appellant, Merlene Wall. 2. The second course of action would have been to disregard the Appellee's failure to file a brief and affirm the Judgment of the County Court. The Circuit Judge relied on Option I of the McGrew decision to reverse the County COUli Judge. (RE 2, 3) Although the (2002) Supreme Court case and the 20 15 Court of Appeals case cite both options I and 2, these were first outlined by the Raleigh v. Armstrong case, those decisions do not discuss the Couri' s rationale as does Raleigh v. Armstrong. "There seems to be no uniform rule of procedure in the various appellate courts of the several states as to what shall be done when the appellee makes no oral argument and files no brief. Some of them hold that such default on appellee's part will be taken as a confession of the errors assigned ajld of the statement of facts, and citation of law, in appellant's brief and argument, and the judgment will thereupon be reversed as a matter of course. Other courts have said that they wi ll to all extent disregard the default of the appellee aild will determine the case on the merits; but even those courts have generally said that they wi ll not devote aily extended or laborious efforts to search out from the record the facts or the theories upon which an affirmance may be based, and have called attention to the liability to error, and to the dailger of bringing forward and in 6
acting upon points or theories that were not presented or passed upon in the trial court. And sometimes the obvious point has been made that an appellee has no right to call upon the court to brief his case for him, for this would be to call upon the court to act first as attorneys for appellee, and when that function has been performed, then as judges to decide the case." The Appellant rested on the decision of the County Court and to his chagrin did not rebut the significant comparison and contrast of the law and facts briefed by the Appellee in her brief filed in Circuit Court (C.Tr. 10-20). Merlene Wall had testified and offered another witness, Melissa Nightengale at trial, who testified as to the autocratic manipulation of "The Lumberton Informer" by the Appellee, Jonathan Griffith (RE 35-36). The rights and responsibilities of 47 USC 230(c) make this a very complicated case and Jonathan Griffith has relied solely on his First Amendment rights, which are not enough to defeat his obligations as a publisher under the statute. 7
PROPOSITION II. The Circuit Court of Lamar County did not err in reversing the Judgment of the County Court of Lamar County. Jonathan Griffith is the owner of "The Lumbelion Informer" and is responsible for any libelous material disseminated therefrom. According to 47 USC 230(c) "Good Samaritans" (blog managers) are protected for blocking and screening offensive material placed on the blog by unnamed persons not willing to take responsibility for their actions. Jonathan Griffith testified he can't control what someone else writes anonymously on his blog, that he would be encroaching on that person's freedom of speech. Since he has the protection of the Federal statute, to not exercise his power to screen malicious material would certainly place him in the position of encouraging the dissemination of malice and vulgarities on the internet. When some defamatory comments about Deputy City Clerk, Melissa Nightingale, appeared on "The Lumberton Informer," Ms. Nightingale and her daughter attempted to respond. Their answers were received but never published. (RE 40, 41) If Appellee in Circuit Court can censor the Nightingales why is he not censoring the anonymous blogger? The County COUli found that there was insufficient proof in the record to hold Griffith responsible for the posting of what are admittedly distasteful, crude and inappropriate comments by anonymous posters. Appellant would argue that the Federal statute and the trial transcript clearly make Jonathan Griffith responsible for these anonymous posts. Q. Okay, but as far as the articles that you write and the comments that are made, those are under your auspices; is that correct? A. Yes. (Tr. 6, 7) 8
Even though Mrs. Wall is a public official, according to the precedent setting case on the subject, Red Lion Broadcasting Co. v. F.C.C., 395 US 367 (1969), Merlene Wall or Melissa Nightingale should have been afforded time and forum to answer the allegations of malice made towards them. While freedom of speech and the press are vital amendments to the constitution, equal protection under the law requires something akin to mutuality of obligation from contract law. In return for a publisher being able to write his opinion he must exercise responsibility and restraint in his writing about other citizens. Even those persons designated as public figures cannot be defamed with malicious obscenities or untruths. Actual malice is defined in US v. White, 670 F.3d 498 (March 2012) and Journal Publishing Co. v. Ms. Cullough, 743 SO.2d 352 (Miss. August, 1999). In the discussion of Chatham v. Gulf Publishing Co.. Inc., 502 So.2d 647 (Miss. 1987) this Court ruled a claim of defamation requires not only that the statements of the Defendant be false, but also the following elements: 1) an unprivileged publication to a third party, 2) fault amounting to at least negligence on the part of the publisher; and 3) either actionability of the statement irrespective of special harm or the existence of special harm by the publication. The redirect examination of Merlene Wall (Tr. 31, 32) (RE 36, 37) included copies of the so-called anonymous blogger of the Appellant's web site that are so disgusting that they will not be reprinted here. However, the Circuit Court of Lamar County held that Merlene Wall had been defamed by Jonathan Griffith and nothing in Appellant's brief to this Court indicates otherwise. Whether Mrs. Wall is a public figure or not does not allow for statements disseminated through newspaper or social media like those found on pages 31 and 32 of the Trial Transcript. In the case of Blake v. Gannett Co., Inc., 529 So. 2d 595 (Miss. 1988) the 9
Supreme Court of Mississippi determined when and how the privileges of speech and press could be abused. The case at bar certainly qualifies for treatment under that concept. The obligation of the publisher for truthfulness is tantamount to the requirement of mutuality of obligation in contracts. " 17 Am. Jur.2d, Contracts, Section 11." 10
CONCLUSION The Appellant, Jonathan Griffith, for whatever reason did not file a response to Merlene Wall's Brief in Circuit Court. The Lamar County Circuit Court ruled that Griffith's failure to participate in the Appeal was a confession of error from the lower court. The Circuit Court also found from the law presented by Merlene Wall's Brief that Jonathan Griffith defamed Merlene Wall. Appellant has chosen to stand only on his civil rights as discussed in the County Court trial, which will not shield his malicious use of the social media. Merlene Wall and her family are suffering abuse and humiliation from Jonathan Griffith's personal attacks through his blog. The Trial Court took the position that free speech allows more harassment of an individual designated as a public figure by a writer than if that person was not a "public figure". Appellee has acknowledged she is the City Clerk of the City of Lumberton and Mr. Griffith may openly criticize her work and/or the City'S actions any time he desires. However, despite the Appellee's status with the City, Mr. Griffith cannot write or disseminate his own or other persons libelous and slanders remarks about Mrs. Wall 's personal life and her family without fear of repercussion. Appellant openly admitted he was in charge of the blog entitled "The Lumberton Informer". That declaration makes the case for Merlene Wall. Griffith says he can't control what anonymous bloggers print. 47 USC 230(c) says he can and should. If the Court accepts that standard, then it follows that Jonathan Griffith has libeled and defamed Merlene Wall. The Judgment of the Lamar County Circuit COUl1 should be affirmed. 11
:;2 RESPECTFULLY SUBMITTED, this the '7. day of February, A.D., 2017. Attorney at Law P.O.Box217 Purvis, MS 39475 MSB # 6201 601-794-8545 601-794-8546 Fax E-mail: bill@duckerlawfirm.com 12
CERTIFICATE OF SERVICE p WILLIAM L. DUCKER, Attorney for the Appellee, do hereby cel1ify than on the 2; day of February A. D. 2017, I electronically filed the foregoing with the Clerk of Court using the ECF system which sent notification of such filing to the following: Hon. Anthony A. Mozingo Circuit Court Judge - 15 th Distr. P. O. Box 269 Purvis, MS 39475 tonymozingo@yahoo.com Alexander Ignatiev, Esq. Attorney at Law P. O. Box 2076 Hattiesburg, MS 39403-2076 ignatievelaw@gmail.com and I hereby certify that I have mailed by United States Postal Service the document to the following non-ecf participants: Hon. William E. Andrews, III County & Youth Comi Judge P. O. Box 307 Purvis, MS 39475 :;)) DATED this, the 2- day of February, A. D., 2017. ~L~ WILLIAM L. DUCKER 8-1 6-1 13