Sunday, December 30, 2007

The DelGiorno Lawsuit

Attorneys for former Tulsa radio personality Michael DelGiorno recently settled a contentious defamation suit brought by Tulsa businessman Bill Christiansen. Public retractions have been running on the air for the past several days. A lot of people are saddened by the retractions and see it as the end of an era in Tulsa radio. However, regardless of the underlying political and moral issues, Christiansen's attorneys have won and won big and the legalities of the case are important.

In Oklahoma, slander is defined as a false and unprivileged publication, other than libel, which among other things charges any person with crime, or with having been indicted, convicted or punished for crime or tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit which, by natural consequences, causes actual damage.

So, what did DelGiorno say that caused his attorneys to throw in the towel, order public retractions to aired and probably give the other side a whole lot of money? The following quote by plaintiff Bill Christiansen in the Tulsa World is instructive:

He continued: “I’m a big boy. He can say I shouldn’t be re-elected or that I’m a bad city councilor, but when he starts bringing my business into it and my business ethics, repeatedly telling lies, that was hard to take.”

Christiansen, who operates an aviation business, said that on one tape of the radio program, DelGiorno said he “looked forward to the day he ruined me, and it was his job to say it over and over again until people believe it.”

Christiansen said that “there is no question in my mind that is exactly what he had in mind.”

Christiansen said he was one of many people about whom DelGiorno made disparaging and untrue statements.

Peters said that what separated the remarks about Christiansen from the others is that DelGiorno said Christiansen committed a crime.

“He crossed the line and used the word ‘felony,’ used the words ‘federal crime.’ He said it dozens of times and added that the FAA agrees,” Peters said.

Kent Faith, a competitor of Christiansen’s at Jones Riverside Airport, had complained to the Federal Aviation Administration that the Tulsa Airport Authority was favoring Christiansen at his expense. The FAA ultimately dismissed the complaints.

If we parse Christiansen’s statement we find all of the elements of defamation. DelGiorno made public accusations of wrongdoing and unfitness that would tend to injure Christiansen in his business. An official investigation that would have verified the truth of the DelGiorno’s statements did not result in charges and thus officially cleared Christiansen. Consequently, DelGiorno’s statements were considered false for the purpose of the defamation action.

This case could have been much more complicated. DelGiorno on the one hand, a purely public figure, was almost impossible to defame. The United States Supreme Court has extended first amendment protection to patent falsehoods about public figures. Christiansen however, as an elected official, should have also been considered a public figure as well, but obviously was being granted the more favorable status of a limited public figure concerning his private business.

The lesson here is clear. Be careful when you set out to ruin another man’s business or career. It can turn into a costly adventure. Further, don’t rely on the two year statutory of limitations to save you from old defamatory statements. Oklahoma courts have long recognized the ‘discovery rule” concerning defamation. Under this rule, every repetition of a defamatory statement is a new offense and the statute of limitations does not begin tolling until the alleged victim discovers them. It would appear that the old moral adage, “If you can’t say anything good about a person don’t say anything at all,” is also pretty good legal advice ... especially when it comes to a man's business.

Sunday, December 02, 2007

Leave the Jury System Alone ....

The following is taken from

Washington Knows Best?
By Ken Connor
Sunday, December 2, 2007

We are all used to Liberals telling us that Washington D.C. knows best, but now Republicans, claiming to be conservatives, are echoing the same sentiment. Campaigning in Iowa last week (Nov. 20th), former Massachusetts governor and Republican presidential candidate Mitt Romney reiterated his proposal for federal caps on medical malpractice lawsuits. "I believe we have to enact federal caps on non-economic and punitive damages related to malpractice," Romney stated in a speech at Des Moines University. Other Republican presidential candidates, trying to claim the conservative mantle, have made similar proposals. Apparently they don't consider respect for "federalism" and "states rights" to be conservative principles. They seem to think Washington knows best. I beg to differ.

True conservatives support the idea that states are generally better suited than the federal government to decide what works best for its citizens. We believe that government works best when it’s closest to the people. Currently, state courts are where victims of medical malpractice bring their claims when they have been injured. The claims are tried under state law and in front of a jury of their peers. Some states have set caps on medical malpractice awards, while others have not. That is what federalism is all about—the people of the several states deciding what works best for them in their state.

Governor Romney, while invoking the cloak of conservatism, doesn't see it that way. He apparently sees a "one-size-fits-all", Washington-dictated policy prescription to cap medical malpractice awards as the answer to a local question. This belies any trust in the people and perpetuates the "Nanny State" conservatives so despise.

Why does Governor Romney think Washington knows best? Do all states have the same problems; do all states have problems? Of course not! Does he think Ted Kennedy and Chuck Schumer are better finders of fact than a Texas jury that has just heard all the evidence? I would hope not. Or, is it because "tort reform" opens the doors to corporate campaign contributions and he is willing to put politics before principle?

The Founders were very deliberate in fashioning a republic that did not cede too much authority to a central government. They created a federal court system that provides for a measure of Congressional checks and balances. They left states free to create their own court systems and did not presume to dictate how those courts would operate. Yet today, that structure has been turned upside down. The meddlesome government in Washington is trying to dictate the workings of state courts while it prostrates itself in passive submission before an activist federal judiciary.

The civil justice systems of the states are too important to expose to the ever-changing political winds blowing inside the Beltway. The tort system promotes responsible behavior by holding wrongdoers accountable for the harm they cause others. State civil justice systems provide the mechanism where local people, through a jury of their peers, decide what is reasonable and appropriate within their own communities. The jury system is beyond the influence of special interests because jurors cannot be paid by either side. Such a system affirms local control and, therefore, is the very essence of federalism—a quintessential conservative principle.

Liberals, for many years, have worked to undermine the authority of state and local government using the federal courts as their mechanism. Knowing that their agenda would never fly in "fly-over country" they petitioned the federal courts to ram it through. And like-minded, activist judges obliged. Mr. Romney and the other Republican presidential candidates rail against this judicial activism and promise that their judges will be different. But using the forces of the federal government to dictate the outcomes of state court proceedings is just as "activist" and destructive of state and local rights. The only difference is the mechanism that is used. The outcome is the same—local citizens lose control.

"Washington knows best" is not a federalist principle. Politicians in Washington should not decide the outcomes of state court cases. That is best left to the ladies and gentlemen of the jury.

Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case.

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