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Michigan Appeals Court Affirms Dismissal of Defrocked Priest’s Libel Suit Against Detroit Free Press

By Herschel P. Fink

A Michigan Court of Appeals panel has rejected the appeal of a defrocked Detroit area Catholic priest from the dismissal of his three-year-long libel and false light suit against the Detroit Free Press and two other media defendants over publications he claimed had "translate[d] into a guilty conviction" disciplinary actions by the Detroit Archdiocese arising from "sexual misconduct and molestation of a child" allegations. Kaucheck v. Detroit Free Press.

Kenneth Kaucheck, the former priest, claimed that Detroit Catholic Archdiocese press releases that were quoted in stories by the Free Press and the suburban Macomb Daily "actually reported" only that the Detroit Archdiocese had taken disciplinary action against him "because of an allegation of sexual misconduct."

Kaucheck claimed that the newspapers and a third defendant, "SNAP" (Survivors Network of Those Abused by Priests), which issued a hyperbolic press release about his discipline that was quoted in the news stories, had "misreported the Archdiocese's findings and its subsequent press releases by stating that the Archdiocese 'determined' that he had committed sexual misconduct."

Kaucheck claimed that the reports defamed him and cast him in a false light by "declaring him guilty" of the sexual misconduct allegation, when there had never been such a "determination." Rather, his lawsuit claimed, the Archdiocese's Review Board had determined only that the sexual misconduct allegation dating back to the 1970's with a 16-year-old female parishioner he was counseling as a priest was "substantive" and "credible" when it disciplined him in 2009 by stripping him of all priestly functions. His suit claimed that this was only the equivalent of a "probable cause" determination.

The Michigan Court of Appeals in its 15-page opinion released on June 11, 2020 concluded succinctly: "Because the statements in defendants' publications were either substantially true or nonactionable opinions, we affirm." The 2018 Wayne County (Michigan) Circuit Court opinion granting summary judgment was reported in MLRC's October 2018 MediaLawLetter. ("Defrocked Priest Loses Libel Suit Against Detroit Free Press.")

The trial court's opinion had also decided novel issues of ecclesiastical abstention, as well as finding that Kaucheck was a limited purpose public figure because of his leadership and fundraising roles, ironically for a Catholic residential facility for pregnant young women. In the end, the appeals courts found that "because the challenged statements are not defamatory as a matter of law" ... "given our disposition of this issue, it is unnecessary to address plaintiff's remaining issues."

As to Kaucheck's claim on appeal that the statements by the newspapers were false, the Court of Appeals found them substantially true, writing:

Again, the statements in the articles simply repeat what was noted in the Archdiocese's press releases. The Detroit Free Press used the term "removed" from the public ministry, but this was consistent with the Archdiocese's statement that plaintiff was placed on an administrative leave of absence and is currently restricted from any public ministry." Although the terminology that (Free Press reporter) Warikoo used in his article was different and potentially more inflammatory than that of the press releases, "the sting of the article" remains the same – after an allegation that plaintiff engaged in sexual misconduct with a minor was found to be substantive, plaintiff was removed from his position serving in the public ministry of the Archdiocese. Because the "literal truth" reflected in the Archdiocese press release produces the same effect as what Warikoo wrote, the minor differences in terminology are not material. (Citation omitted.) Thus, the evidence does not establish a genuine issue of material fact with regard to whether the statements in the publications of the Detroit Free Press were materially false.

Both newspapers also quoted hyperbolic statements critical of the Archdiocese and its handling of the Kaucheck case that were made in news releases by an official of the SNAP organization, well known for its often-heated advocacy on behalf of victims of clergy sexual abuse. The newspapers and SNAP itself defended those statements as constitutionally protected opinions, and not statements of fact. In its analysis agreeing that those statements were not actionable, the appeals court took note particularly of the context in which they were made:

Initially, it is important to consider the context in which [SNAP President] Clohessy's statements, including his statement that "a priest who was ousted because he molested a girl now works for a non-profit that reportedly helps girls," were made. This statement, as well as Clohessy's reference to "a simple Google search" and the need for the Archdiocese to inform Catholics about plaintiff, were first articulated in SNAP's April 17, 2016 press release. In Ghanam [v Does, 303 Mich App 522 (2014)], this Court opined that the "context and forum in which statements appear" will aid the court in determining whether a reasonable reader would interpret the statements as asserting facts that could be proven as true or false. [Citation omitted.] This specific statement by Clohessy was first made on the webpage for SNAP, a website for survivors of sexual abuse by priests.... Clohessy further characterized the decision of the Archdiocese to allow plaintiff to be involved at Gianna House as a "stunningly callous and reckless maneuver[.]" While the balance of Clohessy's allegations are inflammatory, certainly offensive to plaintiff, and, when read literally, appear to accuse plaintiff of engaging in criminal conduct, the statements in context (particularly given Clohessy's occupation criticizing the Catholic Church and members of the Catholic clergy regarding its involvement in sexual abuse claims) are best characterized as "rhetorical hyperbole and imaginative expression," id., rather than stating assertions of fact against plaintiff. [emphasis in original] We acknowledge that both in the May 9, 2016 and May 19, 2016 [Free Press] articles, Clohessy used strong language when stating that plaintiff was "ousted [from the Archdiocese] because he molested a girl," and referring to plaintiff as a "credibly accused child-molesting cleric[.]" However, an individual reading Clohessy's language strongly criticizing plaintiff, the Archdiocese, and Gianna House, would recognize Clohessy's remarks as "rhetorical hyperbole, [and] ... vigorous epithet[s] used" to express disapproval and disdain of the Archdiocese's failure to more closely monitor plaintiff's activities working with the public and of Gianna House for allowing plaintiff to be part of its organization. (Citation omitted.) Thus, the trial court correctly held that these statements were unactionable.

The Court of Appeals designated its opinion as "Unpublished," meaning that, while it may be cited for its persuasive value, it is not binding authority on lower courts or other Court of Appeals panels.

Detroit Free Press was represented by Herschel P. Fink, Detroit Free Press Legal Counsel, and of counsel to Jaffe Raitt Heuer & Weiss, Detroit, MI; the Macomb Daily was represented by Jennifer Dukarski of Butzel Long, Bloomfield Hills, MI, and SNAP was represented by Michael J. Smith of Smith Appellate Law Firm, Washington D.C. Plaintiff Kenneth Kaucheck was represented by Jennifer Qonja of Eaman & Gabbara, Troy, MI.

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