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Post by Sir Alexandreu Davinescu on Jan 23, 2014 16:54:40 GMT -6
I believe your Honour might have missed my most recent reply, due to the vagaries of the Internet, which supplements my original motion to dismiss either part of all of the charges.
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Jan 23, 2014 16:55:15 GMT -6
Cross-post - apologies to the defence counsel.
re: the definition of defamation in Statute 942, "intent to defame" is the grounds of the misdemeanour, not the physical result of the attempted defamation - the plaintiff need not have suffered any actual loss. This is, in fact, the common basis of Anglo-American libel law - a newspaper may be sued for claiming something scandalous but evidently false about a subject. Indeed, the libel case itself is a grounds for the establishment of the likelihood of the charge. Claims that the plaintiff was insubordinate might well damage the plaintiff's prospects, if an employer were inclined to trust the defendant.
I do however take into account your comment on the felony charge - it is for the plaintiff to demonstrate that there was an attempt to gain "dishonest advantage" by the defendant as regard the dismissal. I also "strike from the record" the sentencing (as opposed to civil relief) request in the initial complaint.
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Jan 23, 2014 16:57:20 GMT -6
Clarification: I am seriously considering dismissing the felony charge for lack of evidence, barring further (adequate) submission from the plaintiff.
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Post by Sir Alexandreu Davinescu on Jan 23, 2014 17:22:59 GMT -6
Your Honour, it's true that "intent to defame" is necessary:
Whoever with intent to defame communicates any defamatory matter to a 3rd person without the consent of the person defamed is guilty of a Class A misdemeanor.
But 942.01(2) further specifies that "Defamatory matter is anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other's business or occupation."
So in order for defamation to have occurred, then the statement must be defamatory matter, and defamatory matter requires exposure to "hatred, contempt, ridicule, degradation or disgrace in society or injury in the other's business or occupation." Yet the plaintiff has not suffered "hatred, contempt, ridicule, degradation or disgrace in society or injury in the other's business or occupation."
I would suggest that this definition is one where the Anglo and the American laws differ, generally (and infamously). In the case of the specific law alleged to have been broken, especially, the plaintiff needs to have actually encountered "hatred, contempt, ridicule, degradation or disgrace in society or injury in the other's business or occupation." If a statement was did not exposure an individual to these things, it is not legally defined as defamatory, and so defamation cannot have taken place.
It is certainly possible that a charge of insubordination might damage the plaintiff's prospects, but it demonstrably has not done so. The plaintiff has dramatically and in short order advanced in his career, to the contrary.
To illustrate with a contrary example: suppose that Johann Talossan were to say that the plaintiff was a "foolish chair." Is it defamation simply because it is unkind and untrue - can Johann be sued? Of course not... it is only defamation if, as a result, the plaintiff suffers hatred, contempt, ridicule, degradation or disgrace in society or injury in business or reputation. If the plaintiff were, next week, to ascend not to two different new high government posts, but instead to Seneschal, then could he be fairly said to have suffered in his career? Of course not.
Simply put: the letter of the law requires actual damages to have occurred, not theoretical damages, and no such damages have occurred.
Lastly, with regard to the dishonest advantage, the plaintiff does not even allege such to have been the case. The plaintiff should not be allowed to amend his complaint and add in new accusations, halfway through proceedings. If that were permitted, then any trial would become a rolling and continual affair, with the defendant having to answer a series of new accusations as the plaintiff's old ones were dismissed. The plaintiff's basis for his complaint was that the decision was a poor one, not that it was made for dishonest advantage - I beg, let the complaint stand, and it let it be dismissed, your Honour.
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Jan 25, 2014 8:14:17 GMT -6
As regards the felony, with no counter-motion filed, so enacted - the felony charge is dismissed for want of evidence.
I do, however, begin to tire of the attempt to critique the Bench's reading capability. I will restate the matter once more, and then expect - in lieu of new arguments - the matter to be dropped.
I cannot find, having put more research into it, any standard definition of defamation in American law that requires material harm to have been caused to the plaintiff. Wisconsin, in fact, holds to the existence of "defamation per se" (though, since the 60s, in a reduced form), where damages do not need to be demonstrated, only assumed - the DMLP defines one such category as "matter incompatible with his business, trade, profession, or office". Martin vs Outboard Marine Corp 1962 clarifies this as the basis of Wisconsin libel law as to damages. Later US Supreme Court decisions defined that though this protected the plaintiff, it did not demonstrate entitlement to damages unless, in the final judgement of the court involved, the claims were made maliciously - with knowing falsehood or disregard for the truth. The plaintiff plainly alleges that is the case. It is incumbent on the defendant in their defence to demonstrate the plaintiff's insubordination OR demonstrate that the defendant did not mean the statement maliciously.
Furthermore, ALL of the above only applies to the issue of civil liability. The *crime* the defendant is accused of is specifically "intent to defame" - if words and grammatical construction still mean what they meant in the days of my youth, the following two clauses should make clear that the crime is defamation per se, rather than defamation per quod.
"(1) Whoever with intent to defame communicates any defamatory matter to a 3rd person without the consent of the person defamed is guilty of a Class A misdemeanor. (2) Defamatory matter is anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other's business or occupation."
The crime is to act with intention to expose to hatred, contempt, etc. Given in Wisconsin defamability is determined not by the effect of the statement (damages), but by a Restatement Test, all that matters is whether the statement, if false, can be read in a defamatory manner. It can.
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Post by Sir Alexandreu Davinescu on Jan 25, 2014 8:49:21 GMT -6
Thank you, your Honour. I would like to submit into evidence the following Wittenberg posts, made while the plaintiff held his former position in the defendant's employ: I ask for the immediate resignation of the Attorney General from all positions and/or offices whichsoever he possesses! Threatening or even talking about how he would be sentenced, if he had killed a fellow Talossan for words he wrote/emitted is outrageous and I will make it my personal agenda to bring you down, S:r Ardpresteir. I, for one, can, as little as I can tolerate Miestrâ's rudeness, NOT let such a disgusting gesture pass by without serious repercussions for your Talossan life! I will petition the King myself, beseeching him to strip you of any and every office you possess, and if . Shame on you all! Instead of disputing like civilised people, you attack each other and nobody feels outrage over the threat or even mentioning of murder? And then going on, on the shoutbox, stating that you were sure that Grubi were "born a basterd(sic)"? Citing from 43PD1 "The Verbal Resignation Dictate": Furthermore, same PD states, that: S:reu Marti-Pair Furxheir S.H., you may be so kind as to follow lawful procedure and post an official and public Affidavit to ensure that the resignation can lawfully be considered. Furthermore, S:r Béneditsch Ardpresteir, O.SPM.: As you can see, the ACTING Secretary of State can also bear witness to a resignation and is authorised to terminate an official relationship. S:r Ardpresteir, although you pose as Attorney-General, meseems that you know very little about Talossan law. Talossan law. No other law (except if specified by statute) has force in Talossa, not your Indian law that would not submit you to the death penalty if you had murdered S:reu dal Navâ, nor any US military law (seriously, what the heck?). Do resign from your post of Attorney-General, as well, before things get messy. Thank you. Oh, let us just stop, he is BEGGING for a lawsuit. Wish, I could sue his derrière! Maybe I will do that... I would like to make sure that the meaning is clear here... will the plaintiff stipulate that this invective was directed, in its whole, at the defendant, during a period in which he was employed under the defendant? I'm not asking for argument or explanation, but I wish to submit these into evidence under the clearest of terms: this was the plaintiff speaking to his employer, the defendant?
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Post by Magniloqueu Épiqeu da Lhiun on Jan 25, 2014 9:27:37 GMT -6
Your Honour,
I object to the admission of every evidence brought before the Court, because it is irrelevant.
In these situations, I have not been talking to the defendant a) in my capacity of TALOSSAssistant b) about anything related to the immigration of citizens c) about anything related to his capacity as Deputy Minister of Immigration
Regardless of this, I furthermore object to the admission of the last evidence, because it is irrelevant insofar as I have not addressed the defendant personally, but rather directed my words to the other parties involved in the dispute.
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Jan 25, 2014 9:39:45 GMT -6
Your second objection is overruled - if it is demonstrated to be relevant in some way, then it will hardly matter whether your words were directed at the defendant or not. As to your first objection, I take your point; defence counsel, what relevance do you take the evidence to have?
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Post by Sir Alexandreu Davinescu on Jan 25, 2014 9:40:00 GMT -6
If I were to insult my boss, very publicly and at considerable length, and never mentioned our actual work, I think that might still be relevant to my later termination. Certainly the fact of the lengthy public insults should be evidence in any question of that termination! Clearly, these should be admitted as evidence so I may make a robust defense of my client.
Furthermore, the plaintiff himself pointed the court to these posts, since he specifically mentions and links to this Wittenberg thread.
If the plaintiff objects to my characterization that these words were directed at the defendant, can he agree that they were certainly either directed at the defendant or specifically about the defendant?
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Jan 25, 2014 10:11:10 GMT -6
Plaintiff's initial objection is overruled; if he could answer the counsel's question, that would be appreciated.
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Post by Magniloqueu Épiqeu da Lhiun on Jan 25, 2014 10:15:36 GMT -6
Your Honour, esteemed defence, if I may furtherly explain the circumstance of the evidence submitted by the defence: None of these posts were intended to insult my boss (Deputy and Acting Minister of Immigration) in my honorary employment as TALOSSAssistant. In fact, none of these posts were ever intended to insult. I posted them as a frustrated citizen, complaining about a government official (Attorney-General) to be able to dwell in dreams of (perceived rightly) murder, without so much as an official apology of said government for the Attorney-General's behaviour. After all, the one person entrusted with prosecuting (alleged) criminals should not frivolously throw around death threats. Furthermore, I was frustrated about the way the then-AG handled laws of and in Talossa, dynamically and without mandate trying to apply Indian law, US military law, and so forth. I simply was concerned, as a citizen, about the many hats the defendant wore and the arising confusion of the defendant due to that circumstance.
And yes, I can agree that I did talk about the defendant.
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Jan 25, 2014 10:18:53 GMT -6
Thankyou. I will accept the first paragraph's explanation NOT as an answer to the counsel's question, but as the equivalent of your testimony for the prosecution on the matter.
The floor is returned to the defence.
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Post by Sir Alexandreu Davinescu on Jan 25, 2014 12:07:31 GMT -6
Before I continue, I'd just like to offer my congratulations to the plaintiff, who has substantially and swiftly advanced to become Deputy Minister of Immigration and Deputy Attorney-General. These are well-deserved promotions.
Your Honour, the plaintiff has admitted that he spoke these statements, in public and in the most heavily-trafficked area of civic conversation that we possess in the Kingdom:
"I will make it my personal agenda to bring you down, S:r Ardpresteir"
"I will petition the King myself, beseeching him to strip you of any and every office you possess"
"S:r Ardpresteir, although you pose as Attorney-General, meseems that you know very little about Talossan law."
"Do resign from your post of Attorney-General, as well, before things get messy. Thank you."
"Oh, let us just stop, he is BEGGING for a lawsuit. Wish, I could sue his derrière! Maybe I will do that..."
The plaintiff argues that this sort of behavior doesn't count as insubordinate because he was not speaking in reference to the plaintiff's specific position as TALOSSAssistant, or in reference to the Ministry of Immigration. But a moment's perusal of these statements, as well as the full posts from which they derive (submitted into evidence above), as well as the thread from which they derive (submitted by the plaintiff in his complaint) all show that this is clearly not a limited policy argument, but that instead it was a heated disagreement that spanned the full range of the defendant's offices and even encompassed him personally.
Regardless of any merit to the plaintiff's complaints or his right as a citizen to utter them, the plaintiff announced that he wanted the defendant stripped "of any and every office you possess." The plaintiff announced that he would "make it my personal agenda to bring you down, S:r Ardpresteir." And further, the tone is obviously contemptuous and hateful - while this emotion might have been motivated by the plaintiff's frustration on this unrelated issue, these are clearly personal attacks.
I submit to this court that such statements go well beyond any limited disagreement, and instead are personal and wide-ranging expressions of contempt, directed by an employee to his employer. The fact that the issue under discussion happens to be unrelated to the job is immaterial. To venture an example, if the two had been discussing rugby and had disagreed, it would be equally insubordinate for the plaintiff to declare that he was going to "make it my personal agenda to bring you down, S:r Ardpresteir." There is no context in which such statements are not insubordinate.
Accordingly, my client was acting in good faith and on the basis of good reason when he dismissed the plaintiff from his position with the stated reason of insubordination. As such, this action and the accompanying statement were not defamatory, as they reflected both my client's genuine belief and the actual facts of the matter.
I would beg that your judgment reflect these common-sense objections, which defeat the idea that it could be unjust to dismiss for insubordination an individual who had declared a personal agenda against his employer.
Before I rest my case and you render your verdict, I wonder if I could have until tomorrow to review the case as a whole and ensure that I have done my duty as defense counsel?
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Owen Edwards
Puisne Justice
Posts: 1,400
Talossan Since: 12-8-2007
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Post by Owen Edwards on Jan 25, 2014 18:16:02 GMT -6
Of course - so granted.
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Post by Sir Alexandreu Davinescu on Jan 25, 2014 19:04:41 GMT -6
Your Honour, the plaintiff has made complaint of a Class A Misdemeanour of a defamation, a Class I Felony under 946.12 subsection (3) of the Civil and Criminal Codes of the State of Wisconsin, has also requested that this court cancel the dismissal of plaintiff as TALOSSAssistant, and has requested several specific punishments be invoked against the defendant for these alleged infractions.
This court has already dismissed the felony charge, as well as the sentence suggested by the plaintiff. This leaves only the accusation of the misdemeanor crime of defamation, as well as the demand for court-ordered reinstatement. Both the claim of wrongdoing and the claim of employment rest on the plaintiff's assertions that his termination was not for the stated cause - insubordination.
I have already reviewed with this court the many angry and contemptuous statements made by the plaintiff towards the defendant just prior to the plaintiff's termination. The plaintiff argues that they are not relevant, because the plaintiff didn't "communicate with defendant in his capacity as TALOSSAssistant." I believe my last statement showed the fallacious reasoning at work. Even if we grant that an employer cannot justly dismiss an employee for angry tirades that are unrelated to their specific work - and I think that is a tenuous argument indeed! - these messages went well beyond any professional criticism, and over the course of their discussion the plaintiff announced an intent to crusade to have the defendant dismissed from all offices. This was an explicit threat that included the office of Minister of Immigration, which the defendant held at the time. It was clearly insubordinate, and the defendant certainly can't be blamed for thinking so or acting accordingly. There was no intent to defame.
If it is established that the plaintiff was fired for insubordination because he was insubordinate, then the plaintiff's termination was justified, along with the specific stated reason for that termination. He has no case for a claim of defamation, nor does he have a claim on the position from which he was fired.
Clearly, the plaintiff was angry and upset. During their argument, he said that things would get "messy" if the defendant didn't do as he was told - if he didn't resign "from all positions and/or offices whichsoever he possesses" (which would include Minister of Immigration), then the plaintiff would "make it my personal agenda to bring [the defendant] down." Indeed, before this suit, the plaintiff stated he might "sue his derrière." Shortly after these insubordinate attacks during the argument, when he publicly called for his boss to resign, the plaintiff sure enough did sue the defendant's derrière. This is a case motivated by personal animosity which exists between these two men, who have angrily argued in the past.
There was no intent to defame, since any reasonable person would think the plaintiff had been insubordinate if they read the statements in evidence. There were no damages, since the plaintiff has since ascended from TALOSSAssistant to Deputy Minister of Immigration (and Deputy Attorney-General). There's nothing here, except considerable acrimony on both sides.
The defense rests its case, reserving the right to counter-rebuttal if the plaintiff is permitted to make a statement in reply. Thank you.
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