2018-04-15 / News

Konschuh can expand case, judge rules

BY ANDREW DIETDERICH
810-452-2609 • adietderich@mihomepaper.com


Judge Byron Konschuh Judge Byron Konschuh PONTIAC — Lapeer County Circuit Court Judge Byron Konschuh can amend a defamation lawsuit he filed last year against Lapeer County and five individuals to include comments made about him publicly since that time.

Oakland County Circuit Court Judge Shalina Kumar granted a motion on Wednesday that allows Konschuh to file a second amended complaint.

Kumar gave Konschuh 21 days to do so.

One of Konschuh’s attorneys, Michael Kowalko, argued in Kumar’s Pontiac courtroom on Wednesday that “what’s good for the goose is good for the gander.”

The comment was in reference to a previous ruling made by Kumar that allows the county and individuals (in a counter-suit) to use Facebook posts made within the same timeframe.

Kowalko said “we’re seeking to do the same thing.”

Kowalko said the amended complaint aims to include statements made by Dana Miller, treasurer, Lapeer County, and John Miller, former assistant prosecuting attorney, Lapeer County.

They are two of five individual defendants sued by Konschuh last May. The other defendants are John Biscoe, controller/ administrator, Lapeer County; Tim Turkelson, former prosecuting attorney, Lapeer County, and another former assistant prosecutor, Cailin Wilson.

Konschuh’s suit relates to his felony case in which he pled no contest to a misdemeanor (public officer — failure to account for county money, MCL 750.485) in early 2016. Following a delayed 90-day sentence, the charge was dismissed and Konschuh returned to the bench.

The civil suit filed by Konschuh originally included six counts: malicious prosecution, abuse of process, invasion of privacy, libel/slander, tortious interference with contractual relations, and gross negligence. Through an amended complaint filed in June, three more counts were added. Konschuh seeks more than $100,000 in damages.

The defendants filed a counter suit in July.

The counter-suit claims defamation, conversion, and breach of fiduciary duty and they want Konschuh to pay back about $100,000 they feel he owes taxpayers who had to foot the bill while he was on paid administrative leave for about 18 months.

Kumar (a visiting judge hearing the case) ruled in February that the counter suit could be amended to include Facebook posts the counter plaintiffs feel are defamatory.

Attorneys for the county and five individuals asked the deadline for discovery be extended in light of the ruling.

Kumar granted an additional 90 days for discovery, meaning cutoff now is set for the end of June.

A trial date was set for Sept. 13. The case is set to be held in Lapeer County, though motions are being heard in Oakland County.

In a motion seeking approval to file a second amended complaint, attorneys for Konschuh sought to expand Konschuh’s claims of invasion of privacy and slander/libel by including statements made since the original filing.

In the motion, attorney Tom Pabst (another of Konschuh’s attorneys) pointed to a letter to the editor of The County Press that was written by John Miller in August 2017 in which Miller claimed, among other things, he “would have convicted (Konschuh) at trial.”

“They don’t have immunity to write a letter to the editor of your paper and call Judge Konschuh a crook, a felony crook, and the things that they called him,” Pabst told The County Press last week. “It’s one thing to say that in a court of law, in pleadings, where maybe it is immune, but it’s a whole other thing to go out in public and say it to a newspaper for goodness sakes.”

Pabst also points to an Aug. 27, 2017 story in The County Press in which three of the defendants (Biscoe, Dana Miller, and John Miller) spoke about the case. The Millers said they believed there was an effort to put political pressure on Finnegan by having someone challenge her for re-election in 2016.

In an exhibit attached to the motion, Dana Miller recently said during a deposition that she stood by her story.

In Pabst’s motion, he calls the statements “blatantly false and libelous.”

Further, he told The County Press late last week the claims are “absolutely, provably false.”

“Deana Finnegan herself said that’s ridiculous,” Pabst said.

Linda Davis Friedland, an attorney representing Lapeer County and the five defendants with Cummings, McClorey, Davis & Acho PLC, said in court Wednesday that Dana Miller believed the statements to be true when she made them in August.

“Judge Konschuh is attempting to label a simple misunderstanding on the part of Dana Miller as defamation,” Friedland told The County Press. “However, because Judge Konschuh is a public figure, he must show malice, meaning knowledge of falsity or reckless disregard for truth or falsity. We do not believe that he will be able to meet this standard, so we expect to have summary disposition awarded in Dana Miller’s favor.”

John Miller told The County Press “It’s sad that they’re trying to essentially silence people for speaking the truth, and for speaking what they believe in.”

Miller noted that irony of the non-party Facebook users in the case claiming protection via the First Amendment in various postings made about him and the other defendants/ counter-plaintiffs on the social media platform.

“They want it both ways,” he said. “They want to be able to say what they want to say without any repercussions, but as soon as we speak our minds, all of the sudden that’s defamatory.”

In her ruling Wednesday, Kumar limited the scope of the second amended complaint to the statements made in the press by the Millers.

Further, Kumar is not allowing an email exchange between John Miller and Turkelson to be included in the second amended complaint. In the exchange, Miller and Turkelson state, among other things, that Konschuh is “being a bitch again.”

Because the exchange occurred outside the scope of the timeframe Kumar is allowing in the case, she ruled against its inclusion in the second amended complaint.

Additionally, she ruled a recent letter written by Lapeer County Prosecuting Attorney Mike Sharkey could not be included in the second amended complaint, dismissing it as hearsay.

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