06/24/2006

Judge rules defamation lawsuit may proceed

Supervisor sues three over mailing

BY IAN C. STOREY

istorey@record-eagle.com

TRAVERSE CITY — Elmwood Township's supervisor can pursue a lawsuit against three men who allegedly defamed her through mailings, a judge ruled.

Derith Smith filed suit in July 2005 against township residents who allegedly circulated an anonymous mailing her attorney, Grant Parsons, termed "character assassination."

Smith's complaint lists an "anonymous enterprise" of defendants that includes Donald Barrows, former trustee John Stanek and former supervisor Noel Flohe. Stanek and Flohe were ousted by township voters in the Leelanau County community in 2004.

The defendants also were behind a failed recall attempt against Smith in May.

The mailing included a 2004 disciplinary report that alleged wrongdoing during Smith's tenure as Suttons Bay village clerk, before she defeated Flohe to become Elmwood supervisor. Suttons Bay officials said they told the Flohe and Stanek group that Smith committed no wrongdoing.

Parsons said the opinion, issued this week by 13th Circuit Court Judge Philip Rodgers, allows Smith to continue the suit against Barrows, Stanek and Flohe.

Stanek referred the Record-Eagle to his attorney, Mark Grierson, who could not be reached for comment. Messages left for Barrows and Flohe were not immediately returned.

Rodgers dismissed a complaint against the village of Suttons Bay and manager Charles Stewart, and dismissed a claim that Barrows, Stanek and Flohe violated Smith's Constitutional rights. Parsons, though, said he was "tickled pink" by the ruling.

"This clears the way to go to trial and that is the significant thing because it is very difficult to bring a defamation case when you are a public official," said Parsons. "The only time you can is when it was done maliciously."

Stanek and Flohe contend they did not read the report before they helped mail it, but Rodgers ruled Smith was "entitled" to infer that "three competent adults did not stuff several hundred envelopes and affix stamps and mailing labels without learning the content of those envelopes."

Parsons said settlement discussions will begin June 26. If settlement isn't reached, the case will head to trial.

"These guys have been using a whispering campaign of wrongdoing," he said. "They have maliciously set out to use something that they all admit is not true."

See related story:

• Recall effort undergoes review by state officials - May 7, 2006
• Supervisor survives recall election - May 3, 2006