STANDARDS OF MALICE – INTENT
You be the Judge
*Red line notations point to alleged violations committed in my case – You be the Judge.
The standard of Malice was established by the U.S. SUPREME COURT NEW YORK TIMES vs SULLIVAN:
“Cases provide that a finding of malice allows for greater “treble” damages. Proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish (defendants’ briefs in multiple jurisdictions) a falsehood.”
The errors are obvious, and seriously affect the fairness, integrity, or public reputation of judicial proceedings, properly invoked where there are extraordinary circumstances or where the judgment may work an extreme and undue hardship.
You be the Judge. Does the pacer evidence attached in Bell’s case rise to the conduct level that you believe would constitute fraud?
1. A false misrepresentation, usually one of fact, made by the defendant.
2. The defendant’s knowledge the representation was false or was made with reckless indifference to the truth.
3. Misrepresentation were not of opinions but fabrication or false manipulation of material evidence
“In Matarese, 801 F.2d at 106, the trial courts instructions – “Intent is an essential element. Intent is the operation of the mind whereby a person aims to obtain the desired consequences of effects of his act. It is a mental operation that cannot be photographed. It is silent, secret, and invisible to the human eye. The intent of a person may be ascertained from his conduct, his speech or combination of both. Generally a man’s actions reveal an expression of his mind.”(internal quotations and citations omitted).
ELEMENTS OF MALICIOUS PROSECUTION
1. This is a continuous action that was premature until now as the original case in Re: The Bell Family Trust No. 02-05045 and 02-50477 has concluded.
2.The damages cited herein were caused in the original case as referenced above by the defendants listed herein.
3.Bona fide termination in favor of present plaintiff
4.The absence of probable cause for such proceeding
5.The presence of malice therein; and
6.Damage, conforming to legal standards, resulted to plaintiff.
1 The full text of the instruction is as follows:
Malicious, as that term is used herein, means characterized by or involving malice, not necessarily in the sense of being actuated by ill will or hatred, but in the sense of intentionally doing an act the known and necessary consequences of which are injury to the person. You are instructed that defendant was actuated by malice, within the meaning of this instruction, if in publishing the communication complained of, defendant acted not in good faith but in bad faith toward plaintiffs, and with an intent to injure them, or in willful, wanton and reckless disregard for their rights and interests.
Malice may be proved directly or it may be proved indirectly, that is, by reasonable inference or inferences to be drawn from all of the facts and circumstances in evidence. It is for you to determine whether malice on the part of defendant toward plaintiffs has been shown.
If the jury has found that the communication complained of was both false and malicious, then you are instructed that it was unprivileged. If, however, you have found that the communication, though false, was not malicious, then you must determine whether the communication made was qualified privileged. A “qualified privilege (sic) communication” is one made in good faith upon a subject matter in which the party communicating has an interest, or in reference to which he has or honestly believes he has a duty to perform. The communication is made in good faith if made in an honest belief as to its truth, arrived at after a fair and impartial investigation, or if made upon reasonable grounds for such honest belief as to its truth.
If you have found that the communication complained of was false and malicious, or was false and not qualified privileged, then you must further determine whether the communication was such as would expose plaintiffs to public hatred, contempt, ridicule or obloquy, or would tend to deprive them of public confidence.
The Standard of Malice was established by U.S. Supreme Court New York Times vs Sullivan, follows:
“The finding of malice allows for greater damages or/of punitive damages”
Many people have seen the term actual malice as puzzling, since the standard spelled out in the decision refers to knowledge or reckless lack of investigation, not to malicious intent. This term was not newly invented for this case, but was a term from existing libel law. In many jurisdictions, including Alabama (where the case arose), proof of “actual malice” was required in order for punitive damages to be awarded, or for other increased penalties. Since proof of the writer’s malicious intentions is hard to provide, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish a falsehood.
In Hoeppner v. Dunkirk Printing Co., 254 N.Y. 95 (1930), similarly, the court said: “The plaintiff alleges that this criticism of him and of his work was not fair and was not honest; it was published with actual malice, ill will and spite. If he establishes this allegation, he has made out a cause of action. No comment or criticism, otherwise libelous, is fair or just comment on a matter of public interest if it be made through actual ill will and malice.” (p. 106)
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974): Actual malice not necessary for defamation of private person if negligence is present Hustler Magazine v. Falwell, 485 U.S. 46 (1988): Extending standard to intentional infliction of emotional distress Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
WORDS which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se.
KOSMITIS, 28,585 AT 4,684 So 2d at 1180; LEMESHEWSKY, 464 So. 2d at 975;12 CRAWFORD, LA CIVIL LAW TREATISE; TORT LAW § 17.8 AT 315.