State justices say lawsuit over gay remark is frivolous

Jason Smathers — 6/05/2008 12:57 pm

A lawyer for an anti-gay activist must pay a gay rights group after
the state Supreme Court ruled Thursday that his lawsuit was frivolous.

Milwaukee lawyer James Donohoo will have to pay $87,000 plus interest
in court costs and attorney's fees for a defamation lawsuit filed
against Action Wisconsin, a gay rights advocacy group now known as
Fair Wisconsin.

With the interest and other expenses included, Donohoo told The
Associated Press that he now owes closer to $120,000.

"I'm a Christian. I believe in Jesus Christ as my lord and savior,"
the Milwaukee attorney told the AP. "I'll have life everlasting. I
can use that assurance to try to deal with this decision and the
ramifications of it."

Attorney Tamara Packard, who represented Action Wisconsin along with
attorney Lester Pines, said they are delighted with the ruling.

"The issues of free speech are at their apex when you're dealing with
political speech," Packard said. "This is a vindication of our
client's ability and need to bring to the public's attention
threatening and scary statements made by a public figure."

Donohoo filed a defamation lawsuit over a 2003 press release that he
argued defamed his client, the Rev. Grant Storms. Storms gave a
speech the same year at the "International Conference on Homo-
Fascism" in Milwaukee where, according to a recording, he told gay
rights opponents that the failure of petitions and lobbying meant
they should "start taking it to the streets." Storms then mimicked
gunshot sounds and said "There's twenty! Ca-ching, glory, glory to
God, let's go drive through the McDonald's and come back to get the
rest."

An Action Wisconsin press release said Storms was advocating murder
of gays and lesbians. Donohoo filed suit against the group, saying
their assertions were false and defamatory.

Milwaukee Circuit Court Judge Patricia McMahon dismissed the case in
2005. When Donohoo then filed a motion for reconsideration, McMahon
ruled Donohoo had not properly investigated the claim before filing
the lawsuit, should have known it was frivolous, and ordered him to
pay Action Wisconsin's costs and attorney fees.

An appellate court disagreed with the assessment of the fees and
overturned that portion of the ruling in May 2007.

The state Supreme Court's 4-3 majority opinion Thursday reverses this
decision, stating Donohoo failed to provide any evidence that Action
Wisconsin acted with malice. As such, the court was within its bounds
to declare Donohoo's lawsuit frivolous.

The "circuit court concluded that there was no basis in fact or law
that would support a claim that Action Wisconsin's statements were
made with actual malice. Accordingly, we conclude that the circuit
court's determination was not an erroneous exercise of its
discretion," wrote Justice Ann Walsh Bradley in the majority opinion.

Justice Patience Roggensack, along with Justices Annette Ziegler and
David Prosser, supported the appellate decision saying the case had
enough merit to proceed to a jury.

"Stated otherwise, a reasonable jury could find that Action Wisconsin
knew the statement was not true or made it with reckless disregard as
to its truth, because the statement was part of Action Wisconsin's
attempt to promote one side of a highly charged political issue."
Roggensack wrote in the dissenting opinion.

But the court majority said the validity of the case rested on
whether or not Donohoo could prove malice on the part of Action
Wisconsin, not whether the statements were false.

Packard said the court costs from subsequent cases exceed the amount
awarded and that they may have to return to trial court to argue for
further payment.