Idaho Supreme Court finds false caselaw quotations, after jury found false factual assertions.
In Posey v. Bushnell, the Idaho Supreme Court issued its ruling today, with the opinion written by Chief Justice Richard Bevan (and there is also a contemporaneous post noting the verdict when it was announced):
In June 2022, Posey performed at a drag show held in Coeur d’Alene City Park. The event drew members of the public, including minors. Bushnell did not attend the live performance, but she later obtained a video recording of Posey’s act. On social media, Bushnell published a description of what she saw, asserting that Posey had “flashed his genitalia” during the show and questioning why he had not been arrested. She then uploaded an edited version of Posey’s performance online, obscuring the area around Posey’s groin and claiming that the blurred portion concealed Posey’s “fully exposed genitals.”
Posey filed a defamation suit against Bushnell, contending that she had lied about the performance to attract social-media attention. At trial, the jury ruled for Posey, awarding him $926,000 in compensatory damages and $250,000 in punitive damages.
The court affirmed the verdict, primarily on the ground that Bushnell (who represented herself) failed to preserve the trial arguments or to raise them on appeal; an excerpt outlining the bases for the court’s decision:
Our review of Bushnell’s briefing reveals that most of the issues raised on appeal are unsupported by cogent argument or authority. Although Bushnell cites numerous authorities in support of her arguments, many do not support her positions because the quotations she relied on are fabricated or inaccurate.
In fact, of the twenty-two purported quotations Bushnell attributes to caselaw, statutes, court rules, pattern jury instructions, and the Idaho Constitution, only six are accurate quotations, albeit with minor spelling errors. Bushnell’s briefing also misrepresents caselaw, statutory law, court rules, and pattern jury instructions. For instance, Bushnell cites “Jones v. Lynn, 155 Idaho 439, 445 (2013),” (italics in original), as holding that errors occurring during voir dire require reversal even without a contemporaneous objection, when those errors undermine the fairness of jury selection. No such decision exists….
Many of Bushnell’s arguments on appeal depend on fabricated or misrepresented authority. Once that authority is set aside, those arguments lack the cogent legal support necessary for appellate review… Bushnell has also failed to support a significant number of her issues with cogent argument. Many of her issues are presented in passing with very little explanation. Others are so amorphous that it is almost impossible to determine what she is arguing….
Finally, several of Bushnell’s arguments rest on imagined or misrepresented facts from the record. For example, Bushnell claims that the district court erred by not adopting her proposed punitive-damages instruction based on Idaho Civil Jury Instruction 9.20. But the record clearly shows that the district court adopted instructions aligned with 9.20 that Bushnell requested. An appellate argument is only as sound as the record on which it rests. When a party misrepresents the record, the resulting argument cannot establish reversible error because it attributes actions to the district court that it never took….
The court did address one substantive argument, however:
We have declined to address nearly every issue raised by Bushnell on appeal except one: whether the district court erred as a matter of law in ruling on summary judgment that Posey was not a limited-purpose public figure. Bushnell argues that this ruling lowered Posey’s burden of proof and materially altered the jury instructions.
We disagree. Even if the district court had erred in ruling that Posey was not a limited-purpose public figure, the district court instructed the jury that, in order to award punitive damages, it must find actual malice. The district court further instructed the jury that actual malice existed if Bushnell knew the defamatory information was false, or acted with reckless disregard for its truth….
The jury unanimously found on the special verdict form that Bushnell knew the information she communicated was false or that she acted with reckless disregard for its truth. In other words, even assuming the district court erred, any such error would be harmless because the jury, by clear and convincing evidence, determined that Bushnell acted with actual malice, which would authorize Posey to recover compensatory damages….
Wendy J. Olson (Stoel Rives LLP) represents the plaintiff.
