second count asserting false light invasion of privacy as a consequence the defendant in response to that complaint filed a few six thousand nine hundred ninety two six fifteen combined a motion to dismiss essentially when judge little considered the case his concern was whether or not ms vickers duncan who was acting as a public official in her capacity as an assistant state's attorney for mcclain county when she interacted with the defendant i argued before judge let all that in this particular instance the factual dynamic of the relationship between dentist tactic co's who was not a li in the case and the assistant state's attorney sheila vickers duncan was a different venue typically would have where someone would come in and directly interact with the state's attorney i asserted to judge a little that in this particular case based on the manner in which the come claim and the facts in the complaint were alleged mr tactic close did not get to take advantage of the fact of asserting that ms vickers duncan was a public official the defendant argued that in particular the statutory provision cited in the decision of people versus states where there was a criminal consideration of an assistant attorney general acting as a public official for purposes of individual being charged criminally with violating a statute of inappropriate or threatening conduct to a public official the defendant in this case argue findings in the new york times solving case that it is not clear here that ms vickers duncan was a public official she worked for the state's attorney yoder she appeared in a traffic proceeding where the litigant in that traffic proceeding was actually this seventeen year old son of the defendant in this case dennis tactical never had interaction with sheila vickers duncan want to sit down as the deciding whether  i think it matters because the case in new york times versus sullivan says we need to examine and evaluate whether the person interacting with this individual had the belief that this public official was charged with carrying out very specific governmental duties and the new york times sullivan case factually is not the same as the case here but i think it does  perform the member who's the person who speaks of the well i think those duties are of significant consideration but in this particular case when you evaluate what ms vickers duncan was doing nlike a police officer who has the discretion and kirsty case indicated that you know they have the discretion to stop people to investigate particular things to make determinations about how they're going to spend their nine hours interacting with the public and then they have discretion in terms of making an arrest or giving a citation or giving a warning and to that extent i prosecutors go well this court to be reversed so conclude well no i'm i'm indicating to to this court i guess that the determination of her as a public official if you look at the dict in the new york times sullivan case moriarty case where the psychiatry s was being discussed in an article in an editorial article and the court in that particular case found a lot of time to decipher green and dissecting what is opinion versus what is defamatory i think if if we looked at the comments that were made by mr tactic coast with that same template that was filed in the moriarty case the fact that it appeared as a letter to be added or doesn't in and of itself say ok now this is only opinion there may be argument for counsel to state that the bullying comment was the opinion of dennis tactic  however mr kerik to close in this particular case said sheila vickers duncan made an untruth to my son she loved vicars duncan told him that there were witnesses present when they were not and i think well i alleged in the complaint that he was not present but he didn't have an actual knowledge of the events that had occurred and i would assert to your honor's that under the new york times sullivan tast actual malice can the reckless disregard of an individual to determine whether or not those facts are truthful and in this instance i do think that we pled sufficient facts were but you didn't  term actual malice but not because i believed that that's conclusory and so instead i own lunch to the actual factual things that are deemed true at this stage of the proceeding which is that dennis tactic carlos was not a litigant in the case that dennis tactic host did not have personal knowledge of any of the events that occurred in jena where you have twenty eleven and so to that extent i argue to judge that all that if you assume those facts to be true that mr tactic owes was not in the courtroom that mr tactic posts have no personal knowledge and that he had no basis to know the truthfulness of what he put in the article other than to believe that his seventeen year old son told him the truth i believe to based on those factual allegations taken in the light most favorable to the plaintiff and taken in well i tried to argue it alternatively that even if the circuit court was going to say that sheila vickers duncan was a public official that we had gone far enough in our factual allegations in count one and then of course with respect to count to false i'd invest in of privacy her status whether she was a public official or not a public official didn't matter because with respect to trying a false light invasion of privacy claim i had to meet that threshold of actual malice as to her and judge little gave me an opportunity to amend the pleading but they're essentially weren't any more facts that i could all pledge did you argue to him in the trial that you put sufficient parents to make it actually meryl's yes i did and i also argued that in the motion to reconsider that we had pled sufficient facts because of mr tactic cosas absence from this entire process and the fact that he relied upon his seventeen year olds recitation of what happened on that particular day and then we even went so far after the defendant filed their motion which sets forth specifically that he had other xchange is with the state's attorney in fact while you have me i wonder where william yoder and defense to a defamation but that example of rights the issues that were considered by judge little because that truth is a defense mechanism in my assertion would not come into play until the the fact finder weighs out whether she living in is telling the truth or whether dennis tactic owes who was an absent litigant is telling the truth or rather his son testifies to what in particular would have occurred ultimately though she dismissed the case  why i think that's supposition argued by the other side but there are certainly no facts that establish the particulars of why and i think there's an affirmative allegation by the defense that a police officer incident with this there and certainly that may come out in the factual proceedings in this case buff dentist tactic osa can't testify to one of those instances because from his perspective it's all hearsay it's not anything that he has personal knowledge of so your honor had asked earlier would this be a different dynamic if the son had actually made these assertions and certainly i guess i would not be able to argue that it was done with actual malice if the son did it because the son would have had a basis in fact to know and a certain way but in this instance i do think that it's reckless disregard for dentist tactic owes to make these statements about untruths by a lawyer which essentially i tax her integrity tell the truth and that that would be actual malice if we had a publisher who had it up thirty hand knowledge an incident where a police officer was alleged to have helped someone in a state prison and that reporter reported that without having any reliable source i believe that the case law would hold that reporter liable for a patch will now alice for the reporters failure to investigate the sources of the knowledge that that individual was in party and making statements about finally the defendant will argue in this case that there is some ability for the defendant to assert the innocent construction in this case and i would assert that with respect to a couple of things that are stated in that letter to the editor if there is no innocent construction if you consider the that surround the publication that occurred in the newspaper because he essentially alleges that the state's attorney lied to his son in order to gain advantage at a court proceeding counsel you pro think it was in my motion to reconsider and i think i also didn't reply but during that war all argument when we appeared before judge little we talked at length about the public official and whether or not ms vickers duncan was a publisher a public official and i know you during that argument that we argued even alternatively if she isn't sure if she is i still could make a proper pleading because of i may have judged i don't know that that even came up until we had oral argument about the public official capacity and i was arguing the false light invasion of privacy and that motion to dismiss same as count two and i was very specific about the fact that mr wrong tactic owes had no personal knowledge so i do believe that i argued that to judge little when we had our initial oral argument i'm not undermining motion to dismiss and i know that it came up when we argued our motion to reconsider in front of him because the actual malice standard clearly applied on count t eighty or the cases that went before that i think everyone agrees a police officer like a fish on a bad man or whether he's a private or whatever they call the lowest more so then as a prosecutor a prosecutor contrary to what counsel has said has the right to proceed has the right to continue if they are ready to p the right to dismiss that impacts the public in every way possible because you can lose money to a fine you can go to jail if the offense is jailab shandra act in traffic court every day with the public she had the power as i said to proceed to dismiss the case and that's exactly what she did and your honor you are correct she dismissed for lack of a with us that's in the common law record now i mean you would get to stay in skates which this court decided some years ago one it was a combined motion to six fifteen and to six nineteen i see with just a little rule and i discussed it paragraph for the six all but it also comes under two six fifteen in the sense that if she hasn't had a proper cause of action i could have judgement right then and there on the pleadings it's not just and i understand  complaint the first statement was there were witnesses present who were not you know standing on its face i mean per se it's got to be it's got to hit you in the face that you are really calling someone out bad is it's not it's just not per se liable and i don't believe it's actionable on its face the i i'm not going to stand here and say no she did i think it's been many many months my best recall of what we are going to judge what i argued was paragraphs fourteen nineteen twenty twenty one twenty two twenty six twenty seven all our conclusions of the plague are there is not one fact and i'm accept what this wall has alleged in her complaint as two paragraphs twenty three and twenty four i've been just absolutely no such language anywhere in those two statements attributed to mr practicals it just isn't there and so often left with was first of all there were witnesses present who work at turn out to be true she dismissed for lack of a witness the second  upon layer of innuendo and and all the other things to even get to that point in their statement about bullying which clearly stated with what i perceived to be the bullying of an eighteen y prosecutor something that is very very important in our society and it carries both the good and the not so good with it a little sadek and even have the potential for a assistant construction at the public opinion we had just the plain old good old first amendment right to say what you think none of this says there's not one fact in fact coun in her opening argument i didn't come in because i didn't have any more facts than what i already have a laugh i mean what we've got in that complaint that's yeah by as mission of that article to be able to see something past just a disgruntled parent and one other thing i'd like to point out is every time we pick up a newspaper and we read something by a news reporter that reporter generally wasn't present that report or just as taking what was told to them they are to fact check yes and behind the scenes of all  forth and those facts were tossed back and forth with each other and when it got to the point of the opinion page on the paragraph mr tactic  honor with respect to your question i did have occasion to look back at the pleadings and also what judge little's order that he heard and he was very specific about the fact that the plaintiff's complaint with respect to actual malice wasn't sufficient and we argued that even in paragraph six and seven of his order he basically says ok if you want to assume that she is a public official then we go to that actual malice standard and he says the facts don't rise to that level or that you know they  inferences that with respect to count two the false light invasion of privacy judge little clearly knew that with respect to acknowledge it clearly was the actual malice standard so if it wasn't stated specifically in my responses to counsel's motion certainly the thrust of the argument at that time was the public official capacity but i believe that i did argue to the judge about what  are in my complaint and can on the basis of any of the facts well plaid find in particular based on count two that we did a latch that actually had malice and that we didn't talk about that with respect to those particular things so i recognize there's no transcript bought that argument was set forth in our complaint and i believe argued before the trial court and i think this work can make a determination based on the allegations  at an abuse of discretion standard that might be different but here this is actually a de novo review based on the pleadings and so i'm not certain that i'm marshall by what i actually put in writing if the allegations of the complaint meet the actual malice standard and i believe in this case that we did allege sufficient facts on that basis i would ask that the court reversed thank you counties will will take th