Oakland judge says Bentivolio's defamation suit against rival can proceed
An Oakland County judge has denied U.S. House hopeful Rocky Raczkowski's motion for summary judgment in a defamation lawsuit filed by Republican rival candidate and former U.S. Rep. Kerry Bentivolio.
Bentivolio sued Raczkowski in May seeking $10 million in damages, alleging that Raczkowski conducted a “malicious defamation campaign” about his military record, including questioning his medals.
Raczkowski has called the lawsuit frivolous, while maintaining there are credibility issues regarding some of the Vietnam-era medals that Bentivolio has claimed in political campaigns and which Raczkowski investigated.
Both men are U.S. Army veterans seeking the Republican nomination in next week's primary election for the in the 11th District, where U.S. Rep. Dave Trott is retiring.
Oakland County Circuit Judge Hal Jarbou ruled Friday that Raczkowski's alleged statements about Bentivolio's military record and medals being "fake" or "fictitious" are actionable because they are "objectively verifiable and do not implicate the first Amendment," as Raczkowski had claimed.
As a public figure, Bentivolio would have to meet a high bar in court — proving that Raczkowski's alleged statements were defamatory falsehoods made with "actual malice," such as reckless disregard for the truth.
But Jarbou concluded there is sufficient evidence provided by Bentivolio to submit the issue of actual malice to a jury, denying Razckowski's motion for summary disposition.
"A reasonable jury could find clear and convincing evidence that defendant published the above statements with knowledge that they were false or with reckless disregard of whether they were false or not," Jarbou wrote.
Bentivolio called it a "small win for all my fellow veterans who have had their valor stolen."
Raczkowski's attorney, Steven B. Haffner, said Tuesday he and his client are still evaluating the opinion and deciding on their next steps.
Raczkowski has said he doesn't question Bentivolio's service in Vietnam and never intended for the dispute over his medals to become public.
He says he spoke privately to Bentivolio and to his campaign staff but never publicized the issue. Bentivolio did that when he filed suit.
"I’m interested in him knocking it off. What do I get for it? I get a crazy response," Raczkowski said in an interview last month.
In court records, Raczkowski accuses Bentivolio of filing a "meritless claim" in the hopes of gaining political advantage on Election Day.
He says Bentivolio admitted to him in 2012 that he did not have in his possession the medals in dispute — including Bronze Star Medals, a Silver Star and three Purple Hearts — and admitted there was no public record of the medals.
Raczkowski argued in court records that Bentivolio cannot establish that his alleged statements contained a defamatory falsehood because they are substantially true, or constituted "mere opinion," protected by the First Amendment.
In his motion for summary judgement, Raczkowski said he had conducted his own investigation and reached the "inescapable conclusion that Bentivolio had not been forthcoming and entirely truthful when he had claimed, in several campaigns, to have been awarded the Bronze Star Medals, a Silver Star Medal, three Purple Hearts and a Combat Infantry Badge."
Bentivolio responded in court records saying that Raczkowski's "investigation" consisted of a single call to Fort Benning in Georgia, while military personnel records are kept at the National Personnel Records Center, a division of the National Archives in St. Louis.
He contends that Raczkowski can't rely on the "substantial truth" doctrine because his alleged statements are verifiable facts and not opinion, providing a copy of his military record as evidence.
The Detroit News independently obtained Bentivolio's military record, including a list of his medals, via a records request with the National Personnel Records Center.
They include a Vietnam Service Medal with two Bronze Service Stars; a Combat Infantryman Badge; an Army Commendation Award; a Meritorious Service Medal; an Iraq Campaign Medal; and a Global War on Terrorism Service Medal, among others. But there is no Silver Star, and there are no Purple Hearts.
The Bronze Service Stars recognize two tours in Vietnam and are distinct from a Bronze Star Medal, which is awarded for heroic or meritorious achievement or service.
Bentivolio, 66, served in Vietnam from 1970-71, with a rank of sergeant first class at discharge. He also served in Iraq from 2007-08 as part of the Michigan Army National Guard.
Raczkowski, 49, served 26 years in the Army, deploying twice to the Horn of Africa, based out of Djibouti, from 2002-03 and then 2008-09. He retired in 2014 as a lieutenant colonel.
The dispute between Raczkowski and Bentivolio dates to June 2012 when they met to talk. Bentivolio's then-campaign manager and a veteran friend of Raczkowski's also attended the meeting.
At the time, Bentivolio was seeking Raczkowski's endorsement for his first run for Congress in the 11th District, Raczkowski said. Bentivolio disputes he was seeking an endorsement.
The Detroit News obtained a partial recording of the 2012 meeting.
In the recording, Raczkowski tells Bentivolio that he inquired with the Combat Infantryman Badge command office at Fort Benning and was told they had no record of Bentivolio's Combat Infantryman Badge award.
Bentivolio says, "My records for my awards for a Silver Star and three Purple Hearts disappeared, too." Bentivolio adds, "There’s no proof."
In the recording, Raczkowski points out that Bentivolio should still have his medical record to show he was wounded, but Bentivolio says that was lost, too.
Raczkowski later presses him: "So, what happened to the Silver Star?"
"I never read it. I just know that I was put in for it," Bentivolio replies in the recording.
William Belcher, the friend of Raczkowski's who attended the 2012 meeting, said they left "shaking their heads a little bit."
"He said, oh well, the commander didn't like me, and I think that's why they got lost," recalled Belcher, an Air Force veteran who lives in Farmington.
"That might happen once but three times? Come on."
He added: "I'm used to people building up their military careers and the great things that happened to them in the military, but that was going a little too far."
Bentivolio denies that he ever claimed he was awarded a Silver Star or three Purple Hearts.
Instead, he said that in 2012 he was explaining that the Army lost the records he submitted to be considered for recommendation for a Silver Star and Purple Heart.
"To be asked those questions from Rocky 40 years later after the fact with me claiming awards that 'disappeared' from a system back then that had no copy machines or computers per se is a monumental task to recreate. There are no affidavits, no sworn statements, no remembrance of awards from former veterans," Bentivolio said.
Bentivolio said he has been recommended for "numerous awards that I never received because they were either disapproved or lost in a paper boondoggle."
"There is no record of recommendations for a Silver Star or Purple Hearts," Bentivolio said.
"It was my understanding I was recommended but that is the last I heard. You are talking 40-plus years ago."
Mike Martindale contributed