Opinion
NO. 2012-CA-000575-MR
05-31-2013
WARREN JACKEL APPELLANT v. JUDY GREEN; MARY C. WOOLRIDGE; DAVID TANDY; CHERI BRYANT HAMILTON; DEONTE HOLLOWELL; KEN FLEMING; TOM OWEN; RICK BLACKWELL; VICKI AUBREY WELCH; BOB HENDERSON; MARIANNE BUTLER; KELLEY DOWNARD; HAL HEINER; STUART BENSON; DAN JOHNSON; JAMES PEDEN; MADONNA FLOOD; BRENT ACKERSON; JAMES MIMS; TONY HYATT; AND BARBARA SHANKLIN APPELLEES
BRIEFS FOR APPELLANT: Philip C. Kimball Louisville, Kentucky BRIEF FOR APPELLEE: Michael J. O'Connell Jefferson County Attorney Louisville, Kentucky I.G. Spencer, Jr. William P. O'Brien Assistant Jefferson County Attorneys Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY SHAW, JUDGE
ACTION NO. 11-CI-004461
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Warren Jackel filed a defamation claim for his erroneous inclusion on a list of top offenders who failed to pay liens relating to improper maintenance of their properties (the list). His claims were dismissed pursuant to summary judgment on the grounds of absolute and qualified immunity.
By 2010, many neighborhoods in the Louisville/Jefferson Metro area contained neglected properties that were not in compliance with Metro and Commonwealth Codes and Regulations. The Louisville Metro Inspections, Permits & Licenses Department (Metro I.P.L.) had authority to inspect properties, impose fines and liens for code violations or charge for the correction of certain conditions. Some properties remained in poor condition even after acquiring large liens.
Constituents complained to the Louisville/Jefferson County Metro Council (the Council) about the neglected properties. The Council determined that it needed to address this problem by publicizing the responsible property owners' identities. While the property liens were a matter of public record, there was no comprehensive list of offending property owners stating the total amounts owed by each owner. The Council passed a resolution in June 2010, to obtain and publish a list of the top one hundred violators.
Barbara Shanklin, a member of the Council and the presiding chairperson of the Council's Community Affairs Committee, contacted James Mims, the Director of Metro I.P.L., and requested that Metro I.P.L. compile the list.
Shanklin promoted the future publication of the list at a July 1, 2010, news conference and made statements regarding the property owners on the list. On July 28, 2010, a WAVE-TV news story broadcasted her statement: "We want all the names of the slumlords in the paper just like we do deadbeat dads . . . there is responsibility to this community just like a responsibility to families."
Pursuant to an Open Records Request made by WAVE-TV, a preliminary list was released to WAVE and published on its website on July 28 and 29, 2010.
As the list was compiled, several changes and corrections were made as individuals and entities became aware of the Council's intent to publish it. Mims, on behalf of Metro I.P.L., submitted the list in its final form to the Council in September 2010.
On September 9, 2010, the Council passed an amended ordinance, O-170-08-10, which mandated the compilation and publication of the list. Because of the extensive quantity of liens, the decision was made to publish a list of those offenders who owed $12,000 or more in liens, which consisted of about 263 offenders. The Council authorized the publication of the list with a paid advertisement in the Courier-Journal. The $20,500 cost of publication was paid from participating Council members' discretionary neighborhood development funds.
On September 23, 2010, at a news conference to announce the formal publication of the list, Shanklin stated:
On July 1st, the Metro Council announced it would publish this list . . . We have given everyone ample time to pay up and clean up properties that have become eyesores in many areas of our community. Now it is time to shine the light on the biggest offenders in our community.That day, the list was published in the Courier-Journal and on the Metro government's website. The Courier-Journal advertisement contained each violator's name, address, and total amount owed and directed readers to the website for more information. The website gave the same information but also listed the owners' delinquent properties by address and the specific amounts owed on each property.
Jackel is a property owner who buys distressed properties and rehabilitates them for sale. He was incorrectly listed as owing a total of $12,364.62 in civil penalties on four properties he owned. Jackel should not have been listed as owing anything on three of the properties because he recently purchased the properties at a sale conducted by the Master Commissioner of Jefferson Circuit Court and the preexisting liens were extinguished by the sale. The sale and transfer of these properties were communicated to Metro I.P.L. by another agency, but not the conditions of the sale, which resulted in Jackel's erroneous listing. Jackel did owe $141 on the other property that was listed.
On September 29, 2010, in another WAVE-TV broadcast, upon being informed that Jackel should not have been on the list, Shanklin stated that she did not think a retraction was warranted because Jackel received notice from Metro I.P.L. regarding the liens, and it was up to Jackel to straighten things out before the list was published. A Metro I.P.L. spokesman noted in the same broadcast that Jackel was not informed about the liens prior to the publication of the list.
In December of 2010, Tony Hyatt, the paid spokesman for the Council's majority caucus, and a Metro employee made a statement regarding Jackel's incorrect inclusion on the list in an interview with LEO, a weekly publication circulated throughout Jefferson County. Hyatt explained that Jackel's complaints were those of "one property owner who spent two decades rehabilitating homes and was wrongly put on the list . . . . It's always a story to have one person who says 'I was unjustly put on the list,' but what about other folks [who belonged on the list]?"
On January 11, 2011, Metro I.P.L. apologized for the erroneous listing of Jackel's name and the four properties he owned. Later, the online listing was corrected to omit Jackel's listing.
Jackel's defamation claims originate from Shanklin's July statement, his erroneous inclusion on the list, Shanklin's September 23rd statement and Hyatt's statement. Jackel sued Metro employees, Hyatt and Mims, Shanklin and the other members of the Council who appropriated money from their districts' discretionary funds to pay for the publication of the list: Judy Green, Mary C. Woolridge, David Tandy, Cheri Bryant Hamilton, Deonte Hollowell, Ken Fleming, Tom Owen, Rick Blackwell, Vicki Aubrey Welch, Bob Henderson, Marianne Butler, Kelley Downard, Hal Heiner, Stuart Benson, Dan Johnson, James Peden, Madonna Flood and Brent Ackerson (collectively the Council members). Jackel asserted that he had established defamation per se because the defendants' statements accused him of criminal conduct, subjected him to public scorn and imputed to him an unfitness for his trade. He argued that the defendants were liable for Shanklin's media campaign because they authorized, condoned or ratified her statements and were slow or failed to correct misimpressions by the public.
The Metro employees and Shanklin filed individual motions for summary judgment and the remaining Council members filed a joint motion for summary judgment. The circuit court granted all motions for summary judgment. The court determined the Metro employees' actions were protected under qualified official immunity. The court determined that the Council members, as legislators, had an absolute privilege to publish the material under the speech and debate clause, and Shanklin's statements were protected by absolute privilege, because they were made in support of the Council's legislative action.
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. "The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996); CR 56.03. The existence of a privilege presents an issue of law which we review de novo. Smith v. Martin, 331 S.W.3d 637, 640 (Ky.App. 2011).
Granting of a summary judgment motion "should only be used 'to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant.'" Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 483 (Ky. 1991) (quoting Paintsville Hospital Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)).
We first address whether the two Metro employees were protected from suit under qualified official immunity. "Qualified official immunity applies to the negligent performance by a public officer or employee of (1) discretionary acts or functions, i.e., those involving the exercise of discretion and judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee's authority." Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001) (internal citation omitted). Good faith is not satisfied if the employee was objectively unreasonable, willfully or maliciously intended to harm the plaintiff, or acted with a corrupt motive. Id. at 523.
We affirm the grant of summary judgment to the Metro employees. We agree that their actions were protected under qualified official immunity.
When Hyatt responded to the press as a paid spokesman, he was not charged with making a specific response, but exercised discretion. Hyatt's statement was objectively reasonable, not intended to harm Jackel and not the result of improper motive.
Mims directed the production of the list, which was compiled from an amalgamation of public information from existing records in a manner intended to eliminate as many inaccuracies as possible based on the information available to the Metro I.P.L. Mims's decision to compile the list, the manner in which it was assigned, performed and revised was discretionary and objectively reasonable. We note that qualified immunity would also appear to be an available defense for Council members and Shanklin.
We next address whether absolute legislative immunity based upon the speech or debate clause precluded the claims against the Council members and Shanklin for the publication of the list. Section 43 of the Kentucky Constitution contains a speech or debate clause that grants members of the legislature absolute immunity "for any speech or debate in either House they shall not be questioned in any other place." This is identical to the speech or debate clause in the United States Constitution. Baker v. Fletcher, 204 S.W.3d 589, 593 (Ky. 2006); U.S. Const. Art. I, § 6, cl. 1. KRS 83A.060(15) provides that the Kentucky speech or debate clause also applies to members of city-level legislative bodies. Jacobs v. Underwood, 484 S.W.2d 855, 857 (Ky.App. 1972).
Under the speech or debate clause, the Council has absolute immunity, which prevents the Council members from being sued for their official legislative actions. Baker, 204 S.W.3d at 593. Legislative actions are actions taken in the execution of legislative duties during a session. Legislative actions include voting, reporting, conducting investigations, obtaining information and ordering the publication of information obtained during an investigation. United States v. Brewster, 408 U.S. 501, 512-13, 92 S.Ct. 2531, 2537-38, 33 L.Ed.2d 507 (1972); Eastland v. U. S. Servicemen's Fund, 421 U.S. 491, 504-507, 95 S.Ct. 1813, 1822-1823, 44 L.Ed.2d 324 (1975); Doe v. McMillan, 412 U.S. 306, 313, 93 S.Ct. 2018, 2025, 36 L.Ed.2d 912 (1973); Wiggins v. Stuart, 671 S.W.2d 262, 264 (Ky. 1984).
Council members are absolutely privileged for voting to order the publication of the list under McMillan because:
The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all "integral part(s) of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." [Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972).] As such, the acts were protected by the Speech or Debate clause.McMillan, 412 U.S. at 313, 93 S.Ct. at 2025 (emphasis added).
Allocating Council members' discretionary funds to pay for the publication does not cause the publication of the list to be outside the realm of a protected legislative action. Even if the allocation of the funds could be interpreted as a personal publication of the list by each Council member, its publication was required by the ordinance that the Council passed. Thus, challenging its publication is challenging the Council's law making power and goes to the heart of the speech or debate clause because the publication of the list was not incidental to what the Council was doing, but its very legislative purpose.
It is an appropriate exercise of the police power to require the publication of a list of persons who have not complied with their legal obligations under appropriate circumstances. See KRS 405.411 (granting discretion to the Cabinet for Health and Family Services' designee to compile and publish a list of persons with child support arrearages equaling or exceeding six months arrearages of no payments or who fail to appear in paternity or child support proceedings after receiving appropriate notice to comply with subpoenas or warrants); KRS 15.055 (requiring internet publication of list of delinquent child support obligors and distribution of a "most wanted" poster of missing obligors).
We now consider whether Shanklin's statements about the class of people on the list and Jackel are privileged under the speech or debate clause. We agree with Jackel that Hutchinson v. Proxmire, 443 U.S. 111, 127-133, 99 S.Ct. 2675, 2684-2687, 61 L.Ed.2d 411 (1979), and other United States Supreme Court precedents do not support the circuit court's granting of summary judgment for Shanklin's statements to the press as absolutely privileged pursuant to the speech or debate clause. Her statements were not protected because they were political in nature, rather than legislative. Accordingly, although the circuit court did not rely on the appellees' arguments that the statements were not defamatory in granting summary judgment, we now consider whether they cannot be defamatory as a matter of law.
To establish a prima facie claim for defamation, Jackel must show that Shanklin's statements contained defamatory language about him, which was published and caused injury to his reputation. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 793 (Ky. 2004). We jointly consider Shanklin's July statement regarding the class of people who would be on the future proposed list, and the September 23rd statement about the class of people who were included on the list.
In Kentucky Fried Chicken of Bowling Green, Inc. v. Sanders, 563 S.W.2d 8, 9 (Ky. 1978), the Kentucky Supreme Court determined that Colonel Sanders's statement that Kentucky Fried Chicken's gravy was "horrible," and made of "pure wallpaper paste" and added "sludge" with "no nutritional value" could not be interpreted to defame any particular Kentucky Fried Chicken restaurant. The Court explained:
To defame a class, the statement must be applicable to every member of the class, and if the words used contain no reflection upon any particular individual, no averment can make them defamatory. See Louisville Times Co. v. Emrich, 252 Ky. 210, 66 S.W.2d 73 (1933). And as the size of the class increases it becomes more and more difficult for one to show that he was the one at whom the statement was directed. See Louisville Times v. Stivers, 252 Ky. 843, 68 S.W.2d 411 (1934).Sanders, 563 S.W.2d at 9.
Shanklin's statements about the class of top property offenders cannot be defamatory as a matter of law towards Jackel, because he cannot establish that her words about the class pertained to him. As an unknown member of a future class at the time of the July statement, and as one of 263 property offenders on the released list discussed in the September 23rd statement, Jackel cannot establish that he was defamed simply by being a member of the class discussed. It is undisputed that Shanklin did not know Jackel and did not direct her statements toward him.
Accordingly we affirm the Jefferson Circuit Court's grant of summary judgment to all defendants.
ALL CONCUR. BRIEFS FOR APPELLANT: Philip C. Kimball
Louisville, Kentucky
BRIEF FOR APPELLEE: Michael J. O'Connell
Jefferson County Attorney
Louisville, Kentucky
I.G. Spencer, Jr.
William P. O'Brien
Assistant Jefferson County Attorneys
Louisville, Kentucky