Wednesday, October 20, 2021

Public Defender Defamation Suit Remanded

A public defender who had sued the ACLU for an allegedly defamatory blog post is a public figure under the New York Times v. Sullivan standard, according to a recent opinion of the Georgia Supreme Court

The proper provision of constitutionally required legal representation for indigent criminal defendants in Glynn County’s misdemeanor cases is a matter in which the public has an independent interest.

The blog post suggested that the public defender accepted outside fee payments.

under the requirement set forth in New York Times, the ACLU’s blog post statements “relat[ed] to [Zeh’s] official conduct,” 376 U.S. at 279, because the statements claimed that Zeh, as Glynn County’s public defender for defendants charged with misdemeanor crimes, ignored and extorted his indigent clients. The ACLU’s post accused Zeh of being a “crooked public defender,” ignoring his clients, requiring an indigent defendant to pay for representation, “perpetuating Glynn County’s wealth-based incarceration system,” and “failing to provide legal assistance to his clients who cannot afford a private attorney.” Moreover, the post highlighted the federal class action lawsuit against Zeh, the County, and other County government officials, which alleged that Zeh, in his public position, not only unlawfully charged Cox and Hamilton a fee for his public defense services but also and more broadly “enforced a policy of delaying representation to misdemeanor arrestees” and “ha[d] a policy of not visiting public defense clients in
the detention center, representing clients at their bail setting proceeding, or requesting a preliminary hearing or bail modification hearings on their behalf.”

With malice towards none

In this case, Zeh contends that the defamation case pleadings and affidavits, viewed in his favor, prove that the ACLU published the blog post statements with reckless disregard for their accuracy. He argues first that the author and editors of the post should not have relied on Cox’s and Hamilton’s claims against Zeh in the federal case filings because Cox’s allegations were not trustworthy. In addition, Zeh argues that the ACLU should have further investigated the allegations by reviewing the Glynn County court records relating to Cox’s 2015 case and contacting Zeh before publishing the blog post. Neither argument is persuasive.

...the defamation case pleadings and affidavits show that at the time the ACLU published the blog post, it knew information that supported Cox’s allegations, but did not know information indicating that the allegations were false. Significantly, Cox’s claims about Zeh did not come out of the blue. Rather, his allegations on behalf of the proposed plaintiff classes were generally consistent with the other class representatives’ allegations in the original federal complaint about Zeh and his practice of ignoring indigent defendants – allegations that Zeh hardly mentioned in his defamation complaint or in his briefing here. Notably, when the blog post was published, Zeh had not yet filed in the federal case his response to the proposed amended complaint denying Cox’s and Hamilton’s allegations or presented any evidence indicating that their claims were inaccurate.

Duty to investigate

Here, the existing record shows that the ACLU’s statements in the blog post were not fabricated, imagined, or based wholly on an unverified source like an anonymous telephone call. Instead, the statements relied on pleadings and sworn declarations filed publicly in a federal court case, which were not inconsonant with information that the ACLU Foundation lawyers had previously gathered and alleged regarding Zeh and serious problems in the Glynn County misdemeanor public defense system. And as discussed above, at the time the ACLU published the blog post, it had no obvious reason to doubt Cox’s and Hamilton’s allegations. The ACLU may have acted imprudently, but the defamation case pleadings and affidavits do not establish by clear and convincing evidence that the ACLU’s failure to review the State and Superior Court records for Cox’s 2015 shoplifting case or to contact Zeh about the allegations evinced a deliberate intent to avoid discovering the truth.

The anti-SLAPP motion should have been granted

the trial court erred in denying the ACLU’s anti-SLAPP motion to strike Zeh’s lawsuit; and the Court of Appeals erred in affirming that ruling.

A remand on discovery issues

the record as it now stands indicates that when the ACLU published the disputed blog post statements, it did not possess a high degree of subjective awareness that Cox’s and
Hamilton’s allegations were probably false, but discovery on this issue could conceivably uncover admissions by the post’s author and editors or other evidence from Cox and Hamilton showing that the ACLU actually knew or entertained serious doubts about the accuracy of the statements. If Zeh obtained and presented such additional evidence, he potentially could defeat the ACLU’s antiSLAPP motion to strike

...we remand the case to that court with direction to remand the case to the trial court to rule on Zeh’s discovery motions and then proceed in a manner consistent with this opinion.

The Brunswick News reported that he is no longer the public defender and is the subject of criminal charges.(Mike Frisch)

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