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Criminal defamation-related suit dismissed

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NEWS MEDIA UPDATE   ·   KANSAS   ·   Libel   ·   Dec. 22, 2005

Criminal defamation-related suit dismissed

  • Two city officials who pursued criminal libel charges against two men who complained about one of the officials in the local newspaper were not acting under their authority as city representatives and therefore did not act improperly, a federal judge ruled Dec. 15.

Dec. 22, 2005  ·   Two men who faced criminal libel charges cannot sue the city attorney and city clerk who filed the charges because they did not present enough evidence to support their case, a federal judge in Kansas City, Kan., ruled Dec. 15.

The ruling came in a case involving two men, Charles How and Ronald Thomas, who alleged Baxter Springs, Kan., City Clerk Donna Wixon and City Attorney Richard Myers violated their First Amendment rights by abusing their governmental power to pursue criminal complaints against them for attacking Wixon in letters, columns and ads in the Baxter Springs News.

U.S. District Judge John W. Lungstrum dismissed the case, ruling that the plaintiffs — How and Thomas — had not presented enough evidence to prove a genuine issue of material fact about whether the charges against them several years ago were improper.

“This case really has a strong First Amendment significance,” said attorney Sam Colville, who represents How. The defendants attempted to punish “pure political speech and I have no reason to believe the ruling would be different if my client was a recognized journalist,” he said.

How wrote numerous letters to the editor which criticized Wixon, including a complaint about her dress at the county fair which said she “had on a pair of the skimpiest little ol’ shorts you ever seen. Went almost up to it’s waterline [sic] you would have thought Halloween had arrived early,” according to Lungstrum’s decision.

How also paid for a March 2003 political advertisement in which he called Wixon the “hateful” city clerk.

Thomas wrote many columns for the Baxter Springs News which criticized Wixon for her “demoralization” of her staff. On March 11, 2003, he additionally criticized her inability to keep an accurate ward voting map and to fulfill open records requests, among other complaints.

According to the facts provided in the decision — which are greatly disputed by the plaintiffs — on the evening of the March 11, Wixon, the city clerk, approached Myers, the city attorney, about filing criminal defamation charges against How and Thomas. The complaint was filed on March 13 and on April 18 the first court hearing in the municipal court covering Baxter City was held. Myers then excused himself from the case, citing a conflict of interest, and said he would find a special prosecutor to refile the charges.

On June 3, the court dismissed the charges because Myers had yet to find a prosecutor. However, the Joplin Globe accurately reported that Myers said he found a special prosecutor and would refile the charges. In fact, Myers later admitted that his statement was false as he never found a prosecutor. The charges were never refiled once the two-year statute of limitations expired.

“The court recognized [Myers lied],” Colville said. “But the lie was anything but hollow because it kept the threat of the charges being brought around hanging over their heads for another two years — tempering his exercise of free speech.”

The judge found that even though Myers and Wixon were city officials, they did not act within the scope of their positions to bring the charges. The court found “Wixon pursued the entirety of her actions in filing the criminal complaints in her private capacity, outside the scope of her position as City Clerk.”

“Because she acted in her private capacity, the plaintiffs cannot establish that she acted ‘under the color of law’ for the City,” Lungstrum wrote.

In addition, the court found that there was no conspiracy between Myers and Wixon to punish the plaintiffs for their articles in the newspaper. Since the court found no evidence of a conspiracy and no evidence Wixon acted in her public capacity, it found there was not enough evidence to support the plaintiffs’ claims and granted summary judgment to the defendants.

Colville is considering filing an appeal.

(How v. City of Baxter Springs; Media Counsel: Sam Colville, Holman Hansen & Colville, Overland Park, Kan.; Thomas v. Baxter Springs; Media Counsel: William J. Skepnek, Skepnek Law Firm, Lawrence, Kan.)CM

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