RENDERED: AUGUST 21, 2020; 10:00 A.M. TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-000593-MR
MICHAEL O’CONNELL APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE OLU A. STEVENS, JUDGE ACTION NO. 18-CI-002810
CHRISTOPHER THIENEMAN APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.
CLAYTON, CHIEF JUDGE: Michael O’Connell, the Jefferson County Attorney,
brings this interlocutory appeal from a Jefferson Circuit Court order denying his
motion to dismiss the amended complaint of Christopher Thieneman. Thieneman
brought suit alleging defamation in connection with public remarks made about him by O’Connell. O’Connell contends he is entitled to sovereign, qualified
official, and qualified governmental immunity from suit.
On May 1, 2018, the Jefferson County Law Library sponsored a
celebration of Law Day with an outdoor event held at Jefferson Square Park in
downtown Louisville. The event was held between 10:00 a.m. and 2:00 p.m. and
featured a number of guest speakers using an electronic public-address system.
The event was not televised but there were a few bystanders. O’Connell spoke on
the topic of constitutional law. A truck parked nearby and visible from the park
displayed a billboard stating “Vote Out Mike O’Connell, Louisville’s Sexual
Predator Protector paid for by victims of the youth explorer program” with Chris
Thieneman’s name listed as treasurer.
In speaking about the First Amendment, O’Connell made the
following remarks about Thieneman:
He was convicted by a jury of his peers, a conviction which was upheld by the courts of this county[;] therefore he’s obviously free to speak in the manner he wants, but my office, and my prosecutors, the women in my office will not be intimidated by the speech of Mr. Thieneman. He is a sexual predator, he was convicted of trying to strangle his then-girlfriend, and the women in this community should be wary and be prepared to not come in contact with him, ever. He is a danger to this community, and to the women in this community, and each one should make sure they take every precaution they can to protect themselves from this sexual predator. There. That’s my right of free speech, and my office won’t be intimidated by this. And, between now and
-2- whenever, and as long as he wants to keep that up, I’ll call it exactly what it is, a sexual, uh excuse me, a domestic violence perpetrator, and an abuser of women, and he strangles women, and was convicted by a jury, and upheld by the appeals court. Thank you very much.
Appellant Brief at *2.
Thieneman filed a complaint against O’Connell in Jefferson Circuit
Court, stating as his causes of action defamation per se and defamation. He
subsequently filed an amended complaint to correct a typographical error.
O’Connell filed a motion to dismiss the amended complaint, arguing that he was
entitled to sovereign immunity and qualified immunity, that his speech was
protected by the First Amendment, that Thieneman failed to state a claim for
defamation as he failed to show actual malice, and that Thieneman failed to state a
claim for damages. Discovery was stayed pending the circuit court’s ruling on the
motion to dismiss. O’Connell subsequently filed a supplemental memorandum of
law concerning qualified immunity. Thieneman filed a response to the motion to
dismiss and O’Connell filed a reply. The circuit court entered an order denying the
motion to dismiss after finding the amended complaint was sufficient to state a
cause of action against O’Connell. This interlocutory appeal followed.
This interlocutory appeal is permissible because “an order denying a
substantial claim of absolute immunity is immediately appealable even in the
absence of a final judgment.” Breathitt County Bd. of Educ. v. Prater, 292 S.W.3d
-3- 883, 887 (Ky. 2009). The cloak of immunity entitles its possessor to be free “from
the burdens of defending the action, not merely just an immunity from liability.”
Rowan County v. Sloas, 201 S.W.3d 469, 474 (Ky. 2006) (citations omitted).
O’Connell argues that he is entitled to sovereign immunity because he
was sued solely in his official capacity as the Jefferson County Attorney.
Thieneman’s complaint designated the defendant as “Michael O’Connell Jefferson
County Attorney.” The complaint did not refer to O’Connell in his individual
capacity.
If strictly construed, the complaint’s designation of O’Connell solely
in his official capacity would lead to Thieneman’s claims being barred because
“[t]he absolute immunity from suit afforded to the state also extends to public
officials sued in their representative (official) capacities, when the state is the real
party against which relief in such cases is sought.” Yanero v. Davis, 65 S.W.3d
510, 518 (Ky. 2001) (citations omitted). “Official immunity can be absolute, as
when an officer or employee of the state is sued in his/her representative capacity,
in which event his/her actions are included under the umbrella of sovereign
immunity[.]” Id. at 521. Prosecutors are also afforded absolute immunity “with
respect to the initiation and pursuit of prosecutions[.]” Id. at 518 (citations
omitted); see also Jefferson County Commonwealth Attorney’s Office v. Kaplan,
65 S.W.3d 916, 920 (Ky. 2001), as modified on denial of reh’g (Feb. 21, 2002).
-4- Yet the allegations of Thieneman’s complaint are directed against
O’Connell as an individual, not against the state as the real party in interest, nor
against O’Connell in regard to his conduct of a prosecution. O’Connell
nonetheless argues that the failure of the complaint to name him in his individual
capacity is fatal to Thieneman’s case. In Edmonson County v. French, a panel of
this Court addressed a similar situation in which a slip and fall complaint against
the members of a fiscal court and judge executive failed to specify they were also
being named in their individual capacities. 394 S.W.3d 410 (Ky. App. 2013).
When the defendants invoked the doctrine of sovereign immunity, the plaintiff
urged the Court to liberally construe her complaint to encompass claims against
them in their individual capacities.
In resolving the issue, the Edmonson Court considered two different
approaches. First, it reviewed Calvert Investments, Inc. v. Louisville & Jefferson
County Metropolitan Sewer Dist., 805 S.W.2d 133 (Ky. 1991), in which the
Kentucky Supreme Court held that a claim against a state actor in his or her
individual capacity must be made with specificity:
[T]he question is whether the Complaint does in fact state a basis for personal liability and seek damages in an individual capacity. We are persuaded by the failure to specify individual capacity in the heading, the lack of specificity in the body, and the failure to seek judgment against such individuals in the concluding demand, that the Complaint fails to state a separate cause of action for personal liability against any particular individual.
-5- Edmonson, 394 S.W.3d at 415 (quoting Calvert Investments, 805 S.W.2d at 139).
The Edmonson Court also noted the unpublished case of Eblen v.
Hargis, No. 2002-CA-001478-MR, 2003 WL 21512531 (Ky. App. Jul. 3, 2003),
an opinion cited by O’Connell, in which Eblen filed suit against the property
valuation administrator (PVA) for raising the taxable value of his home. Relying
on the holding in Calvert Investments, this Court upheld the dismissal of Eblen’s
claim for failure to state a claim against a state actor in his individual capacity,
noting that the complaint only contained allegations that Hargis acted improperly
in his employment as PVA. Edmonson, 394 S.W.3d at 414-15.
Second, Edmonson considered McCollum v. Garrett, 880 S.W.2d 530
(Ky. 1994), in which the Supreme Court adopted a broader approach. In
McCollum, the plaintiff alleged malicious prosecution against a county attorney but
did not expressly state whether the claim was against him in his individual or
official capacity. Id. at 532. The opinion analyzed the issue as follows:
In our view, this issue should be resolved by a commonsense reading of the complaint and application of the Rules of Civil Procedure. While disclosure of McCollum’s official position in the caption and in paragraph 2 creates a measure of uncertainty, the complaint otherwise states a straightforward claim against McCollum based upon his individual actions. Nowhere is there any allegation that Henderson County or its fiscal court is liable for damages. The relevant allegations of misconduct are directed at McCollum and
-6- Cottingham. CR[1] 8.06 requires that “All pleadings shall be so construed as to do substantial justice.” This rule, sometimes called a “liberal construction” rule, requires that a pleading be judged according to its substance rather than its label or form. To construe this pleading as a claim against the defendants in their official capacity would result in the claim being barred. To construe it as an individual capacity claim permits the litigation to proceed toward the merits, a goal we have expressly embraced in other contexts. Ready v. Jamison, Ky., 705 S.W.2d 479 (1986), Crossley v. Anheuser-Busch, Inc., Ky., 747 S.W.2d 600 (1988).
Id. at 533 (footnote omitted).
In deciding whether to adopt the Calvert or the McCollum approach,
the Edmonson Court noted that the plaintiff, who was injured when she slipped and
fell on some ice outside the courthouse, specifically alleged in her complaint that
the fiscal court was responsible for maintaining and keeping safe the premises of
the courthouse, a public building, and that the defendants failed to keep the
premises in a reasonably safe condition. The plaintiff “did not single out any
particular member of the fiscal court or the judge executive regarding that person’s
action or lack of action, as was the case in McCollum. And she certainly alleged
that the county and the fiscal court were liable.” Edmonson, 394 S.W.3d at 416.
The Court consequently rejected the “liberal construction” rule of McCollum and
construed the complaint strictly according to Calvert. Id.
1 Kentucky Rules of Civil Procedure.
-7- By contrast, as we have noted, the allegations of misconduct in
Thieneman’s complaint state a straightforward claim against O’Connell based
upon his individual actions and do not allege that the County Attorney’s Office is
in any way liable for damages. This situation bears greater similarity to McCollum
and accordingly Thieneman’s complaint shall be construed as being brought
against O’Connell in an individual, as well as a representative, capacity.
“[W]hen sued in their individual capacities, public officers and
employees enjoy only qualified official immunity, which affords protection from
damages liability for good faith judgment calls made in a legally uncertain
environment.” Yanero, 65 S.W.3d at 522 (citation omitted). “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.” Id. (citations
omitted). Conversely, “[a] government official is not afforded immunity from tort
liability for the negligent performance of a ministerial act.” Patton v. Bickford,
529 S.W.3d 717, 724 (Ky. 2016), as modified on denial of reh’g (Aug. 24, 2017).
Discretionary acts are “those involving the exercise of discretion and
judgment, or personal deliberation, decision, and judgment.” Id. (citation omitted).
“Discretion in the manner of the performance of an act arises when the act may be
-8- performed in one or two or more ways, either of which would be lawful, and where
it is left to the will or judgment of the performer to determine in which way it shall
be performed.” Haney v. Monsky, 311 S.W.3d 235, 240 (Ky. 2010), as
corrected (May 7, 2010) (citing Upchurch v. Clinton County, 330 S.W.2d 428, 430
(Ky. 1959)). “On the other hand, ministerial acts or functions—for which there are
no immunity—are those that require ‘only obedience to the orders of others, or
when the officer’s duty is absolute, certain, and imperative, involving merely
execution of a specific act arising from fixed and designated facts.’” Id. (quoting
Yanero, 65 S.W.3d at 522).
Thieneman does not dispute that O’Connell’s comments at the Law
Day event were made within his discretionary, rather than ministerial, capacity, as
his decision to speak and the content of his remarks were determined by his own
will and judgment. Under these circumstances, “[o]nce the officer or employee
has shown prima facie that the act was performed within the scope of his/her
discretionary authority, the burden shifts to the plaintiff to establish by direct or
circumstantial evidence that the discretionary act was not performed in good faith.”
Yanero, 65 S.W.3d at 523 (citation omitted). “[Q]ualified official immunity yields
to proof that a defendant’s actions were malicious.” Martin v. O’Daniel, 507
S.W.3d 1, 6 (Ky. 2016), as corrected (Sept. 22, 2016) (emphasis original).
-9- The elements of a defamation claim are as follows: “(a) a false and
defamatory statement concerning another; (b) an unprivileged publication to a third
party; (c) fault amounting at least to negligence on the part of the publisher; and (d)
either actionability of the statement irrespective of special harm or the existence of
special harm caused by the publication.” Toler v. Süd-Chemie, Inc., 458 S.W.3d
276, 282 (Ky. 2014), as corrected (Apr. 7, 2015) (citation and footnote omitted).
Thus, in addition to proving each of these elements, O’Connell’s qualified official
immunity imposes upon Thieneman the additional burden of showing that the Law
Day remarks were made, not negligently, but maliciously, i.e., in bad faith.
“[I]n the context of qualified official immunity, ‘bad faith’ can be
predicated on a violation of a constitutional, statutory, or other clearly established
right which a person in the public employee’s position presumptively would have
known was afforded to a person in the plaintiff’s position, i.e., objective
unreasonableness; or if the officer or employee willfully or maliciously intended to
harm the plaintiff or acted with a corrupt motive.” Yanero, 65 S.W.3d at 523
(citation omitted).
Thieneman argues that a claim for defamation per se creates a
conclusive presumption of both malice and damages, in reliance on Stringer v.
Wal-Mart Stores, Inc., 151 S.W.3d 781, 794-95 (Ky. 2004), overruled by Toler,
458 S.W.3d 276. But “[t]o the extent that Stringer stands for a perpetuation of
-10- allowing the mere allegation of falsity to permit an inference of malice, it is
overruled. . . . [A]ny statement in Stringer to the contrary notwithstanding, both
malice and falsity must be shown for a plaintiff to overcome the qualified
privilege.” Toler, 458 S.W.3d at 287 (emphasis original).
Thieneman argues that malicious prosecution does not sound in
negligence and consequently the qualified official privilege is unavailable to
O’Connell. But Thieneman’s complaint does not allege malicious prosecution,
which is a significantly different claim from defamation. Malice is one of the
elements that must be proven as part of a malicious prosecution claim and
therefore in that context the “defense of qualified official immunity has little
meaning and no effect.” Martin, 507 S.W.3d at 6. By contrast, O’Connell is
protected by qualified official immunity if his remarks, if defamatory, were made
without malice and in good faith.
Thieneman also alleges that O’Connell has improperly prevented
discovery by filing this interlocutory appeal. The record shows that Thieneman
served discovery requests on O’Connell, who filed a motion to stay discovery
pending the circuit court’s ruling on the motion to dismiss. Thieneman did not
respond to the motion to stay discovery and did not appear at the motion hour on
October 8, 2018. At that motion hour, the circuit court ruled it would hold the case
in abeyance for a week to allow Thieneman to respond. At the following motion
-11- hour, on October 15, 2018, Thieneman still had not responded or appeared. The
circuit court accordingly granted the motion to stay discovery. Thieneman was
provided with ample opportunity to raise his argument regarding discovery and it
will not be addressed here for the first time on appeal.
The concurring opinion makes a public policy argument for extending
absolute prosecutorial immunity to O’Connell for his remarks, while
acknowledging that this defense was not invoked by O’Connell and is not
supported by our case law. In McCollum, the Kentucky Supreme Court discussed
the scope of prosecutorial immunity in the context of Buckley v. Fitzsimmons, 509
U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993), observing that Buckley “is
clear that absolute immunity does not follow a prosecutor in all of his actions.”
McCollum, 880 S.W.2d at 534.
In Buckley, the appellant, a criminal defendant, claimed that
defamatory remarks made about him at a press conference by the prosecutor,
Fitzsimmons, deprived him of the right to a fair trial by inflaming the public
against him and causing the jury to deadlock rather than acquit him. As the
concurrence has rightly noted, the claims in Buckley were made pursuant to 42
U.S.C.2 §1983 and, consequently, in order to claim prosecutorial immunity,
Fitzsimmons would have had to show it was well-established prior to the
2 United States Code.
-12- enactment of §1983 in 1871. The concurring opinion also notes that whereas the
United States Supreme Court may not establish immunities from §1983 actions on
the basis of public policy, state courts are not subject to the same constraints in
addressing state law claims.
Presumably, the McCollum Court was fully aware of this distinction
yet nonetheless declined to extend prosecutorial immunity on public policy
grounds. Instead, the McCollum Court approved the functional approach of
Buckley in assessing the availability of prosecutorial immunity as entirely
congruent with Dugger v. Off 2nd, Inc., 612 S.W.2d 756 (Ky. App. 1980), which
held “that so long as a prosecutor acts within the scope of the duties imposed by
law, quasi-judicial immunity is available, but otherwise it is not.” McCollum, 880
S.W.2d at 534 (footnote omitted). In assessing the availability of immunity to
Fitzsimmons, the Buckley Court stated:
Fitzsimmons does not suggest that in 1871 there existed a common-law immunity for a prosecutor’s, or attorney’s, out-of-court statement to the press. . . . Indeed, while prosecutors, like all attorneys, were entitled to absolute immunity from defamation liability for statements made during the course of judicial proceedings and relevant to them, . . . most statements made out of court received only good-faith immunity. The common-law rule was that [t]he speech of a counsel is privileged by the occasion on which it is spoken . . . .
Comments to the media have no functional tie to the judicial process just because they are made by a prosecutor. At the press conference, Fitzsimmons did not
-13- act in his role as advocate for the State[.] The conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state’s case in court, or actions preparatory for these functions. Statements to the press may be an integral part of a prosecutor’s job, . . . and they may serve a vital public function. But in these respects a prosecutor is in no different position than other executive officials who deal with the press, and, . . . qualified immunity is the norm for them.
Buckley, 509 U.S. at 277-78, 113 S. Ct. at 2617-18 (citations and internal quotation
marks omitted).
The Buckley Court reiterated that “ʻ[t]he presumption is that qualified
rather than absolute immunity is sufficient to protect government officials in the
exercise of their duties. . . .’ Even if policy considerations allowed us to carve out
new absolute immunities to liability for constitutional wrongs under § 1983, we see
little reason to suppose that qualified immunity . . . would fail to provide sufficient
protection in the present context.” Id., 509 U.S. at 278, 113 S. Ct. at 2618
(citations and footnote omitted).
O’Connell, like other officials, is entitled only to the protections of
qualified official immunity for his public statements which, arguably, are even less
related to his function as County Attorney than the comments made by
Fitzsimmons.
Because O’Connell is not entitled to absolute immunity from suit, the
Jefferson Circuit Court’s order denying the motion to dismiss is affirmed. The
-14- case is remanded for further proceedings to determine whether O’Connell is
entitled to qualified official immunity, which requires a finding, established by
direct or circumstantial evidence, Yanero, 65 S.W.3d at 523, that he acted without
malice in making the allegedly defamatory statements about Thieneman.
The Jefferson Circuit Court’s order denying the motion to dismiss is
affirmed and the case is remanded for further proceedings in accordance with this
opinion.
DIXON, JUDGE, CONCURS IN RESULT ONLY.
MAZE, JUDGE, CONCURS AND FILES SEPARATE OPINION.
MAZE, JUDGE, CONCURRING: I agree with the reasoning and result of the
majority opinion. However, I write separately to express my opinion that
Kentucky should extend absolute prosecutorial immunity to the claims at issue in
this case. Extending such immunity would allow prosecutors to keep the public
informed about pending and completed prosecutions without fear of defending
actions for defamation.
As an initial matter, I reluctantly agree with the majority that
Thieneman’s complaint properly states a claim against O’Connell in both his
individual and his official capacities. When sued in his representative capacity,
O’Connell is entitled to the same immunity as the Office of the County Attorney
itself would be. Yanero, 65 S.W.3d at 521. The County Attorney, as an agency of
-15- a political subdivision of the state, is entitled to governmental immunity from tort
liability when performing governmental functions. Id. at 519. But when sued in
his individual capacity, O’Connell’s immunity is only qualified. Id. at 522.
The first question in this case, as addressed by the majority opinion, is
whether Thieneman’s complaint states a claim against O’Connell in his official or
in his individual capacity. Based on the analysis in McCollum, supra, and
Edmonson, supra, I agree that the complaint states a basis for personal liability and
seeks damages in an individual capacity. Thieneman’s complaint is very
ambiguous concerning the claims asserted against O’Connell individually. The
complaint only names O’Connell in his capacity as Jefferson County Attorney
regarding actions taken performing the duties connected with that office.
Thieneman also had the opportunity to amend his complaint to state a claim against
O’Connell specifically in his individual capacity. Thieneman failed to do so.
Nevertheless, the complaint is substantively indistinguishable from
the claims brought against the County Attorney in McCollum. As in that case,
Thieneman’s complaint only references O’Connell and seeks damages only against
him. CR 8.06 requires this Court to construe the complaint liberally according to
its substance rather than its label or form. To construe this pleading as a claim
against O’Connell solely in his official capacity would result in the claim being
barred. While the rule does not require us to re-write the pleading, based on
-16- McCollum I must agree that the complaint sufficiently states claims against
O’Connell in his individual capacity.
Since this is an interlocutory appeal, the only questions properly
presented involve the denial of a claim of absolute immunity. Prater, 292 S.W.3d
at 886. At this juncture, Thieneman’s allegations of malice are sufficient to
preclude a finding that O’Connell is entitled to qualified immunity in his individual
capacity. Martin, 507 S.W.3d at 5. Likewise, any arguments concerning privilege
or whether his statements are defamatory are beyond the scope of this interlocutory
appeal. This is a battle which will have to be fought at a later time.
However, this is not the end of our inquiry. Although O’Connell’s
official immunity is only qualified, absolute immunity is also afforded to certain
governmental actors. Yanero, 65 S.W.3d at 518. The immunity does not depend
upon whether the official is sued in his or her representative or individual capacity,
but upon the nature of the duties performed. Among other duties, the County
Attorney is responsible for the prosecution of all offenses subject to the jurisdiction
of the District Court. Kentucky Revised Statutes (KRS) 15.725(2). When acting
in this role, the County Attorney is entitled to absolute prosecutorial immunity.
Imbler v. Pachtman, 424 U.S. 409, 422-23, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128
(1976).
-17- On the other hand, absolute immunity does not apply when the
County Attorney is functioning as an administrator or an investigator. McCollum,
880 S.W.2d at 534 (citing Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606,
125 L. Ed. 2d 209 (1993)). Likewise, the County Attorney is not entitled to
absolute immunity when he provides legal advice to or represents the interests of a
consolidated local government. KRS 69.210. In those circumstances, the
prosecutor’s immunity is limited to qualified immunity.
In Buckley v. Fitzsimmons, the United States Supreme Court held that
a prosecutor’s comments to the media have no functional tie to the judicial process.
509 U.S. at 277, 113 S. Ct. at 2618. While statements to the press may be an
integral part of a prosecutor’s job, such functions are no different than other
administrative functions performed by other executive officials. Consequently, the
prosecutor is limited to qualified immunity for such statements. Id., 509 U.S. at
278, 113 S. Ct. at 2618.
However, the claims in Buckley were brought under 42 U.S.C. §1983.
Consequently, any immunities were limited to those in existence in 1871, when the
Civil Rights Act was enacted. At common law, there was no recognized immunity
for a prosecutor’s or an attorney’s out-of-court statements to the press. Id., 509
U.S. at 277, 113 S. Ct. at 2617. The Supreme Court determined that it did not
“have a license to establish immunities from § 1983 actions in the interests of what
-18- we judge to be sound public policy.” Id., 509 U.S. at 278, 113 S. Ct. at 2618
(citation omitted). On the other hand, state courts, ruling on state-law claims such
as defamation, are not subject to this limitation.
Most notably, Indiana has adopted a rule providing that a prosecutor’s
statements to the press regarding a pending case, if made within the scope of his
authority, are absolutely immune. Foster v. Pearcy, 270 Ind. 533, 538, 387 N.E.2d
446, 449 (1979). See also Sims v. Barnes, 689 N.E.2d 734, 737 (Ind. Ct. App.
1997). A district of the Illinois Appellate Court adopted this rule in Bianchi v.
McQueen, 58 N.E.3d 680, 701-02 (Ill. App. Ct. 2016). Connecticut has applied
this rule to public statements made by the state Attorney General. Hultman v.
Blumenthal, 67 Conn. App. 613, 623, 787 A.2d 666, 674 (2002). Similarly,
Vermont, Pennsylvania, and Michigan extend their statutory absolute immunity to
district attorneys’ public statements about a prosecution. See O’Connor v.
Donovan, 191 Vt. 412, 424, 48 A.3d 584, 592 (2012), Pickering v. Sacavage, 164
Pa. Cmwlth. 117, 126, 642 A.2d 555, 559 (1994), and Bischoff v. Calhoun Cty.
Prosecutor, 173 Mich. App. 802, 806, 434 N.W.2d 249, 251 (1988).
“The rationale for absolute immunity for the performance of
legislative, judicial and prosecutorial functions is not to protect those individuals
from liability for their own unjustifiable conduct, but to protect their offices against
the deterrent effect of a threat of suit alleging improper motives where there has
-19- been no more than a mistake or a disagreement on the part of the complaining
party with the decision made.” Yanero, 65 S.W.3d at 518 (citation omitted). I
believe that this reasoning is equally applicable to the case at hand. Prosecutors
have a duty to inform the public as to their investigative, administrative, and
prosecutorial activities. Foster, 387 N.E.2d at 449. Statements to the media and to
the public at large further this significant role.
To be clear, I do not believe that every public statement by a
prosecutor is subject to absolute immunity. However, prosecutors are frequently
called upon to speak on matters relating to pending or completed prosecutions.
During the pendency of a prosecution or trial, a court may reasonably restrict the
parties from making public statements which may prejudice the outcome. But in
the absence of such a restriction or once the prosecution is completed, a prosecutor
should be entitled to make public statements concerning the facts of the
prosecution and conviction. Such statements are reasonably attendant to the
prosecutorial function. To hold otherwise, in my opinion, would have a
devastating and chilling effect on public officials.
In this case, Thieneman’s complaint alleges that O’Connell defamed
him by referencing his prior prosecution and conviction for second-degree wanton
endangerment and by stating that he was a danger to the community as a result.
O’Connell spoke about his office’s prior prosecution of Thieneman for assault and
-20- conviction for second-degree wanton endangerment. When speaking about this
prosecution, O’Connell referred to the actions and position of the County
Attorney’s Office. He specifically referred to “my office, and my prosecutors,
[and] the women in my office . . . .”
I concede that O’Connell conflated the nature of Thieneman’s
offenses with the allegations posted on the billboard – he twice referred to
Thieneman as a “sexual predator.” This was clearly an inaccurate statement of the
facts surrounding the conviction. But O’Connell specifically noted the facts
supporting the conviction and he corrected his prior mischaracterization of
Thieneman’s actions near the close of his remarks. Although I believe that
O’Connell’s remarks were ill-considered, I would nonetheless hold that they were
subject to absolute prosecutorial immunity.
In context, I would find that O’Connell was addressing the official
position of his office regarding a completed prosecution. While that prosecution
was completed, the County Attorney is entitled to publicly address the fact of a
conviction. His office prosecuted Thieneman for attempting to choke his then-
girlfriend. That prosecution resulted in a conviction which was upheld on appeal.
Making public statements about the result of the County Attorney’s
prosecution of particular individuals is reasonably within the scope of O’Connell’s
prosecutorial role. It also furthers the purpose of affording immunity to such
-21- actions – protecting a prosecutor from liability for engaging in the necessary
functions of the prosecutorial role. Furthermore, O’Connell was entitled to express
his opinion about Thieneman to the extent that it was based on the disclosed and
accurate facts surrounding the prosecution and conviction. Yancey v. Hamilton,
786 S.W.2d 854, 857 (Ky. 1989).
Nevertheless, I must recognize that Kentucky has not adopted
absolute immunity for prosecutors to this degree. While I believe that there are
compelling public policy reasons to do so, it is not the role of this Court to adopt
such a rule for the first time. I must also recognize that O’Connell has not asked
this Court to do so. Thus, while I believe that the claims against O’Connell should
be barred by absolute immunity, I must agree with the majority that O’Connell
only has qualified immunity from defamation claims brought against him in his
individual capacity. Therefore, I concur in the majority’s decision to affirm the
denial of his motion to dismiss.
-22- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Michael J. O’Connell Thomas A. McAdam, III Kristie B. Walker Louisville, Kentucky Louisville, Kentucky ORAL ARGUMENT FOR ORAL ARGUMENT FOR APPELLEE: APPELLANT: Mary E. Eade Kristie B. Walker Louisville, Kentucky Louisville, Kentucky
-23-