Reputation Claim Against Kane to Proceed
by Lizzy McLellan, from The Legal Inlelligencer
August 20,2015 – While a Philadelphia judge has dismissed six counts of a defamation complaint against state Attorney General Kathleen Kane, one count, relating to the state constitutional right to reputation, has been allowed to proceed.
Philadelphia Court of Common Pleas Judge Denis P. Cohen issued an opinion and order Monday in Thomas v. Kane, sustaining objections from both the defendants and the plaintiff. Cohen dismissed six counts of Claude Thomas’ complaint, following Kane and co-defendant Kevin Wevodau’s objection based on the doctrine of absolute immunity, including the two counts against Wevodau, who was a special agent for the OAG.
But Cohen also sustained Thomas’ objection to Kane’s preliminary objection to one count alleging violation of Thomas’ right under the Pennsylvania Constitution to protect his reputation. Cohen said Kane is entitled to absolute immunity and may not be held liable for damages arising from allegedly false defamatory statements. But the reputation count cannot be dismissed under the same theory, he said, because it was not a claim for damages and does not require the attorney general to defend her actions before a jury.
That count demands equitable relief in the form of a “‘name-clearing hearing,'” Cohen’s opinion said, which Thomas asked be paid for by Kane.
“Outside of costs by Attorney General Kane, however, sovereign immunity does not bar the remainder of Count V because it does not seek to ‘compel’ any other affirmative action from the commonwealth or the attorney general,” Cohen wrote.
In the order Monday, Cohen also required Kane answer Thomas’ amended complaint within 20 days of the order.
In his first amended complaint, Thomas alleged Kane defamed him and invaded his privacy by making public statements that a corruption investigation he led, supervised by former Attorney General Tom Corbett and former chief deputy attorney general Frank Fina, targeted only African-American legislators and ignored activities of white legislators. The complaint noted Thomas is African-American.
“At no time did Thomas ever use race as a deciding factor in regard to this public corruption sting operation or any other investigation,” the amended complaint said. The complaint also alleges “Kane secretly killed this public corruption sting operation-apparently to serve her own legally-twisted personal interests in protecting her own political allies.”
Thomas’ amended complaint included a portion of the findings of a Philadelphia investigating grand jury, which said the allegations of racism and entrapment in the corruption investigation were “empty.”
The complaint alleged Kane carried out a “scheme” to protect herself and intimidate and discredit Thomas by way of a written statement to the media March 14, 2013, and verbal statements to the media March 17 and April 10, 2014. The amended complaint alleged one count of defamation, three counts of invasion of privacy and one count of violation of Article I, Section 1 of the Pennsylvania Constitution against Kane. It also alleged one count of concerted tortious conduct and one count of civil conspiracy against both Kane and Wevodau.
According to Cohen’s opinion, the defendants filed preliminary objections to all counts, asserting they were both entitled to absolute privilege and sovereign immunity. They also filed an objection to the constitutional violation count in particular, the opinion said, “because there is no right in Pennsylvania to a ‘name-clearing hearing.'”
Thomas filed a preliminary objection that said absolute immunity and statutory immunity were premature bases for objections at the preliminary stage. He also contended that he was suing both defendants in their individual capacities only, so immunity would not be applicable.
Cohen referred to decisions in Jaffurs v. O’Neill and Montgomery v. Philadelphia to determine whether Kane was working in her official capacity.
“Based on these cases, it is beyond cavil that the attorney general was acting within the scope of her duties by ‘calling the [public’s] attention’ that the sting operation at issue was ended by Attorney General Kane because Attorney General Kane had suspicions that the investigations were the result of criminal racial targeting by the plaintiff and former chief deputy attorney general Fina,” Cohen said.
But absolute immunity only exempts public officials from civil suits for damages arising out of false defamatory statements, the opinion said, quoting from Lindner v. Mollan. So the constitutional violation count can continue.
That count of the complaint did not ask for monetary damages, but for a name-clearing hearing where Thomas and Kane could both be heard in a forum open to the public.
Mark A. Sereni of DiOrio & Sereni, an attorney for Thomas, called the decision allowing the name-clearing hearing a “victory” in a statement Tuesday. Sereni said he contacted Kane in writing before filing the suit to request such a hearing for Thomas.
“Ms. Kane completely ignored, and continues to completely ignore, my written request,” Sereni said. “Candidly, I find it painfully ironic that when Ms. Kane now sees herself publicly accused of wrongdoing, she uses her immense power as state attorney general to promptly call a statewide press conference in an effort to defend herself, but when she publicly accuses a former undercover agent of wrongdoing who needs and deserves the same kind of public forum to clear his name, she decides not to lift a finger for him and instead Virtually thumbs her nose at him.”
Alton G. Grube of the GAG, attorney for the defendants, declined to comment on the case.
Lizzy McLellan can be contacted at 215-557-2493 or [email protected]. Follow her on Twitter @LMCLELLAN. Copyright 2015. ALM Media Properties, LLC. All rights reserved. http://www.thelegalintelligencer.com/
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