March 22, 2018

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts
Zervos v Trump, NYS Supreme Court, Index No. 150522/17

Judge Jennifer G. Schecter, citing Clinton v Jones, 520 US 681 [Clinton], held that a sitting president is not immune from being sued in state courts for unofficial acts* and denied President Donald J. Trump's [Defendant] motion to dismiss Summer Zervos' [Plaintiff] petition.

Plaintiff had alleged that in 2007 Defendant had subjected her to unwelcome "sexually inappropriate misconduct" and then defamed her after she had "publicly described her interactions with [Defendant] in detail, including his unwanted sexual misconduct" at a press conference on October 16, 2016.

Plaintiff alleged later that same day, Defendant responded in a statement that was widely reported and appeared on his campaign website that "[t]o be clear, I never met [Plaintiff] at a hotel or greeted her inappropriately a decade ago. That is not who I am as a person and it is not how I've conducted my life." Subsequently Defendant stated Plaintiff's "allegations are 100% false". . They are made up, they never happened ..." at campaign rallies.

A false statement tending "to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation" and in this action Plaintiff alleged that the public statements made by the Defendant that Plaintiff's "allegations are 100% false ... They are made up, they never happened" constitute defamation.

The court explained that "No one is above the law" and as the Supreme Court held in Clinton, "the President of the United States has no immunity and is 'subject to the laws' for purely private acts." Any such immunity was grounded "the nature of the function performed, not the identity of the actor who performed it."

Then-President William Jefferson Clinton was required to defend himself against a civil-rights action that included a state-law defamation claim in federal court and the Supreme Court rejected Clinton's argument that "interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions" and the rule is no different with respect to commencing litigation related to a  President's unofficial conduct in a state court.

The court noted that in Davis v Blenheim, 24 NY3d 262 , the New York State Court of Appeals determined that a defamation action could be maintained against a defendant who called individuals claiming to have been victims of sexual abuse liars and stated that he believed that they were motivated by money to go public. The Court concluded that the statements were susceptible to a defamatory connotation because they communicated that defendant had information unknown to others that justified his statements that the individuals were neither credible nor victims of abuse.

Judge  Schecter opined that "Defendant -- the only person other than plaintiff who knows what happened between the two of them -- repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told 'phony stories' and issued statements that were 'totally false' and 'fiction,' he insisted that the events 'never happened' and that the allegations were '100% false [and] made Up.'" The court said that "[a]  reader or listener, cognizant that Defendant knows exactly what transpired, could reasonably believe what Defendant's statements convey: that Plaintiff is contemptible because she 'fabricated' events for personal gain."

Referring to the means of communication used by Defendant, the court said the "[m]ost importantly, in their context, Defendant's repeated statements -- which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by Defendant -- cannot be characterized simply as opinion, heated rhetoric or hyperbole." Further, the fact that Defendant's statements about Plaintiff's veracity were made while he was campaigning to become President of the United States, "does not make them any less actionable."

Accordingly, Judge Schecter ruled that the Plaintiff's complaint sufficiently stated a cause of action.

* The distinction made between "official actions" and "personal activities" is reflected in §17 [Defense and indemnification of state officers and employees in civil actions]; §18 [Defense and indemnification of officers and employees of public entities in civil actions]; and §19 [Reimbursement of defense costs incurred by or on behalf of state employees in criminal action] of the Public Officer Law. Essentially these sections provide that the employer shall provide for the defense and indemnification of the officer or employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or employee was acting within the scope of his or her public employment or duties.

The decision is posted on the Internet at: