Last week, everyone in Washington, D.C. was talking about the invocation of “executive privilege,” the ability of a President to withhold information from, for example, an investigation into Russian influence on the U.S. election. Meanwhile, the Massachusetts Supreme Judicial Court (“SJC”) considered, and then punted on, a different kind of executive privilege: the absolute privilege of an executive to defame others without liability.
The “Sigh-Paglia Matter”
The case, Edwards v. Commonwealth, concerned former Massachusetts Governor Deval Patrick and his brother-in-law, Bernard Sigh. In 1993, Sigh pled guilty to spousal rape in California. He later moved to Massachusetts, but did not register as a sex offender. In 2006, the Massachusetts Sex Offender Registry Board (“SORB”) determined that Sigh should register. Sigh challenged the determination, arguing that the crime of which he was convicted in California was not a “like offense” to rape under Massachusetts law, and therefore it did not require registration.
Sigh’s case was assigned to hearing officer Attillio Paglia. Paglia was instructed by SORB not to conduct the hearing until after a legal review by the Attorney General of whether California spousal rape was a “like offense” to rape in Massachusetts. However, Paglia conducted the hearing anyway and ruled in favor of Sigh, thus relieving the Governor’s brother-in-law of any obligation to register as a sex offender.
Enter Plaintiff Saundra Edwards, who became SORB chair several months after Paglia conducted the hearing. Edwards took Paglia to the woodshed with respect to his handling of the Sigh case, and Paglia resigned. Now it was Edwards’ turn to get called into the woodshed, this time by the Governor’s staff. Edwards was informed that she was being terminated, but not for any particular reason. However, when Governor Patrick made public statements about Edwards’ termination, he did give a reason, accusing her of “inappropriately” “pressuring [Paglia] . . . to change the outcome of a case.”
Edwards Sues for Defamation
Edwards sued Patrick for defamation, specifically for falsely “accusing her of wrongdoing.” Patrick moved to dismiss; he argued that, even if he did defame Edwards, his statements were protected from liability by an absolute privilege that attached to any statements he made to the media while discharging his official duties.
A Superior Court judge denied the motion on the grounds that no such privilege existed, and Patrick appealed. Patrick’s motion for direct appellate review was allowed, so the matter leapfrogged the Massachusetts Appeals Court and went directly to the SJC.
The SJC first noted that absolute privileges, which provide a complete defense to defamation, are rare birds, mostly “limited to situations in which public policy or the administration of justice requires complete immunity.” Was this one of those situations?
Patrick argued that it was. High ranking federal officials already have absolute immunity from defamation claims, which the federal courts have justified on two public policy grounds: (1) that federal officials should be allowed to discharge their duties without the fear and distraction of lawsuits and; (2) that they should be able to speak with complete candor on matters of public importance. Thus, in service of the “greater good,” some defamed plaintiffs will not have a remedy. The SJC noted that a majority of states to have considered the issue have applied something like the federal privilege to governors and cabinet-level state officials, including in Illinois, Tennessee and Texas.
On the other hand, other jurisdictions have articulated equally good reasons for not affording such a privilege. The New York Court of Appeals, for example, held that “public office does not carry with it a license to defame at will.” Alaska and Arizona agree.
The SJC Punts
Twice before, in Mulgrew v. Taunton and Vigoda v. Barton, the SJC considered whether public officials (a police chief and a state hospital superintendent) had an absolute privilege to defame. In each case, the SJC punted on the issue by finding some other reason that the suit could not go forward.
And in the end, that’s also what happened in Edwards v. Commonwealth. After a review of the conflicting policy considerations for and against an absolute privilege, the SJC’s opinion abruptly shifts to a discussion of the sufficiency of Edward’s complaint. As a public figure, Edwards was required to prove that Patrick made a false statement with “actual malice,” that is, with knowledge of its falsity or reckless disregard as to its truth.
Here, the SJC found that Edwards had failed to sufficiently allege facts to support the “actual malice” part of her claim. Edwards alleged that Patrick’s “spite and ill will” could be inferred because of the potential negative impact of Edwards’ actions on his brother-in-law, but the Court held this insufficient by itself to amount to a pleading of actual malice. Edwards also asserted that the difference between the reasons given for her termination in private and in public was evidence Patrick knew he was lying, but the SJC was unimpressed by this argument, holding that it required too many inferential steps.
The SJC reversed the Superior Court’s denial of the motion to dismiss. The SJC did not indicate whether Edwards will be allowed to amend her pleadings to include more specific allegations of actual malice. If she does, perhaps that SJC will get another set of downs on the issue of absolute privilege.