Should Arizona’s attorney general say whatever he wants and not get sued?
A fight between Attorney General Terry Goddard and an Arizona land developer will resume Oct. 2 when the Arizona Supreme Court hears the attorney general appeal for unconditional legal protections from defamation lawsuits.
Next month’s round of questioning over the immunity level enjoyed by Goddard, one of Arizona’s five top elected officials, stems from a February 2005 announcement of a multi-count lawsuit against land developer George Johnson, his wife and several businesses.
In so many words, Goddard is asking the court to upgrade his protection for defamation suits from a shield to an impenetrable force field from liability. A trial court judge and the majority of a three-judge Court of Appeals panel have rejected that request.
The accusations against Johnson
The civil action against Johnson and several companies, brought on the behalf of five state agencies, accused the developer and rancher of destroying the landscape in Pinal and Apache counties, where lands were cleared to construct residential communities and agricultural businesses.
Goddard’s public announcement accused Johnson of illegally bulldozing thousands of acres, destroying 40,000 protected native plants, ruining Hohokam archaeological sites dating back to 600 A.D., damaging waterways and sparking a “disease epidemic” among the region’s desert big horn sheep by bringing in infected goats.
The actions of Johnson amounted to “wanton destruction of Arizona’s heritage resources” that was “unprecedented,” according to the Attorney General’s Office.
Johnson’s guilt or innocence has not been established since the case’s progress was delayed after the developer filed a counter claim in Maricopa County Superior Court in October 2005, seeking at least $40 million in damages.
The claim alleges Johnson’s businesses and reputation were damaged by knowingly false public accusations made by Goddard and Arizona Department of Environmental Quality Director Steve Owens in an interest to further their political careers.
Specifically, Johnson’s claim charges the suit is payback for challenging ADEQ’s use of selective, and sometimes illegal, environmental enforcement measures meted to Johnson’s business.
Additionally, lawyers for Johnson and other defendants blame an outside contractor for clearing state trust lands outside of clearly marked boundaries — and say steps were taken to improve the agricultural output of other lands bought by Johnson and another couple that have been “farmed and ranched for decades.”
If Goddard is to lose his case before the state high court, Johnson would be free to pursue his defamation case against the attorney general, said Patrick Van Zanen, an attorney for the developer.
Without speaking specifically to the case, Van Zanen said the state’s highest elected officials are protected from defamations suits if their statements, even if mistaken, are made in good faith.
“We’re just saying that he cannot get up there and knowingly and maliciously defame someone,” he said. “That’s not a lot to ask.”
Appeals court: Goddard failed to prove he needs more immunity
In January, the state’s Court of Appeals ruled Goddard failed to prove that high standard was essential to execute his duties as the state’s highest enforcer of Arizona laws, as required by case law established in 1986.
The appeals court panel was unmoved by claims that the vulnerability to defamation suits prevented the attorney general from prosecuting cases without distraction and hampered his ability to represent government agencies.
The majority was also not swayed that maintaining the qualified immunity standard would result in defendants filing defamation claims as a legal defensive strategy, nor did the court believe that standard would damage his ability to keep the public informed about litigation carried out on their behalf.
Instead, the court found the current standard of qualified immunity offered sufficient protections. Case law requires an aggrieved party to prove damaging and unfounded accusations were made by a public official with “objective malice.”
What’s the difference?
Defamation is characterized by the making or publishing statements about someone to third parties that are false and damaging to others’ reputations. The claims must be made with actual malice, meaning the information was known to be false or made with reckless disregard to whether the accusation is true or false, said attorney Joel Robbins.
“Reckless disregard of the truth of a statement occurs when the defendant has serious doubts as to the truth or consciously disregards it,” said Robbins, paraphrasing Arizona jury instructions for defamation lawsuits. “Reckless disregard also occurs when a defendant has a high degree of awareness of the probable falsity of a statement.”
And quite simply, absolute immunity is, as it sounds; absolute, said Robbins, who represented Dan Saban in a losing defamation suit against Maricopa County Sheriff Joe Arpaio.
Qualified immunity is a fairly substantial protection from defamation suits, given the burden of proving actual malice, he said. An important distinction, however, is how the two different types of standards are handled in court.
“Absolute immunity is established by status (of executive officer) which is encouraged to be quickly settled with a motion to dismiss,” Robbins said. “Qualified immunity suits, on the other hand, have to be factually supported. You have to prove actual malice with clear and convincing evidence.”
But rarely does a defendant voluntary admit to seeking to publicly smear a person with little regard for the truth. And as a result, judges are prone to offer a bit of latitude in such cases and are more likely to accept circumstantial evidence, he said.
Craig Morgan, an attorney specializing in media and public records law, says that citizens might want to hold their elected officials liable to defamation claims, but adds absolute immunity isn’t a “wholesale protection” for elected officials, echoing legal claims made by Goddard.
Besides the risk of being voted out of office, the attorney general is subject to sanctions for malfeasance by the courts — and disbarment by the State Bar of Arizona, like any other lawyer.
A “pretty decent example” of this, said Morgan, is disgraced former Durham County (North Carolina) District Attorney Mike Nifong.
In June, Nifong was stripped of his law license by the North Carolina Bar Association, which found he willfully distorted a rape investigation involving three white Duke University lacrosse players and a black woman.
Panel members concluded the prosecutor sought to use the rape, which never occurred, to stoke public sentiment in order to bolster his chances at the polls.
During the course of the investigation, the panel observed, Nifong made numerous inflammatory statements, including calling the athletes “hooligans” and telling voters that Durham would not become known for “a bunch of lacrosse players raping a black girl.”
“He was disbarred and went through the legal process,” said Morgan. “If you do something like that the citizens will know — or at least that is what the assumption is.”
Goddard appeal attacks standard
Goddard’s most recent appeal attacks the current standard on a number of fronts. All states that have considered whether to implement the “high-level executive immunity” have granted the protection to the attorney general, according to his filing.
Such cases routinely cite the 1959 U.S
. Supreme Court case Barr V. Mateo, which states officials should be free to pursue their duties without the fear of time and energy consuming lawsuits.
“It is better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation,” according to Goddard’s petition for review, citing a direct quote found in Mateo.
His attorneys also believe the appellate court misapplied the qualified immunity protection of the 1986 Arizona Supreme Court decision in Chamberlain v. Mathis because the case pertained to an appointed agency director of the Department of Health Services, not a high level elected official.
Further, the “inherently antagonistic” job of the state’s chief law enforcement officer, creates a disproportionate risk to such lawsuits than a department head. The fact the attorney general is elected also brings upon greater responsibility to communicate with voters, according to court documents.
Filings by attorneys from Goddard’s office also attack Johnson’s defamation claim as an effort to “wear down the other side by significantly increasing the burden of litigation” with no intention to “win on the merits.”
Balancing rights of government vs. citizens
Johnson’s attorneys counter that the qualifying immunity standard is necessary to balance the rights of government and the rights of citizens. And though other deterrents to government misuse of power exist, absolute immunity robs individuals of their ability to respond to abuses, especially when such acts can be “politically expedient.”
“It is of little comfort to the citizen whose life and reputation have been ruined by a public official’s malicious actions that the official may some day be voted out office or sanctioned,” notes Johnson’s filing.
Johnson’s defense of the qualified immunity standard is also rooted in state history, adding at the time of the state’s formation in 1912 the “progressive” movement emphasizing citizen control over business and government officials was in full swing.
Evidence of this is the state Constitution’s “novel features” such as public initiatives, referendums, the power to recall elected officials and curbs on the authority of the governor.
Arizona’s charter also ensures no limit to damages sought and states the right to recover damages “shall never be abrogated…,” according to court documents filed on behalf of Johnson.
‘A definite impact’
While the outcome of the lawsuit has yet to be settled, continued use of the qualified immunity standard will have a definitive impact, said Morgan, an attorney specializing in media law.
“Every time an executive officer sits down to do something they’ll think twice,” he said. “Is that a good thing? Maybe.”
Goddard’s charges leveled against Johnson also target several businesses, including Johnson International, The Ranch at Southfork, General Hunt Properties, Atlas Southwest and ABC Corporations and several unnamed families.
It was filed on behalf of ADEQ, the Arizona State Land Department, the Arizona Game and Fish Commission, the Arizona Department of Agriculture, and the Arizona Board of Regents acting on behalf of the Arizona State Museum.
The Arizona Attorney General’s Office did not respond to requests for comment.
FYI
The Maricopa County Superior Court case number is No. CV2005-002692.