Dismissal Not Appropriate In Sheriff’s Defamation Suit Against Prosecutor

The Indiana Court of Appeals reversed the dismissal of a defamation suit brought by a county sheriff against the county prosecutor

This case arises from a public dispute between Clinton County’s Sheriff and its Prosecutor. Sheriff Richard Kelly and his wife, Ashley Kelly, sued County Prosecutor Anthony Sommer for defamation and emotional distress after Sommer spoke to the media about a State Board of Accounts (SBOA) investigation into the Kellys’ management of jail funds. The trial court dismissed the lawsuit at Sommer’s request, finding his actions were protected by common law prosecutorial immunity. But the application of immunity in this case turns on disputed factual questions about the nature and scope of Sommer’s conduct as it relates to his prosecutorial function—questions that remain unresolved at this early stage. We therefore reverse.

Facts

Sheriff Kelly and Prosecutor Sommer initially had a “friendly” relationship, but it quickly “deteriorated” over disputes about law enforcement authority in the county. Appellant’s Br., p. 6. Sommer then raised concerns about the Kellys’ management and operation of the local jail commissary. Upon taking office, Sheriff Kelly had appointed his wife as both Jail Matron and Commissary Manager of the Clinton County Jail. Under this arrangement, Mrs. Kelly earned $1,500 per week in each role for a total weekly compensation of $3,000. Sommer reported his concerns about this arrangement to the SBOA, requesting it open an investigation.

Soon after, a local journalist published an article about the SBOA investigation, reporting that Mrs. Kelly earned $1,500 per week to manage the commissary and quoting a County Commissioner as opining that such salary was higher than any county employee. The article, however, noted that six other county employees earned equal or higher weekly compensation.

Believing the reported salary information for Mrs. Kelly to be incomplete, Sommer contacted the journalist to “correct the record and provide additional information in order to keep things balanced.” App. Vol. II, p. 19. Sommer met with the journalist and explained that the article failed to mention that Mrs. Kelly received an additional $1,500 weekly as Jail Matron, meaning her total compensation was $3,000 per week. Sommer then provided the journalist with a jail commissary report that he claimed was produced by Sheriff Kelly and his department. The report appeared to “show transfers and disappearances of millions of dollars.” Id. at 22. The Kellys claim that the report was fake and was not generated by the Sheriff’s Department. Though they are not certain of its source, the Kellys believe the report was given to Sommer by the county attorney as part of a conspiracy to harm the Kellys’ reputation.

Sommer spoke to a journalist, purportedly “off the record”

When Sommer’s statements from that meeting later became public, Sommer told the media that, when he spoke with the journalist, he “was not making any statement on the pending criminal investigation or audit, and that [he] had no findings from either one.” Id. at 22.

The court

At this early stage, viewing the facts in the light most favorable to the Kellys, we cannot conclude that Sommer’s conduct fell within his prosecutorial function. The record shows Sommer used his official position to share allegedly fabricated documents about an investigation his office was not handling, during an off-the-record meeting he requested, while disclaiming any official involvement. Because Sommer has not carried his burden of showing his actions were protected by common law immunity, dismissal on this basis was improper.

Immunity

At this early stage of the proceedings, viewing all well-pleaded facts in the light most favorable to the Kellys, Sommer has not met his burden to obtain dismissal based on immunity. We reverse the trial court’s granting of Sommer’s motion to dismiss.

(Mike Frisch)