A Loudoun County Circuit Court denies a plea in bar filed by defendants to plaintiff’s defamation suit, based on plaintiff’s allegations that defendants arranged for photographs of plaintiff being arrested for embezzlement and for further dissemination of those photos, even though plaintiff, their former residential property manager, was acquitted of the alleged embezzlement.
Plaintiff Deanne Hubbard alleges she was an employee of defendants, Jack and Mary Goehring, acting as a manager for their rental properties, and that her children and their spouses (also plaintiffs) were occupants of commercial and residential properties over which she was acting as a manager for the Goehrings. Plaintiffs allege Mr. Goehring, acting on his own and as an agent for his wife, filed a criminal theft affidavit alleging identity theft, fraud, embezzlement and/or bank fraud. Defendants Jack Goehring III and Mary K. Goehring met with state police and asked to have fraud added to the list of charges against plaintiff Deanne Hubbard, and wrote to an assistant prosecutor twice informing him of their intent to file civil charges and later making statements labeling plaintiff Deanne Hubbard as a thief and alleging theft of $122,000.
Ms. Hubbard also alleges Mr. Goehring received information from the Middleburg police chief regarding the time and place of plaintiff Hubbard’s arrest and arranged for a photographer friend to photograph the arrest, and that Mr. Goehring assisted his friend in securing a local press buyer for the photos. The photos of Deanne Hubbard in handcuffs and of her arrest were subsequently published on the front page of a local newspaper, on NBC Evening News, Channel 4 and YouTube. Plaintiffs also allege that Jack Goehring III, acting on his own and on behalf of his wife, Mary K. Goehring, made defamatory comments that, if proven, would be libelous per se. Ms. Hubbard was acquitted of all embezzlement charges.
Section 586 of the Restatement 2nd of Torts says that an attorney is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the situation of, or during the course and as part of, a judicial proceeding in which he participates as a counsel, if it has some relation to the proceedings. Although case law has extended the definition of attorney to include other judicial officers, the underlying rationale here is to protect the ability of officers of the law to carry out their duties. Section 587 say a party to private litigation or a defendant or private prosecutor in a criminal prosecution is privileged to publish any statement pertinent to the proposed judicial proceeding prior to or during the course of the proceedings.
Comments to these Restatement provisions articulate a policy that requires a good faith to cover the speech under judicial immunity. Formality requirements, such as filing a complaint under oath, imply a good faith requirement on the part of the private individual bringing the charges and throughout the prosecution. If believed, many of the alleged statements here go beyond relevant material for a criminal complaint. Mr. Goehring secured a photographer friend to photograph plaintiff’s arrest in handcuffs. He subsequently assisted his friend in securing a local press buyer which lead to the photos being published on the front page of a local newspaper.
Defendants cite Mansfield v. Bernabei, 284 Va. 116 (2012), to argue that their statements to law enforcement officers were covered by judicial immunity. The Supreme Court considered the absolute judicial immunity adopted by a string of cases in Virginia and extended the privilege to the pre-filing stage of litigation. Contrary to defendants’’ argument, Mansfield does not overturn Lewis v. Kei, 281 Va. 715 (2011), where a plaintiff falsely accused of criminal behavior brought a defamation suit. Mansfield merely extended the time frame during which statements are protected by judicial immunity to include the pre-filing stage of litigation. The statements made by defendants here far predated the pre-filing stage of litigation.
Defendants have raised the defense of judicial immunity to plaintiff’s defamation claims. The many alleged false and defamatory statements about plaintiffs were made to a variety of individuals in various contexts, some of which may be subject to good faith limitations applicable to the privilege and some that may not be so limited by the issue of relevancy to the ongoing criminal investigation and prosecution. The court will not on the instant plea in bar parse out those statements that are from those that are not. However, following discovery in the case, defendants may raise again the issue of privilege by way of a further special plea directed to the specific statements at issue, motion in limine, jury instruction or objections at trial.
Plea in bar overruled, subject to further order by the court.
Hubbard v. Goehring (Horne) No. CL 00072386-00; Nov. 1, 2012; Loudoun County Cir.Ct.; Edward B. MacMahon Jr., Michael S. Horwatt, Danielle D. Giroux for the parties. VLW 012-8-196, 6 pp.