IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND Civil Division DEMURRER. I. Facts

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1 VIRGINIA: IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND Civil Division TERESA L. ALTEMUS, Plaintiff, v. Case No.: 760CL ROBERT D. HICKS, Defendant. DEMURRER The defendant, Robert D. Hicks ( Hicks ) submits this as his Demurrer to the Complaint filed by the plaintiff, Teresa L. Altemus (the Plaintiff ). I. Facts The Plaintiff is a member of the Gloucester County Board of Supervisors. He alleges that he and three other Supervisors were indicted by a grand jury for various offenses. Complaint Hicks is the Commonwealth s Attorney for Gloucester County, and the Complaint alleges that Hicks was disqualified from prosecuting the cases against the Supervisors. The court appointed a Special Prosecutor, and some time later she moved to dismiss the indictments. Her motion was granted and the indictments were dismissed. The Plaintiff alleges that Hicks thereafter defamed him by making four statements: 1. I think the cases were winnable. 2. I think I could have made those charges stick. 3. I think the charges [against the Supervisors] were viable. I think they should have been heard in an open courtroom.

2 4. That had Hicks not been disqualified, he could have secured convictions on some, if not all, of the charges against the Supervisors. See Complaint, 22, 25. In context, however, Hicks s remarks were aimed squarely at the Special Prosecutor, not at the Plaintiff. Complaint Exhibit E reports that Hicks disagreed with Dodson s legal conclusions that led the special prosecutor to ask for dismissal of the criminal charges, I think the charges were viable. I think they should have been heard in an open courtroom, he said. If they had, and Hicks were the prosecutor, he said he believes that he could have secured convictions on some, if not all, of the charges. Id. Hicks s statements in Complaint Exhibit D are similarly aimed not at the Plaintiff, but at the Special Prosecutor: Hicks said the motion to dismiss was oversimplified and flawed, and he criticized Dodson for not consulting with him about the indictment. I think the cases were winnable, he said. I think I could have made those charges stick. Id. II. Argument Legal Standard for Demurrer A demurrer admits the truth of the facts contained in the pleading to which it is addressed, as well as any facts that may be reasonably and fairly implied and inferred from those allegations. Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991). A demurrer does not, however, admit the correctness of the pleader's conclusions of law. Ward's Equip., Inc. v. New Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997). Elements of Defamation Claim 2

3 To state a cause of action for defamation a complaint must allege three elements: 1) publication, 2) of a false, defamatory statement, 3) with the requisite intent. Jordan v. Kollman, 269 Va. 569, 575, 612 S.E.2d 203, 206 (2005). The false statement must be alleged with particularity and tend so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Chapin v. Knight- Ridder, Inc., 993 F.2d 1087, 1092 (1993); see also Perk v. Vector Resources Group. Ltd., 253 Va. 310, 317, 485 S.E.2d 140, 144 (1997). Actual Malice Standard The right to seek legal redress for defamation is constrained by the protections of free speech set forth in the First Amendment to the United States Constitution and Article I, Section 12 of the Constitution of Virginia. Yeagle v. Collegiate Times, 255 Va. 293, 295, 497 S.E.2d 136, 137 (1998). The intent required to prove defamation depends, in part, on whether a plaintiff is a public figure. See Jordan, 269 Va. at 576, 612 S.E.2d at 207. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court held that a public official may not recover damages for defamatory falsehoods related to his official conduct except upon proof that the defamatory statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id. at ; see also Monitor Patriot Co. v. Roy, 401 U.S. 265, (1971) (proof of actual malice required when political candidate alleges defamatory statements related to his fitness for office). In the case at bar, because the Plaintiff was a political officeholder at the time of the allegedly defamatory remarks, he was unquestionably a public figure who must plead and prove actual malice in order to recover. 3

4 See Jackson v. Hartig, 274 Va. 219, , 645 S.E.2d 303 (2007) ( since the alleged defamatory statements clearly spoke to [the plaintiff s] qualifications for elective office, this case falls squarely within the New York Times framework. ) (citing Ocala Star-Banner Co. v. Damron, 401 U.S. 295, (1971)). Hicks s Statements Are Opinion and Are Not Actionable The Complaint alleges that Hicks made the following statements: 1. I think the cases were winnable. 2. I think I could have made those charges stick. 3. I think the charges [against the Supervisors] were viable. I think they should have been heard in an open courtroom. 4. That had Hicks not been disqualified, he could have secured convictions on some, if not all, of the charges against the Supervisors. None of those remarks states facts that are provably false. They are opinions and are not actionable under the law of Virginia. Fuste v. Riverside Healthcare Association, Inc., 265 Va. 127, 132, 575 S.E.2d 858, 861 (2003). Such statements enjoy constitutional protection. Statements that are not verifiable are protected by the First Amendment and do not state a cause of action for defamation. Speech that does not contain a provably false factual connotation, or statements which cannot reasonably be interpreted as stating actual facts about a person, are not actionable. Tronfeld v. Nationwide Mutual Ins. Co., 272 Va. 709, 714, 636 S.E.2d 447 (2006) (citing Yeagle v. Collegiate Times, 255 Va. 293, 295, 497 S.E.2d 136, 137 (1998) and Milkovich v. Lorain Journal Co., 497 U.S. 1, 16-17, 20 (1990)); see also Snyder v. Phelps, 580 F.3d 206, (4th Cir. 2009). The Fourth Circuit in Snyder focused on the verifiability of the 4

5 [allegedly defamatory] statement, because a statement not subject to objective verification is not likely to assert actual facts. Id. (citing Chapin v. Knight-Ridder, Inc., 993 F.2d at 1093); see also Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) ( [I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable. ). Snyder recognized that there are two subcategories of speech that cannot reasonably be interpreted as stating actual facts about an individual, and that thus constitute speech that is constitutionally protected. To begin with, the First Amendment protects statements on matters of public concern that fail to contain a provably false factual connotation. Id. (citing Milkovich, 497 U.S. at 20. Whether challenged speech involves a matter of public concern requires examining the content, form, and context of such speech. Id. (citing Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985)). Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community. Kirby v. City of Elizabeth City, N.C., 388 F.3d 440, 446 (4th Cir. 2004). By any measure, Hicks s remarks in the case at bar were on a matter of public concern because they addressed the disposition of criminal charges against four County Supervisors. The second type of protected remarks are rhetorical statements employing loose, figurative, or hyperbolic language which are entitled to First Amendment protection to ensure that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation. Snyder, 580 F.3d at 220 (quoting Milkovich, 497 U.S. at 20-21); see also Greenbelt Coop. Publ'g Ass'n v. 5

6 Bresler, 398 U.S. 6, (1970) (treating description of negotiating position as blackmail as epithet not conveying commission of actual crime). Whether an alleged defamatory statement is one of fact or of opinion is a question of law to be resolved by the trial court. WJLA-TV, 264 Va. at , 564 S.E.2d at 392. In the same respect, courts assess as a matter of law whether speech contains rhetorical hyperbole protected by the First Amendment. See CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 294 (4th Cir. 2008); Snyder, 580 F.3d at 220. Hicks s statements fall within both categories of protected speech. First, none of the challenged statements contains provably false facts. Statement 1 cannot be proven false because no one can now conclusively establish that the cases were not winnable, for the fundamental reason that the cases were not prosecuted. Statement 1 is thus no more factual and subject to proof than the statement, the Vietnam War was winnable. Moreover, cases can be won by means other than convictions on the charges actually brought. Plea bargains are a common feature of criminal prosecutions, and when such deals are struck, both sides can claim that they have won. There is simply no way to tell now whether, if the cases had been prosecuted to the fullest extent of the law, the Plaintiff would have been convicted, acquitted, or accepted a plea bargain. Statements 2 and 4 are similarly speculative, inasmuch as they relate to events that did not occur and cannot occur. No one knows what would have happened if Hicks had prosecuted the Plaintiff. What is factual is that Hicks did not prosecute the Plaintiff. Statements 2 and 4 are on a par with statements such as: if I quarterbacked the Redskins they d win the NFC East or if I had prosecuted Zacharias Moussaoui he would have received the death penalty. They are 6

7 sheer speculations on what might have been, but was not. Finally, Statement 3 averred that the charges were viable, which is a vaguer version of Statements 2 and 4, and that the charges should have been heard in court. The latter phrase is not defamatory for two reasons: (i) it is an opinion incapable of being proven true or false; and (ii) it is not injurious to the Plaintiff s reputation. Milkovich is particularly instructive. In Milkovich, the defendant wrote a column stating that the plaintiff told a lie when he testified under oath. The Court found that the statement was not an opinion, because it was capable of being proven true or false in a perjury prosecution. Unlike a subjective assertion, the averred defamatory language is an articulation of an objectively verifiable event. Milkovich, 497 U.S. at 22. Here, in contrast, the judicial proceeding under discussion (the charges against the Plaintiff) had already concluded at the time of the allegedly defamatory remarks. Hicks s remarks related to a purely theoretical reality, an imagined outcome that could not and would not come to pass. There is no equivalent in the case at bar to the (theoretically possible) perjury prosecution in Milkovich. Hicks s four statements are thus not only not verifiable, they are precisely the kind of rhetorical or hyperbolic language protected under the second category of constitutionally sheltered speech. Consistent with Milkovich, the Supreme Court of Virginia has held that [s]tatements that are relative in nature and depend largely upon the speaker's viewpoint are expressions of opinion. Fuste v. Riverside Healthcare Ass n, 265 Va. 127, 132, 575 S.E.2d 858, 861 (2003). Additionally, [s]peech that does not contain a provably false factual connotation is sometimes referred to as pure expressions of opinion. WJLA-TV v. Levin, 264 Va. 140, 156, 564 S.E.2d 383, 392 (2002). It is firmly established that pure expressions of opinion are protected by both 7

8 the First Amendment to the Federal Constitution and Article I, Section 12 of the Constitution of Virginia and, therefore, cannot form the basis of a defamation action. Williams v. Garraghty, 249 Va. 224, 233, 455 S.E.2d 209, 215 (1995); see also Steinla v. Jackson, 42 Va. Cir. 281 (City of Winchester Cir. Ct. 1997) ( [O]pinion statements, defamatory or otherwise, are not actionable unless they contain provably true or false factual connotations. ) (citing Milkovich, 497 U.S. at 17-20); Raytheon Technical Services Co. v. Hyland, 273 Va. 292, 303, 641 S.E.2d 84 (2007) ( the Supreme Court refused to create a wholesale defamation exemption for anything that might be labeled opinion,... instead holding that opinions may be actionable where they imply an assertion of objective fact. ) (internal citations omitted). Courts routinely, and understandably, hold that speech that forecasts future events is not defamatory because it is not verifiable and does not imply an assertion of objective fact. In Uline, Inc. v. JIT Packaging, Inc., 437 F. Supp. 2d 793, 804 (N. D. Ill. 2006), for example, the court held that a statement about the plaintiff s future financial condition was not defamatory because it was a prediction. [The statement] is not actionable as defamation since a prediction of future events can neither be true nor false. Id. at 804. See also Wilkow v. Forbes, 241 F.3d 552, 555 (7 th Cir. 2001) (stating that if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable) (quoting Haynes v. Alfred A. Knopf, Inc. 8 F.3d 1222, 1227 (7 th Cir. 1993)). In Habeck v. Cosby, Case No. CL (Chesterfield County Cir. Ct., January 22, 2009) (attached as Exhibit A hereto), Judge Gill recognized that Milkovich requires inquiry into whether the allegedly defamatory remarks state actual facts about an individual, and whether the statement is verifiable. The court ruled that 8

9 statements regarding potential future actions of Chesterfield County are not verifiable as they speak to things that have not happened yet. In the case at bar, Hicks s statements are doubly non-verifiable: not only are they predictions, they are predictions that relate to a nonexistent future, one where Hicks was not disqualified as prosecutor. In Partington v. Bugliosi, 825 F. Supp. 906 (D. Haw. 1993), affirmed, 56 F.3d 1147 (9 th Cir. 1995), the defendant, a criminal lawyer, told his client that If I defend you the way Partington [another criminal lawyer] is defending [a co-defendant], you ll spend the rest of your life in prison. The court held that the statement was pure opinion under Milkovich, because it could not be proven true or false. The court reasoned that [t]he instant statement like the statements Judge Jones often makes erroneous rulings and Attorney Alfred blew the case are not actionable because attorneys and judges alike are not immune from such statements that do not imply underlying defamatory facts. Criticisms of trial strategy make no such implication. Context is of critical importance in evaluating whether a statement is defamatory. See Fuste v. Riverside Healthcare Assoc., 265 Va. 127, 133, 575 S.E.2d 858 (2003), which cited Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 685 (4th Cir. 1989) for the proposition that a speaker's choice of words and the context of an alleged defamatory statement within the speech as a whole are factors to consider when deciding if a challenged statement is one of fact or opinion. Here, the context of Hicks s remarks shows that he was not aiming his remarks at the Plaintiff; he was instead criticizing the special prosecutor s decision to drop the charges. In Complaint Exhibit E, the newspaper reported that Hicks disagreed with Dodson s legal conclusions that led the special prosecutor to ask for dismissal of the criminal charges, I think the charges were viable. I think they should have been heard in an open courtroom, he said. If 9

10 they had, and Hicks were the prosecutor, he said he believes that he could have secured convictions on some, if not all, of the charges. Hicks s statements in Complaint Exhibit D are similarly aimed not at the Plaintiff, but at the special prosecutor: Hicks said the motion to dismiss was oversimplified and flawed, and he criticized Dodson for not consulting with him about the indictment. I think the cases were winnable, he said. I think I could have made those charges stick. The United States Supreme Court has insisted that debate on public issues remains uninhibited, robust, and wide-open. New York Times, 376 U.S. at 270 (quoted in Milkovich, 497 U.S. at 21). Hicks s statements, in context, are a paradigm of uninhibited and robust debate about an issue of unquestioned public importance. Hicks objected to a prosecutor s decision to drop criminal charges and said that he might have succeeded where she declined to fight. To permit this case to proceed would chill free speech in violation of the First Amendment because it would subject any critic of a prosecutor s decision to drop charges to a potential defamation lawsuit. Recently, United States Attorney General Eric Holder issued a public statement concerning the upcoming criminal trial of Khalid Sheikh Mohammed. There is really, from my perspective, very compelling evidence that I m not at liberty to discuss now that will probably not be revealed until we are in a trial setting, he said. The evidence that I am not talking about I think is compelling, is not tainted, and I think it will prove to be decisive in this case. See Exhibit B, Excerpt from the Weekly Standard, posted November 18, President Obama, for his part, told an NBC reporter, I don t think it will be offensive at all when he s convicted and when the death penalty is applied to him. See 10

11 critics-of-ksm-trial (last visited December 22, 2009). The Attorney General and the President had better be right, because under the Plaintiff s theory in this case, if the United States is unsuccessful prosecuting Mohammed, Mohammed will be able to sue Messrs. Holder and Obama for defamation. III. Conclusion For the reasons stated, Robert D. Hicks respectfully requests that the Court dismiss this case with prejudice. ROBERT D. HICKS John A. Gibney, Jr. VSB No Robert A. Dybing, VSB No Attorneys for Defendant ThompsonMcMullan, P.C. 100 Shockoe Slip, Third Floor Richmond, Virginia Telephone: (804) Fax: (804) jgibney@t-mlaw.com Certificate of Service By: Counsel I certify that on December 28, 2009, I mailed a copy of the foregoing to Anthony F. Troy, Esq., William H. Hurd, Esq., and Michael E. Lacy, Esq., Troutman Sanders LLP, PO Box 1122, Richmond, Virginia