Newburgh Heights mayor won’t appeal judge’s dismissal of lawsuit against local TV station
Updated 11:16 AM; Posted 10:33 AM
By Cory Shaffer, cleveland.com
CLEVELAND, Ohio -- Newburgh Heights Mayor Trevor Elkins announced Thursday that he and members of village council will not appeal a county judge’s decision to throw out a defamation lawsuit they filed against a local TV station.
Elkins said in a news release Thursday that, even though he lost the lawsuit, his effort was a success because Common Pleas Court Judge Stuart Friedman’s order dismissing his lawsuit was heavily critical of the November 2017 story by WEWS Channel 5′s Jonathan Walsh about the village’s billing practices after car accidents.
Elkins said one of his main objectives in filing the lawsuit was to show the story was “bogus.”
“Judge Friedman’s opinion expressly confirms all of this, and in light of this recognition, we’ve concluded that it is no longer worth undertaking the burden and expense of this lawsuit any further," Elkins said in a statement. "In our view, it has been a success. We also hope it is now clear that recovering Village funds from legally obligated insurance companies is just good policy.”
Friedman wrote in his Dec. 14 dismissal that the village’s practices were legal, and that Walsh relied upon “insinuation and innuendo” to reach the conclusion that it was a “scam.”
“The evidence shows that defendants’ expose is nothing more than a superficial stringing together of unrelated actions by the Village – all perfectly legal – in order to create the illusion that there is something ‘fishy’ happening in Newburgh Heights,” Friedman wrote. “In other words, the newscast is all tip, but no iceberg.”
Even so, Friedman said that the Elkins and the others failed to show the story’s issues reached the legal requirements to sustain a libel lawsuit.
“Such reporting, while arguably misleading, is not so serious a departure from good investigative standards as to rise to the level of reckless and wanton conduct, let alone actual malice,” Friedman wrote.
Elkins’s attorney, Peter Pattakos, said in Thursday’s release that Elkins still believes Friedman was wrong to dismiss the lawsuit.
“My clients and I do, however, appreciate the importance of the First Amendment and the freedom to criticize public officials, and while we are confident that Judge Friedman was wrong on the law—which does not grant a privilege to publish knowingly false and defamatory statements as News 5 did here—this was another consideration informing the decision not to appeal,” Pattakos said.
WEWS News Director Sean McGarvy was not immediately available for comment Thursday. In a statement after Friedman’s December ruling, McGarvy declined to address Friedman’s comments.
“We are pleased with the court’s ruling but have no other comment," McGarvy wrote.
The Nov. 2, 2017 story, titled "How a government-sanctioned scam in Newburgh Heights has taken thousands of dollars from drivers,” claims that Elkins and Newburgh Heights bill drivers for calling the police after an accident, and that the village runs a widespread “scam” that sends “official-looking bills” to some drivers without telling them that the city will not actually seek to enforce payment if they don’t pay.
The case was originally assigned to Judge Kelly Ann Gallagher, who in May denied a similar request to dismiss the lawsuit and allowed it to proceed. After the ruling, the station’s lawyer, Monica Dias, learned that Gallagher and Elkins, who are both Democrats, had contributed to each other’s campaigns and praised one another in social media posts. Dias filed a motion with the Ohio Supreme Court to have Gallagher kicked off the case. Gallagher said she held no bias in favor of Elkins but still voluntarily recused herself, and the case was assigned to Friedman.