Mayor Elkins and colleagues elect not to pursue Appeal in defamation case ruling, believe the judge’s opinion confirms the validity of Newburgh Heights’ policies.

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January 10, 2019

NEWBURGH HEIGHTS, OHIO—Mayor Trevor Elkins and his colleagues of the Newburgh Heights Village Council—Dorene Kray, Steven Moran, and Brian Schaffran have announced that they do not intend to appeal a December 13, 2018 decision by Cuyahoga County Common Pleas Judge Stuart Friedman dismissing their lawsuit alleging that they were defamed by a sensationalized news story produced and aired by WEWS-TV News 5 Cleveland, entitled “How a Government-Sanctioned Deception in Newburgh Heights Has Taken Thousands of Dollars from Drivers.”

In the lawsuit, Mayor Elkins and the Council members sought damages for Scripps Media and Jonathan Walsh false portrayal of Newburgh Heights’s practice of billing at-fault drivers’ insurance companies for Village services that the insurance companies were contractually obligated to pay as a “scam” and “widespread scheme” to “charge people for calling the police” or for “getting into an accident” in Newburgh Heights.

Judge Kelly Ann Gallagher, the judge first assigned to preside over the lawsuit, rejected various arguments from Defendants Scripps Media and Jonathan Walsh as to why the case against them should be dismissed. Upon taking over the case, Judge Friedman reconsidered and granted Defendants’ request for dismissal based on a finding that the Plaintiffs could not show that the false statements were made with the “actual malice” or “knowing or reckless” disregard for the truth that the First Amendment requires in defamation cases by public figures. In doing so, however, Judge Friedman also stated that,

The evidence shows that defendants’ exposé is nothing more than 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. … [A]s all of plaintiffs’ actions are legal, defendants have not exposed any “fraudulent or deceptive act or operation”—that is to say, defendants exposed no “scam.”

“A primary objective of our lawsuit was to obtain official recognition that News 5’s story was a bogus smear-job, that the Village’s conduct in recovering funds from insurance companies for the unlawful acts of their drivers is perfectly legal, and that there was no “scam” going on in Newburgh Heights,” said Mayor Elkins. “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. 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.”

“It’s impossible to understand how Judge Friedman could conclude, on one hand, that the News 5 story was ‘a superficial stringing together of unrelated and perfectly legal actions in order to create the illusion that there is something fishy happening in Newburgh Heights,’ and yet still find that the Defendants did not act with ‘knowing or reckless’ disregard for the falsity of their accusations,” said Peter Pattakos, attorney for Elkins and the Council members. “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.”