Misdemeanor Public Defender's Defamation Claim Against ACLU Can Go Forward

[UPDATE 5/26/2022: This decision was reversed in October 2021 by the Georgia Supreme Court, though remanded for further rulings on discovery motions.]

From Tuesday's Georgia Court of Appeals opinion by Judge Clyde Reese in ACLU v. Zeh, joined by Judges D. Todd Markle and Verda Colvin:

Zeh's complaint alleged the following facts. In 2015, Zeh was the part-time misdemeanor public defender in state court in Glynn County, but he also had a private practice where he represented clients in a variety of matters including felony cases in superior court. On the morning of April 1, 2015, Robert Cox was arraigned in state court for misdemeanor shoplifting. Cox attempted to plead guilty to the misdemeanor, but the prosecutor announced his intention to transfer the case to superior court and charge Cox with a felony pursuant to The judge advised Cox to consult with an attorney.

Later that day, Cox went to Zeh's private practice office, seeking representation on the felony charge. Zeh's secretary contacted the office of the solicitor, who confirmed that Cox's charge would be increased to a felony and transferred to superior court. Cox agreed to compensate Zeh $2,500 for his professional services regarding the felony charge, and Cox's mother, Barbara Hamilton, mailed a check to Zeh that day. The case was transferred to superior court five days later, and Zeh ultimately secured a dismissal of the felony charge against Cox.

Three years later, the ACLU published a blog post titled, "Glynn County, Georgia's Crooked Public Defender[.]" The blog post began:

"As the public defender for Glynn County, Georgia, Reid Zeh is entrusted with advocating for the most vulnerable members of his community when they come up against the criminal justice system. Rather than do his job, however, Zeh routinely ignores his clients or worse — extorts them to enrich himself. That's what happened when Robert Cox and his 75-year-old mother, Barbara Hamilton, came to Zeh for legal assistance after Cox was charged with a misdemeanor. Instead of looking out for his client's interests, Zeh took advantage of the family by charging them $2,500 for services that should have been free-of-charge."

The blog post went on to state that Zeh's behavior, which included ignoring Cox over the next two years, was consistent with the experiences of the ACLU's original two clients in the ACLU's pending lawsuit against Zeh and others. The ACLU continued: "That's why this week we're seeking permission from the [federal district] court to add Cox and Hamilton to our lawsuit against Zeh for his role in perpetuating Glynn County's wealth-based incarceration system and for failing to provide legal assistance to his clients who cannot afford a private attorney." {According to the ACLU, the blog post included a hyperlink, connected to the phrase "seeking permission" in the summary paragraph, to the relevant case filings.}

The ACLU also linked to the article in a paid advertisement on Facebook, which included a picture of Zeh with the headline: "Rather than trying to get his clients out of jail, this public defender extorts money from them." …

The court held that Zeh's case could go forward:

According to the complaint, the ACLU falsely stated that, in his role as a public defender, Zeh "extorted" his clients by "charging them $2,500 for services that should have been free-of-charge." Although the ACLU argues that it was merely stating an opinion, its expression implies an assertion of objective fact. As noted above, Zeh alleged that he maintained a private practice in order to handle felonies. [This presumably refers to Zeh's part-time job for the county being a misdemeanor public defender, so that he did not have to provide felony representation for free. -EV] Accepting Zeh's evidence as true, he has made a sufficient prima facie showing to establish that the objective facts were false and defamatory….

Certain … communications are conditionally privileged where they are made in good faith. {The following communications are deemed privileged: (1) Statements made in good faith in the performance of a public duty; (2) Statements made in good faith in the performance of a legal or moral private duty; (3) Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned; (4) Statements made in good faith as part of an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of  Code Section 9-11-11.1; (5) Fair and honest reports of the proceedings of legislative or judicial bodies; (6) Fair and honest reports of court proceedings; (7) Comments of counsel, fairly made, on the circumstances of a case in which he or she is involved and on the conduct of the parties in connection therewith; (8) Truthful reports of information received from any arresting officer or police authorities; and (9) Comments upon the acts of public men or public women in their public capacity and with reference thereto.} However, Zeh has established a prima facie case that the ACLU did not make its statements in good faith, and that the statements are thus not privileged ….

"Statements are deemed to have not been made in good faith, but rather with malice, if the evidence shows in a clear and convincing manner that a defendant in fact entertained serious doubts as to the truth of his statements." Construed in the light most favorable to Zeh, Zeh did not represent Cox until after the prosecutor had expressed his intent in open court to transfer the shoplifting charge to superior court and charge Cox with a felony. Such transfer happened a few days later, more than three years before the ACLU made the statements at issue….

Zeh has made a prima facie showing that, as a part-time misdemeanor public defender, he is not a public official under the standard of New York Times Co. v. Sullivan. He has also made a prima facie showing that the ACLU should have determined from public court records whether there was any truth to Cox's contentions.

{In Cox's June 15, 2018 declaration, attached to the motion for leave to file an amended complaint in the federal action, Cox stated that he struggled with an alcohol abuse disorder and that he had been charged with misdemeanors in Glynn County more times than he could remember. According to Cox, his attorneys had "refreshed [his] memory by sharing a handful of [his] court records." Cox stated: "Based on reviewing those records, I can describe a few of my cases over the last several months." "In one case after approximately seven arrests," Cox went to his court date, where the judge "directed [him] to see the public defender, Mr. Zeh. [Cox] went to Mr. Zeh's office right after court. Mr. Zeh indicated that he would charge [Cox] an additional $2,500 to represent me as my public defender."}