In the waning days of his tenure, Governor Deval Patrick ousted a state official in a dispute he acknowledged was unusually personal.
The “final straw” leading him to edge out the chairwoman of the Sex Offender Registry Board, he said, was her “inappropriate” and possibly “unlawful” interference in a case involving his brother-in-law.
Now Patrick, who left office 16 months ago, is being sued for defamation for those very comments — and he’s arguing that, because he was speaking as governor, he should be protected from such claims.
In an unusual if not unprecedented case, Patrick’s lawyers have claimed in Essex Superior Court that the suit should be dismissed because the allegedly defamatory statements were made “while he was acting within the scope of his official duties.”
The judge isn’t buying it.
In a strongly worded decision, Superior Court Judge Richard Welch II denied Patrick’s motion to dismiss the case in March.
“The Massachusetts [Supreme Judicial Court] has yet to recognize an absolute privilege covering statements or actions made by a governor within the official scope of his or her duties,” Welch wrote.
“Strong public policy arguments exist for and against such an extension of the absolute privilege doctrine,” Welch wrote. “This judge favors the arguments against extending the absolute privilege so broadly. Ultimately, however, such an important policy determination must be in the hands of the SJC or the Legislature. I decline this invitation to broaden the absolute privilege.”
Recent developments in the case were first reported by the Salem News.
The lawsuit was filed by Saundra Edwards, a former prosecutor whom Patrick had appointed chairwoman of the Sex Offender Registry Board.
Her lawsuit targets both the governor for defamation and the state for wrongful termination, claiming that her ouster was the result of the governor’s “wrongful, personal interest in retaliating against, and punishing” her.
Edwards is seeking compensation including three times her lost wages and benefits and attorneys’ fees.
Lawyers for Patrick filed a notice of their intent to appeal the judge’s decision, and they are seeking a stay in the case that would halt proceedings until they can get a ruling.
Patrick, now a managing director at Bain Capital handling investments with social and environmental impact, did not respond to requests for comment. Neither did his attorney, Michael Pineault.
Edwards’s attorney balked at Patrick’s arguments, saying governors in Massachusetts do not enjoy protection from defamation lawsuits. A win for Patrick, he said, would mean that a governor could never be sued, even for false statements.
Absolute privilege would mean that the governor “can say anything about anyone,” said William Sheehan. “It can be dead wrong. He can know it’s wrong. Basically, it is a license to defame.”
The case stems from one of the ugliest stories that emerged during Patrick’s time in Massachusetts politics and prompted another lawsuit to be settled by the state.
The Boston Herald reported during Patrick’s 2006 election campaign that Patrick’s brother-in-law had failed to register as a sex offender in Massachusetts for his California conviction for raping his estranged wife, the sister of the former governor.
The brother-in-law, Bernard Sigh, had pleaded guilty to spousal rape in 1993 and served time in jail and on probation in California. He reconciled with Patrick’s sister in 1995 and later moved to Massachusetts.
After the news reports, Sigh challenged his requirement to register as a sex offender. A hearing officer, A.J. Paglia, determined that he was not obligated to register in Massachusetts.
Though the Sex Offender Registry Board’s lawyer maintained that the California charge of “spousal rape” was the equivalent of the Massachusetts charge of rape — a sexually violent offense that would require lifelong registration as a sex offender — Paglia determined that under Massachusetts statute, it equated with indecent assault and battery.
The board’s lawyer had ordered Paglia to hold off on a decision while the board sought the opinion of the attorney general’s office. But Paglia held the hearing and issued his decision. He was reprimanded for insubordination and demoted.
In 2008, Paglia filed a whistle-blower suit in Suffolk Superior Court, documenting messages in which his supervisors had tried to influence him to change his decision and claiming they had retaliated against him in his job for failing to do so.
In an odd twist, the whistle-blower in this case claimed the administration was pressuring him to crack down on the governor’s relative, rather than relieve him of responsibility.
Edwards, who had been appointed chairwoman of the board in late 2007, was among those Paglia sued for pressuring him.
It was only after Paglia settled his lawsuit with the state — claiming a $60,000 settlement — that Patrick ousted Edwards from the board.
Patrick faulted her for fostering an unproductive work environment and pointed to a December 2013 Supreme Judicial Court ruling that found the Sex Offender Registry Board had not updated its regulations since 2002.
But he also explicitly cited the claims made in Paglia’s lawsuit among his reasons for firing Edwards.
“The final straw was the settlement of a lawsuit,” Patrick told the media then, “that involved some inappropriate, at least, maybe unlawful, pressuring by the chair and the executive director of a hearing officer to change the outcome of a case. The hearing officer did not ultimately do that.’’
“It turns out that case is the case that arose out of my brother-in-law’s experience way back at the beginning of the first campaign when the Republican Party, sorry to say aided by the Herald, nearly destroyed their lives,” Patrick added.
Edwards filed suit just days before Patrick left office in January 2015, alleging that the governor’s comments about her were defamatory and made with malice. She claims she was merely trying to correct what she viewed as a mistake — a downgrade in the seriousness of domestic rape — and that “spousal rape is rape.”
She was not made available for an interview by her attorneys.
In dismissing the Commonwealth’s motion to dismiss the case against Patrick in March, the judge referred back to the governor’s own comments, saying they showed that the case involving Patrick’s brother-in-law “played a substantial part in the alleged retaliatory action.”
The Commonwealth is being represented in the case by a special assistant attorney general because the attorney general’s office previously defended the Sex Offender Registry Board in the Paglia suit.
It’s unclear whether the former governor is paying the bill to fight the lawsuit personally.