Clark v. Jenkins

• Decision Date: 22 February 2008
• Docket Number: No. 07-06-0385-CV.,07-06-0385-CV.
• Citation: 248 S.W.3d 418
• Parties: Paul Martin CLARK and Black Citizens for Justice, Law and Order, Inc., Appellants, v. Gladys Elaine Blanton JENKINS, Appellee.
• Court: Texas Court of Appeals

248 S.W.3d 418

Paul Martin CLARK and Black Citizens for Justice, Law and Order, Inc., Appellants, v. Gladys Elaine Blanton JENKINS, Appellee.

No. 07-06-0385-CV.

Court of Appeals of Texas, Amarillo.

February 22, 2008.

Rehearing Overruled April 3, 2008.

Chad E. Baruch, Law Office of Chad Baruch, Rowlett, Kent W. Starr, Starr & Associates, PC, Eliot D. Shavin, Law Office of Eliot Shavin, Dallas, TX, for Appellant.

Shelli Morrison, Attorney At Law, Athens, E. Leon Carter, Attorney At Law, Susan Hays, Law Office of Susan Hays, P.C., Dallas, TX, for Appellee.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

PATRICK A. PIRTLE, Justice.

Appellants, Paul Martin Clark and Black Citizens For Justice, Law and Order, Inc. (BCJLO), appeal from a judgment rendered in favor of Appellee, Gladys Elaine Blanton Jenkins, in a libel action. By a sole issue, Clark and BCJLO assert the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict because: (1) the defamatory statements about Jenkins were made in a written request for governmental action, making actual malice an essential element of her claim, and the evidence was insufficient to establish actual malice, (2) their statements were absolutely privileged because they were made in a petition for redress pursuant to the Texas Constitution, and (3) there was an absence of any finding and/or evidence in support of a presumed finding their petition was a "sham" or was made in bad faith. We affirm.

Background

Jenkins,¹ a member of the Athens City Council, filed an action for libel based upon statements made in a memorandum (hereinafter the "Clark Memorandum") authored by Clark, BCJLO's President. The Clark Memorandum was addressed and published to Daisy Evella Joe, BCJLO's Chief Executive Officer, the Honorable Pete Sessions, United States Representative, and the United States Department of Justice (DOJ), Civil Rights Division. The Clark Memorandum was subsequently published to the Mayor of Athens, its City Council, the City Administrator, and Police Chief. The existence of the Clark Memorandum and its contents were generally known in Athens.

BCJLO was originally incorporated in 1969 in response to incidents involving black citizens and police officers in the Dallas metropolitan area. BCJLO's initial purpose was to bring citizen complaints against the Dallas police to the attention of the proper authorities. Over the years, BCJLO's purpose has evolved to include assisting persons in pursuing claims before the Equal Employment Opportunity Commission.

Joe became BCJLO's volunteer director in 1982 and subsequently, CEO.² Clark became BCJLO's President of Membership in 2002-03. He had received training and certification as a federal records management officer at the National Archives located in Washington, D.C. At the National Archives, Clark was taught to simply record an event through note-taking without filtering what was said. Joe testified at trial that Clark had a knack for notating meetings in a very detailed manner — writing down every "and," "the," and "that."

In the mid-nineties, tension existed between North Athens' black citizens and the Athens Police Department. DOJ's Civil Rights Division assisted the parties in developing an agreement designed to open lines of communication between the Athens Police Department and the North Athens community. In 1999, a Memorandum Agreement was entered into between Athens Police Chief, the NAACP, and an organization known as the Concerned Citizens of North Athens (CCNA). A Citizens Advisory Committee was created to meet on a regular basis with the Athens Police Chief to discuss problems and issues. If necessary, these issues and problems would be brought to the attention of the City Council. The Texas Rangers also offered their assistance by investigating citizens' complaints of harassment and intimidation. From 1999 until 2006, there were six complaints filed with the Citizens Advisory Committee.

In mid-2001, Joe began receiving calls from black residents in Athens including Barbara Bowman and Fred Burke. Bowman and Burke were CCNA members and, subsequently, became BCJLO members. Bowman and Burke complained of intimidation and harassment by the Athens Police Department and wanted BCJLO's assistance because they believed they did not have a voice in Athens. Joe received so many calls from Athens' citizens she was hesitant to get involved. Subsequently, they started calling in on Joe's radio show, Worker's Beat, on KNON, with complaints related to the Athens Police Department. Bowman and others called Joe's radio show complaining that a pregnant woman was taken to jail, underwent a miscarriage, and was refused medical attention. Joe found the story hard to believe. She suggested they compile their information and submit their complaints to the authorities.

In the Fall of 2002, Pam Burton, Athens City Administrator, received letters from Joe Baggett, President of the NAACP's local chapter, and Mickey Williams of the CCNA asking to appear before the City Council to discuss the Memorandum Agreement. The agreement had expired and a new Athens Police Chief, Jim Vance, was replacing the current Chief who was a signatory to the Memorandum Agreement. Burton placed discussion of the agreement on the City Council's agenda. She also sent Baggett a letter, with a copy to Williams, indicating the City Council would be discussing the agreement at a regularly scheduled workshop to be held before the City Council meeting scheduled for November 20, 2002. Burton's letter invited them to attend and encouraged them to invite other interested parties.

CCNA members faxed Joe a letter related to the workshop and asked Joe to approach Congressman Sessions. Joe indicated she would send someone to the meeting to take notes on their concerns and then turn the information over to Sessions. Because Joe was unable to attend the meeting personally, she asked Clark to attend. Clark was to meet Reverend Stovall, Pastor of the Camp Wisdom United Methodist Church of Dallas, in Athens, and accompany him to the meeting.

Bowman, Stovall, Clark, and others attended the City Council workshop to discuss the agreement. Mayor King, the City Council members, and Burton were also present. Jenkins attended the meeting in her capacity as a City Council member.

After the Council meeting, Bowman, Stovall, Clark, and other attendees convened at the house of a CCNA member to discuss their concerns. Clark took notes during this after-meeting. The meeting lasted approximately twenty minutes. Bowman told Clark that Jenkins was controlled by Mayor King and that she was ineffective and failed to communicate the concerns of the citizens of North Athens to the City Council.³ Joe instructed Clark to take down their complaints and draft a memorandum that would prompt an investigation by Congressman Sessions and DOJ's Civil Rights Division.

Clark drove home that night, and the next morning he delivered his memorandum to Joe. Joe testified she prepared a cover page,⁴ and the Clark Memorandum was delivered to a staff member at Sessions's office. The Clark Memorandum was also mailed to DOJ's Civil Rights Division. Although it was Joe's practice to scan such a memorandum before it was sent, she only glanced at the Clark Memorandum and did not notice the criminal allegations related to Jenkins.

In paragraph four of the Clark Memorandum, the following statement was made regarding Jenkins:

The only black female Athens City Council member is Gladys Elaine Blanton Jenkins. She is a convicted felon having served time in Texas and California for Prostitution and Drugs. She is controlled by Mayor Jerry King. No one in the State of Texas can hold elective office who has felony convictions. She must be removed from office immediately.

See Appendix for full text of the Clark Memorandum.

Joe was unconcerned whether the statements in the Clark Memorandum were true or false. Neither Clark, Joe, nor BCJLO performed any investigation to determine the validity of any factual statements contained in the memorandum including the criminal allegations against Jenkins.⁵ Joe agreed the memorandum's statements regarding Jenkins were "very defamatory," "horrible," and she "wouldn't want them published about anyone." She also believed the contents of the memorandum were confidential and she was relying on Sessions and the DOJ to determine whether the statements made were true.

Clark did not appear at trial, but testified by deposition. He indicated he had no belief or disbelief as to the truth of the memorandum's contents. He did not know Jenkins and had no belief as to the statements he made about her. He did not know the people who attended the Council meeting and after-meeting, and had no baseline for the veracity of their statements. He stated he recorded the information the attendees supplied to him. He indicated, however, he did not believe the statement in his memorandum that "[t]he Athens Police intimidate, harass and murder black residents on a daily basis." If it was the case, he stated he would have heard about it on television or in a newspaper.

After receiving the Clark Memorandum, Congressman Sessions attempted to learn if there was any truth to the allegation tying Charles Hawn, Sessions's only staff member in the Athens office, to the Ku Klux Klan.⁶ Hawn received a call from a Dallas staff member asking if he had seen the Clark Memorandum. Sessions's Dallas office faxed the memorandum to Hawn for comment. Hawn indicated he had no association or knowledge of the BCJLO, Joe, or Clark. He had also never received any complaints from North Athens citizens about a pattern, or instance, of murder or intimidation of black residents by Athens police. He stated he absolutely had no ties to the Ku Klux Klan.

Sessions's office subsequently mailed the original Clark Memorandum to Mayor King and faxed him a copy for his comments. King...