Dean v. Dearing

• Decision Date: 19 April 2002
• Docket Number: Record No. 011154.
• Citation: 263 Va. 485,561 S.E.2d 686
• Court: Virginia Supreme Court
• Parties: Donald A. DEAN, Jr. v. M. Lee DEARING.

561 S.E.2d 686

263 Va. 485

Donald A. DEAN, Jr. v. M. Lee DEARING.

Record No. 011154.

Supreme Court of Virginia.

April 19, 2002.

William W. Helsey (A. Gene Hart, on briefs), Harrisonburg, for appellant.

David P. Corrigan (Michelle P. Wiltshire, Richmond; Harman, Claytor, Corrigan & Wellman, on brief), for appellee.

Present: All the Justices.

LACY, Justice.

In this case, we are asked to determine whether a public official can use the "small group theory" to meet the "of and concerning" element of a claim for defamation.

Following his confrontation with and arrest by the Elkton chief of police, M. Lee Dearing, the mayor of Elkton, made a number of statements alleging corruption, dishonesty, and felonious conduct by the Elkton police department. From February through November 1999, Dearing accused the police department of intimidating witnesses, stealing property, harassment, misappropriation of money, and improperly disposing of drug and gun evidence. These statements were published in newspapers serving the Elkton community. At that time, the Elkton police department had from five to eight members.

Donald A. Dean, Jr., a member of the Elkton police force, instituted this defamation action against Dearing on the basis of these statements, seeking compensatory and punitive damages. Dearing filed a demurrer asserting that the motion for judgment did not state a cause of action for defamation because, inter alia, the complained of statements referred to conduct of the Elton police force and were not "of and concerning" Dean specifically. In response, Dean, relying on Ewell v. Boutwell, 138 Va. 402, 121 S.E. 912 (1924), asserted that he met the "of and concerning" element through the application of the "small group theory."

The trial court sustained Dearing's demurrer and dismissed the motion for judgment, holding that under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the "small group theory" cannot be used to satisfy the "of and concerning" element of defamation when such defamation is directed at a governmental group. The trial court also concluded that the statements at issue referred to conduct by the Elkton police department rather than Dean's conduct and therefore Dean had not pled a cause of action for defamation.¹ We awarded Dean an appeal and for the following reasons, we will affirm the judgment of the trial court.

To prevail in a defamation cause of action, a plaintiff must establish that the alleged defamatory statements published were "of or concerning" him. The Gazette, Inc. v. Harris, 229 Va. 1, 37, 325 S.E.2d 713, 738 (1985). The exception to this general rule, recognized in Ewell v. Bautwell, was that if the defamatory language is directed towards "a comparatively small group of persons... and is so framed as to make defamatory imputations against all members of the small or restricted group, any member thereof may sue." 138 Va. at 411, 121 S.E. at 914. Under this "small group theory" exception, a member of a small group need not show that the allegedly defamatory statements were directed specifically at the member bringing the action to satisfy the "of and concerning" element of common law defamation.

The continued viability of this exception has been called into question when the small group is a governmental agency. In New York Times v. Sullivan, the United States Supreme Court considered a defamation action brought by a city commissioner who supervised the police department based on conduct ascribed to the police force in a newspaper advertisement. The Alabama Supreme Court concluded that the "of and concerning" requirement was satisfied based on the "common knowledge" that a police commissioner was responsible for the actions of the police department, even though the police commissioner was not implicated by name or office in the offending advertisement. New York Times, 376 U.S. at 263, 84 S.Ct. 710. The United States Supreme Court opined that references to the "police" or the "Police Department" could not be considered personal criticism of the police commissioner, even if evidence was produced that some readers understood that the police commissioner was ultimately responsible for the police department and the alleged defamation, therefore, necessarily referenced the police commissioner. Id. at 289-90, 84 S.Ct. 710. Thus, the Supreme Court rejected the holding of the Alabama Supreme Court that the "of and concerning" element of a common law defamation action was met. Id. at 288, 84 S.Ct. 710.

Central to the Supreme Court's decision was the principle that prosecutions for libel of government have no place in American jurisprudence. Id. at 291-92, 84 S.Ct. 710. The Supreme Court reasoned that to read a general reference to the police force as a reference to a specific person "would sidestep" this principle by "transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed." Id. at 292, 84 S.Ct. 710. Such a proposition "strikes at the very center of the constitutionally protected area of free expression." Id. Thus, the" Supreme Court concluded that "such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations." Id.

New York Times v. Sullivan did not specifically address the "small group theory" but it did establish that a reference to a governmental group cannot be treated as an implicit reference to a specific individual even if that individual is understood generally to be responsible for the actions of the...