Zervos v. Trump

• Decision Date: 14 March 2019
• Docket Number: Index 150522/17,7610
• Citation: 94 N.Y.S.3d 75
• Parties: Summer ZERVOS, Plaintiff–Respondent v. Donald J. TRUMP, Defendant–Appellant. Law Professors, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

94 N.Y.S.3d 75

Summer ZERVOS, Plaintiff–Respondent
v.
Donald J. TRUMP, Defendant–Appellant.

Law Professors, Amici Curiae.

7610
Index 150522/17

Supreme Court, Appellate Division, First Department, New York.

ENTERED: MARCH 14, 2019

Kasowitz Benson Torres LLP, New York (Marc E. Kasowitz, Christine A. Montenegro and Paul J. Burgo of counsel), for appellant.

Cuti Hecker Wang LLP, New York (Mariann Meier Wang, John Cuti, Eric Hecker, Daniel Mullkoff and Heather Gregorio of counsel), for respondent.

Ropes & Gray LLP, New York (Robert S. Fischler, Patrick J. Reinikainen, Elizabeth Bierut and Nicholas C. Spar of counsel), for amici curiae.

Dianne T. Renwick, J.P., Peter Tom, Angela M. Mazzarelli, Troy K. Webber, Cynthia S. Kern, JJ.

RENWICK, J.P.

This case raises a constitutional issue of first impression: whether the Supremacy Clause of the United States Constitution requires a state court to defer litigation of a defamation action against a sitting President until his terms end.

Two decades ago, in Clinton v. Jones , 520 U.S. 681, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997), the United States Supreme Court rejected the then-sitting President's attempt to shield himself from alleged unofficial misconduct by relying upon the constitutional protection of the Presidency. Specifically, the Supreme Court found that the Separation of Powers doctrine of the

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United States Constitution did not afford President Clinton temporary immunity from civil damages litigation, in federal court, arising out of events that occurred before he took office. The Court determined that a federal court's exercise of its constitutional authority to decide cases and controversies did not encroach upon the exercise of the executive powers of the President.

More than 20 years later, the current sitting President attempts to shield himself from consequences for his alleged unofficial misconduct by relying upon the constitutional protection of the Presidency. We reject defendant President Trump's argument that the Supremacy Clause of the United States Constitution prevents a New York State court—and every other state court in the country—from exercising its authority under its state constitution. Instead, we find that the Supremacy Clause was never intended to deprive a state court of its authority to decide cases and controversies under the state's constitution.

As more fully explained below, the Supremacy Clause provides that federal law supersedes state law with which it conflicts, but it does not provide that the President himself is immune from state law that does not conflict with federal law. Since there is no federal law conflicting with or displacing this defamation action, the Supremacy Clause does not provide a basis for immunizing the President from state court civil damages actions. Moreover, in the absence of a federal law limiting state court jurisdiction, state and federal courts have concurrent jurisdiction. Thus, it follows that the trial court properly exercised jurisdiction over defendant and properly denied his motion to dismiss.

The hypothetical raised by the dissent, in explaining its position, that a state court could potentially exercise direct control over the President by holding him in contempt, should not be the basis for this Court to broadly hold that a state court lacks jurisdiction over defendant at this juncture. Rather, we should not and do not make a present jurisdictional determination based on a hypothetical scenario that is highly unlikely to occur in the context of this lawsuit. In the event that, in the future, the trial court should hold defendant in contempt, the issue of whether the court has jurisdiction over the President to do so can be determined as a discrete issue. Concerns about contempt, however, should not be the underpinning for a conclusion that the Supremacy Clause renders defendant immune from this civil lawsuit while he is serving as President.

Factual and Procedural Background

This defamation lawsuit was commenced by Summer Zervos, a former contestant on the "Apprentice," a reality show starring defendant Donald Trump. Plaintiff alleges that in 2016, when defendant was a Presidential candidate, he wrongly smeared her by claiming that her allegations of sexual misconduct against him were lies.

Specifically, on October 14, 2016, plaintiff held a press conference to recount two separate incidents in which defendant had made unwanted sexual advances towards her. The first incident allegedly occurred when she met with defendant at his New York office in 2007, where he kissed her on the lips upon her arrival, and after stating that he would love to have her work for him, kissed her on the lips again as she was about to leave. The kisses made her feel "very nervous and embarrassed" and "upset."

The second encounter occurred soon thereafter. Ms. Zervos went to meet defendant for dinner at a restaurant in the Beverly Hills Hotel. Instead, she was escorted to his bungalow, where he kissed

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her "open mouthed," "grabbed her shoulder, again kissing her very aggressively, and placed his hand on her breast." After she pulled back and walked away, defendant took her hand, led her into the bedroom, and when she walked out, turned her around and suggested that they "lay down and watch some telly telly." He embraced her, and after she pushed him away, he "began to press his genitals against her, trying to kiss her again." She "attempt[ed] to make it clear that [she] was not interested" and insisted that she had come to have dinner. They had dinner, which ended abruptly when defendant stated that he needed to go to bed. Later that week, plaintiff, who was seeking a position in the Trump Organization, was offered a job at half the salary that she had been seeking. Plaintiff called defendant and told him that she "was upset, because it felt like she was being penalized for not sleeping with him." Plaintiff concluded her press statement by stating that after hearing the released audiotape and defendant's denials during the debate, "I felt that I had to speak out about your behavior. You do not have the right to treat women as sexual objects just because you are a star."

The audiotape referred to by plaintiff had been released a week earlier. On October 7, 2016, during the 2016 United States presidential election, the Washington Post published a video and accompanying article about then-presidential candidate Donald Trump and television host Billy Bush having an extremely lewd conversation about women in 2005. Trump and Bush were in a bus on their way to film an episode of Access Hollywood. In the video, defendant described his attempt to seduce a married woman and indicated he might start kissing a woman that he and Bush were about to meet. He added, "I don't even wait. And when you're a star, they let you do it. You can do anything. Grab them by the pussy. You can do anything."

Several hours after plaintiff's press conference, defendant posted on his campaign the following statement: "To be clear, I never met her at a hotel or greeted her inappropriately a decade ago. That is not who I am as a person, and it is not how I've conducted my life." Between October 14, 2016 and October 22, 2016, defendant, on Twitter, at campaign rallies, and at a presidential debate, made additional statements in response to plaintiff's allegations and other women's claims of sexual misconduct, including, "These allegations are 100% false.... They are made up, they never happened.... It's not hard to find a small handful of people willing to make false smears for personal fame, who knows maybe for financial reasons, political purposes"; "Nothing ever happened with any of these women. Totally made up nonsense to steal the election"; these were "false allegations and outright lies, in an effort to elect Hillary Clinton President.... False stories, all made-up.... All big lies"; the reports were "totally false," he "didn't know any of these women," and "didn't see these women"; and "Every woman lied when they came forward to hurt my campaign, total fabrication. The events never happened. Never. All of these liars will be sued after the election is over." He also re-tweeted statements by others, including one that had a picture of plaintiff and stated, "This is all yet another hoax."

On January 17, 2017, plaintiff commenced this action against defendant who in November 2016 had been elected President of the United States. Plaintiff alleged that the above statements by defendant were false and defamatory, and that defendant made them "knowing they were false and/or with reckless disregard for their truth or falsity." Plaintiff alleged

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that the statements about her were "defamatory per se," because "they would tend (and did) injure [her] trade, occupation or business," that "[b]eing branded a liar who came forward only for fame or at the manipulation of the Clinton campaign has been painful and demoralizing," and that as a direct result of those statements, she has suffered "both emotionally and financially." She also alleged that defendant's statements "have been deeply detrimental to [her] reputation, honor and dignity." The complaint seeks an order directing defendant to retract any and all defamatory...