Wisconsin Town Lawyer Lies To Journalist, Sues Activist Who Pointed Out His Lie

Bogus lawsuits are a form of bullying. (Hence the need for a federal anti-SLAPP law.) Some lawsuits are merely frivolous, filed by people who have no idea how the law works. Others, like this one, are filed solely to silence critics and remind them who actually has the power in this relationship.

That's what has happened in Mount Pleasant, Wisconsin. The town's lawyer, Chris Smith, has sued a resident for pointing out the lie he told local journalist, Diana Panuncial. Panuncial covered the Mt. Pleasant Village Board's decision to extend trustees' terms from two years to three years. Her article for The Journal Times featured a quote from the town's attorney, in which he stated the term extensions had been discussed multiple times in public meetings over the last four years.

It's very important that everyone understand, even though it was said very clearly, numerous times and at the open public meetings, this does not in any way, shape or form, affect the term of anyone who's currently on the board," Village Attorney Chris Smith said.

This change was first formerly brought to the board in April 2021, though discussion of it began back in 2018, according to Smith.

Smith's claim didn't sound accurate to Kelly Gallaher, an activist who heads A Better Mt. Pleasant, a local watchdog group. Gallaher routinely attends or watches public meetings and didn't recall any previous discussions of the term extensions. She searched the town archives for previous discussions of term extensions by the board but couldn't find anything. She directly emailed the man who had made the claim - town attorney Chris Smith - to see if he had any information about these years of open, public discussion.

Here's how that went, according to Gallaher's motion to dismiss [PDF]:

To clear things up, Kelly e-mailed Village Attorney Smith about his quote in the Journal Times on February 22 and asked him to provide her with the agendas in which the Village Board (or the Committee of [the] Whole) discussed and/or debated extending the length of terms in office for public officials from January 2020 until the present."

On February 23, Village Attorney Smith responded that during that time frame the term extension was discussed at the Committee of the Whole on 4/19/21," as well as at meetings on January 10 and 24 of 2022 and attached the agendas for all three meetings. Kelly wrote back the same day that the April 2021 meeting agenda doesn't really inform residents that longer terms for village officials was being considered-there is no agenda item which specifically refers to term lengths," and expanded her request to ask for all other agendas in which longer terms for village officials were specifically discussed and/or debated from January 2018 through April of 2021."

All told, she had now requested meeting agendas discussing the term extension from 2018 through the present-the entire period in which Village Attorney Smith told the Journal Times that the change had been discussed. After Kelly followed up a week later, Village Attorney Smith admitted in a one-sentence email that: This subject matter was not discussed at a public meeting within that timeframe, other than the 4/19/21 meeting previously discussed."

Following this admission, Gallaher emailed the Journal Times and pointed out the statements made by Smith in the paper's article weren't true, providing the Journal Times with a copy of her correspondence with the town attorney. She posted the same information to her organization's social media pages, pointing out that the Village Attorney lied to The Journal Times" about term length discussions.

This made the town attorney angry. He sued [PDF] Gallaher for calling him a liar, claiming her posts to Facebook and Twitter referencing his lie to local journalists were defamatory. He also claimed Gallaher's email to the Journal Times (making the same allegations about Smith's statement to the paper) was defamatory. He proceeded with this lawsuit despite obtaining a retraction and an apology from Gallaher following his initial legal threat.

This may have seemed like an easy win for the attorney who didn't like a local activist pointing out his lie to a local journalist. But the Institute for Justice has stepped in and it looks like the town attorney is completely in the wrong, if not completely overmatched.

The IJ points out there was nothing reckless about Gallaher's assertions about the truthfulness (or lack thereof) of Smith's statements to the Journal Times. In fact, there was nothing actionably false about her statements about Smith's statements.

To be sure, [Smith's lawsuit] alleges that Kelly did not like her current government and that she had created hundreds of posts on social media" that portray[] Mount Pleasant Village officials or employees negatively." But it does not allege that Kelly knew her statements was false, or even that she should have known they were false.

Nor could it have. Indeed, the very email that the Complaint claims was defamatory makes clear that Kelly was anything but reckless. Kelly's email to the Journal Times reporters included her correspondence with the village attorney where she asked for records that could substantiate his quote in the Journal Times article. That same email made clear that she had tried to find these records on her own by search[ing] the village archives" with no luck. She followed up with Village Attorney Smith a week later. It was only after Village Attorney Smith admitted, without further explanation, that extending trustee term lengths had not been discussed at a public meeting" in 2018 or at any time before April 2021 that Kelly contacted the Journal Times and made her social media posts. In other words, Kelly did research, gave Village Attorney Smith ample opportunities to substantiate his quote, and waited until he appeared to confirm that his quote was false to say anything. Far from showing that Kelly knew her statements to be false or that she acted recklessly, the very statements that the Complaint alleges were defamatory show that Kelly had every reason to believe that what she was saying was true.

Even if Smith meant that there had been discussions residents weren't privy to, that wasn't made clear in his comments to the press. His admission to Gallaher that nothing had been publicly discussed until April 2021 allowed her to draw her own conclusions. Because of that, Smith is suing over two opinions and one factual statement by Gallaher. And that doesn't add up to defamation.

In other words, the allegedly defamatory statements make clear that (1) Kelly believed Village Attorney Smith's quote should be interpreted as a claim that there were public discussions of the term limit change as early as 2018; (2) there were no public discussions of the term limit change as early as 2018; and (3) Village Attorney Smith was therefore a liar. Of these three points, only the second is factual-and that one, as far as the Complaint reveals, is perfectly true. The other two are pure statements of opinion based on disclosed facts: Kelly offered her interpretation of a public statement by Village Attorney Smith and her opinion that people who say false things in public are lying.

It doesn't matter how Smith views these statements. It matters how the court will view these statements. And it's extremely unlikely the court is going to side with Smith's subjective beliefs.

Village Attorney Smith is, of course, entitled to have a different opinion. He may well believe that the best interpretation of his quote was that discussions of the term-limit change had been held in secret rather than in public and that it is therefore unfair to say he lied. But these differences of opinion do not give rise to a defamation claim under Wisconsin law.

As a town official, Smith had plenty of options that would have been less disastrous - and less thuggish - than suing a resident for arriving at a very logical conclusion. He could have issued a statement clarifying his comments to the Journal Times. He could have said he was mistaken about previous discussions. He could have been the adult in the room, so to speak. But he chose to sue. Even if he somehow manages to survive this motion to dismiss, it's not going to rehabilitate his image. And it's not going to convince a town that has been repeatedly abused by its representation that he's trustworthy. All this lawsuit does is expose him as someone who can't handle honest criticism about perceived dishonesty.