Maine’s supreme court rules in favor of Washington County sheriff in slander suit

Posted Dec. 21, 2011, at 5:31 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court on Tuesday unanimously upheld a lower court’s decision to toss out a slander suit filed against Washington County Sheriff Donnie Smith.

The justices found Smith was immune from the lawsuit because the sheriff acted in his capacity as an elected official when he ended the department’s relationship with the Maine Drug Enforcement Agency and criticized the off-duty behavior of agent Larry W. Hilderbrand II, who was shown on a DVD flashing his MDEA badge and apparently drinking.

“Smith’s immunity from liability for his public comments may be broader than that of many government employees because of the broad course and scope of his job,” Justice Ellen Gorman wrote for the court. “As an elected official, Smith’s employment responsibilities include publicly explaining his policy decisions. His public explanation of his change in policy was an integral part of the change itself, and we are unable to separate the two.”

The court heard oral arguments in the case last month when it convened at the Penobscot Judicial Center in Bangor.

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Smith said Wednesday that he was pleased with the decision but also still a bit troubled by what led to it.

“What I think is sad is that the court had to do what the state should have done — review the DVD and seen it for what it was,” he said Wednesday in a telephone interview. “It’s too bad it had to come to this.”

Efforts to reach Hilderbrand’s attorney, Charles March of Portland, on Wednesday were unsuccessful.

Hilderbrand, of Perry, is a Pleasant Point police officer who was on loan to the MDEA when Smith made public comments about the officer’s behavior captured on video in 2006. The DVD showed Hilderbrand off duty in a car with other people.

It shows the officer flash his MDEA badge at the camera, then drink beer from a large mug that had “police officer” printed on it. Hilderbrand then turned to the camera and said: “This is a public safety announcement from Maine Drug Enforcement. Drink responsibly.”

Smith, who has said he does not know who left the DVD in his mailbox, publicly and harshly criticized Hilderbrand’s behavior. The sheriff did not identify him by name but ordered his staff in February 2008 not to work with the MDEA. The sheriff rescinded the decision three days later when he learned that then-Public Safety Commissioner Anne Jordan was familiar with what was depicted on the DVD, the Maine Attorney General’s Office had reviewed it and that Hilderbrand had been disciplined but not charged with a crime or a civil violation over it.

Hilderbrand sued the Washington County commissioners and Smith in February 2010 in Washington County Superior Court for slander and invasion of privacy. In March 2011, Superior Court Justice Kevin Cuddy granted summary judgment to the commissioners and Smith.

March appealed the decision to the state supreme court concerning Smith but did not appeal Cuddy’s ruling in the commissioners’ favor.

“Sheriff Smith’s intentional, strident, defamatory media statements were not essential to the realization of a governmental objective and would not and did not change the direction of any government policy, program or objective,” March argued to the justices.

That is one of the tests to determine if an official’s statements or actions are immune from civil actions, he said.

Cassandra Shaffer, the Waterville attorney representing Smith, argued that the context of the sheriff’s statements established that he has immunity.

“He’s commissioned by the citizens of Washington County to explain why he does what he does,” she said.

In this case, Smith was explaining through the media why he told his officers not to work with the MDEA, Shaffer said.

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