Of­fi­cials: Dis­miss Dug­gar law­suit

Northwest Arkansas Democrat-Gazette - - NORTHWEST ARKANSAS - RON WOOD

FAYET­TEVILLE — Spring­dale of­fi­cials have asked a judge to throw out a fed­eral law­suit over the re­lease of doc­u­ments ar­gu­ing they have im­mu­nity and claim­ing the law­suit fails to state a claim.

Four daugh­ters of the Jim Bob Dug­gar fam­ily sued North­west Ar­kan­sas of­fi­cials in May, claim­ing they im­prop­erly re­leased po­lice in­ves­ti­ga­tion doc­u­ments to a celebrity mag­a­zine, which pub­lished the in­for­ma­tion. The in­ves­ti­ga­tion de­ter­mined Josh Dug­gar fon­dled the girls and at least one other girl. The statute of lim­i­ta­tions had run and no charges were filed.

The sis­ters’ law­suit was filed in fed­eral court in Fayet­teville. Claims in­clude in­va­sion of pri­vacy, out­rage and vi­o­la­tion of the right to due process. The law­suit seeks un­spec­i­fied com­pen­satory and puni­tive dam­ages to be de­ter­mined at trial.

The daugh­ters are Jill Dil­lard, Jessa See­wald, Jinger Vuolo and Joy Dug­gar.

De­fen­dants in­clude Spring­dale, Wash­ing­ton County, for­mer Spring­dale Po­lice Chief Kathy O’Kel­ley, Spring­dale

City At­tor­ney Ernest Cate, Maj. Rick Hoyt with the Wash­ing­ton County Sher­iff’s Of­fice, for­mer Wash­ing­ton County At­tor­ney Steve Zega and Bauer Me­dia Group, which pub­lished In Touch Weekly mag­a­zine and re­lated so­cial me­dia sites. The law­suit also lists 10 uniden­ti­fied “Doe” de­fen­dants, be­lieved to be em­ploy­ees of the de­fen­dants.

The mo­tion to dis­miss was filed on be­half of O’Kel­ley, Cate and Spring­dale, col­lec­tively re­ferred to as the Spring­dale de­fen­dants. It con­tends O’Kel­ley and Cate are en­ti­tled to qual­i­fied and statu­tory im­mu­nity from be­ing sued.

“In their com­plaint against the Spring­dale de­fen­dants the plain­tiffs use such turns of phrase as “con­trary to the bounds of hu­man de­cency” and “ba­sic no­tions of ci­vil­ity and per­sonal dig­nity” and “hor­ri­ble and bla­tant re-vic­tim­iza­tion” in or­der to ad­vance claims for dam­ages,” ac­cord­ing to a brief. “The al­le­ga­tions of fact in the com­plaint, rather than the hy­per­bolic turns of phrase, are as­sumed to be true at this stage, yet a close ex­am­i­na­tion of the al­leged facts re­veals that in­di­vid­ual Spring­dale de­fen­dants acted not out­ra­geously, but well within the pro­tec­tion pro­vided by the doc­trine of qual­i­fied im­mu­nity.”

The mo­tion ar­gues the law­suit fails to make a con­sti­tu­tional claim against the city and fails to al­lege in­ten­tional con­duct on the part of the de­fen­dants as re­quired for tort claims. A tort is an act in­jur­ing some­one and the in­jured per­son may sue the wrong­doer for dam­ages.

“Be­cause there are sub­stan­tial le­gal doubts as to whether Cate and O’Kel­ley vi­o­lated a con­sti­tu­tional right, and even more doubts as to whether their ac­tions vi­o­lated clearly es­tab­lished law, the claims against them should be dis­missed,” the mo­tion says. “Fur­ther, such al­le­ga­tions are de­fi­cient to es­tab­lish li­a­bil­ity un­der the tort the­o­ries claimed by the plain­tiffs and should be dis­missed for fail­ure to state a claim. Lastly, the in­di­vid­u­als are en­ti­tled to tort im­mu­nity from all claims.”

The Spring­dale de­fen­dants also want all pre­trial pro­ceed­ings in the case put on hold un­til a judge re­solves the statu­tory

and qual­i­fied im­mu­nity is­sues and to al­low time for any sub­se­quent ap­peals.

“The Supreme Court has ‘stressed the im­por­tance of re­solv­ing im­mu­nity ques­tions at the ear­li­est pos­si­ble stage in lit­i­ga­tion,’” ac­cord­ing to a sup­port­ing brief. “One of the pur­poses of im­mu­nity, ab­so­lute or qual­i­fied, is to spare a de­fen­dant not only un­war­ranted li­a­bil­ity, but un­war­ranted de­mands cus­tom­ar­ily im­posed upon those de­fend­ing a long drawn out law­suit.”

The sis­ters al­lege the of­fi­cials re­leased doc­u­ments to In Touch un­der a Free­dom of In­for­ma­tion Act re­quest in vi­o­la­tion of state laws pro­hibit­ing re­leas­ing such in­for­ma­tion to pro­tect ju­ve­niles and vic­tims of sex­ual abuse. In Touch pub­lished the in­for­ma­tion — de­spite a judge’s or­der to seal the doc­u­ments — for fi­nan­cial gain and to em­bar­rass the Dug­gars, ac­cord­ing to the law­suits.

O’Kel­ley and Cate im­prop­erly de­cided the of­fense re­port should be re­leased to the pub­lic, the law­suit claims. They claim O’Kel­ley and Cate su­per­vised the Po­lice Depart­ment’s redac­tion and re­lease of the of­fense re­port in vi­o­la­tion of the Ar­kan­sas ju­ve­nile code, the Ar­kan­sas code and the Ar­kan­sas and U.S. con­sti­tu­tions.

The Dug­gars were on the TLC cable chan­nel show “19 Kids and Count­ing,” which drew 3.6 mil­lion view­ers as re­cently as May 2015. Re­runs

of the show were pulled after In Touch re­leased a re­port May 21, 2015, that the fam­ily’s old­est child, Josh, had been the sub­ject of a Spring­dale po­lice in­ves­ti­ga­tion that he fon­dled young girls in his home. TLC later can­celed the show.

Dug­gar, then 14, re­vealed in March 2002 to his par­ents he had run his hands over young girls in the fam­ily home as they slept, the par­ents said in an in­ter­view aired June 3, 2015, by Fox News. The par­ents told the girls, dis­ci­plined their son and took pre­cau­tions, but didn’t seek out­side as­sis­tance, Jim Bob and Michelle Dug­gar said.

“Plain­tiffs en­dured harsh and un­war­ranted pub­lic scru­tiny,” the sis­ters’ law­suit al­leges. “De­fen­dants’ ac­tions forced plain­tiffs to re­live painful mem­o­ries and ex­pe­ri­ences that oc­curred al­most ten years prior, re­sult­ing in plain­tiffs suf­fer­ing se­vere men­tal an­guish and dis­tress,” ac­cord­ing to the law­suit.

The suit asks a judge to or­der In Touch to hand over profit it made by com­mer­cially ex­ploit­ing the sit­u­a­tion and or­der them to stop pub­lish­ing the iden­ti­fy­ing in­for­ma­tion.

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