Judge denies state auditor’s motion to dismiss defamation case by Ole Miss professor

by Molly Minta, Mississippi Today
September 7, 2022

A Hinds County Circuit Court judge has denied State Auditor Shad White’s motion to dismiss a defamation lawsuit brought by University of Mississippi Professor James Thomas. 

In his January 2021 motion, White alleged he could not be sued for defamation for allegations he made that Thomas, by participating in a two-day event called a “Scholar Strike,” violated state law prohibiting public employees from striking. 

White argued that as a state executive officer, he is entitled to a legal doctrine known as “absolute immunity” – the complete protection from liability for actions committed in the course of his official duties – even though he acknowledged no Mississippi court has considered the issue. 

Judge E. Faye Peterson was not persuaded, writing that Mississippi law is clear state officers have “no absolute privilege for any and all comments,” only those made during legislative, judicial and military proceedings. 

“Hence, Shad White is not entitled to absolute immunity for any and all statements which he makes as a state governmental official,” Peterson wrote in a Sept. 2 order. “That blanket theory of immunity has not been recognized by our courts, nor does it comport with the laws of this state.” 

Peterson added that “to the continued detriment” of White’s defense, Mississippi courts have found that immunity does not extend “to fraud, malice, libel, slander, defamation or any criminal offense.” 

Peterson declined to issue a declaratory judgment just yet on whether or not Thomas’ participation in the Scholar Strike actually violated state law – a key argument in his case for defamation.

Fletcher Freeman, a spokesperson for the state auditor’s office, said White and his counsel from the Mississippi attorney general’s office will “continue defense against this case.” 

“Auditor White absolutely has a right to tell people when they misspend money, which is what Thomas’ lawsuit is about,” Freeman wrote in an email. 

The lawsuit filed in December 2020 centers on White’s claims that Thomas participated in an “illegal” work stoppage on Sept. 8 and Sept. 9, 2020, and thus violated state law. White sent Thomas a letter demanding he repay $1,912 – his salary and interest – for the two days and another letter asking the University of Mississippi chancellor to consider termination. 

READ MORE: Auditor Shad White says a professor broke state law. The professor is now suing White for defamation.

Thomas’ initial complaint alleged this was defamation in part because it was false of White to claim that the Scholar Strike was illegal.

According to state code, a strike is an action taken “for the purpose of inducing, influencing or coercing a change in the conditions, compensation, rights, privileges or obligations of public employment.” 

Thomas’ participation in the Scholar Strike was intended to highlight racism and injustice in the United States, not to change his working conditions, according to the initial complaint. 

“Shad White falsely claimed that Professor Thomas violated the law against public employee strikes when it was clear to anyone who could read that he didn’t,” said Rob McDuff, an attorney with the Mississippi Center for Justice who is representing Thomas. 

White’s motion to dismiss argued that a declaratory judgment would be improper because “there are no ongoing legal relations between the parties to be clarified or settled.” Furthermore, it would “set a precedent inimical to the orderly and efficient disposition of Auditor demands.” 

“This will effectively create a need for expedited review (and potential defense) by the Attorney General of all Auditor demands referred for non-payment, regardless of whether the Attorney General may otherwise have ultimately elected not to pursue a given claim—an inefficient use of State resources,” the motion states. 

Thomas’ lawsuit does not ask for a set amount of monetary damages and says a jury should decide in the event White is found liable. 

“If the jury says he should pay one dollar, that is fine,” the complaint says. “If the jury orders payment of more money, that is fine too.” 

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.