IN THE DISTRICT COURT OF SHAWNEE COUNTY, KANSAS
DIVISION 12
EARL H. BUSEY JR., Plaintiff,
v. Case No. 01-C-626
THE BOARD OF COUNTY COMMISSIONERS
OF SHAWNEE COUNTY, KANSAS; RICHARD
ECKERT, SHAWNEE COUNTY COUNSELOR;
DICK BARTA, SHAWNEE COUNTY SHERIFF;
AND DAN BRYANT, FORMER CAPTAIN
SHAWNEE COUNTY SHERIFF’S DEPARTMENT, Defendants.
MEMORANDUM DECISION AND ORDER
The Petition in this action was originally filed by the plaintiff on May 31, 2001. The case was removed to the United States District Court for the District of Kansas on July 3, 2001. The Honorable Julie A. Robinson entered summary judgment in favor of the defendants on all of the federal claims on August 15, 2003. In her decision, Judge Robinson declined to exercise supplemental jurisdiction over the plaintiff’s state law claims. Thus, Judge Robinson remanded both the retaliatory discharge and the invasion of privacy - false light claims to the District Court of Shawnee County, Kansas.
On July 6, 2004, the case was transferred to Division 12. At that time, the Court noted that two outstanding motions for summary judgment were pending. The defendants, Board of County Commissioners of the County of Shawnee, Kansas, Sheriff Dick Barta and Dan Bryant, had filed a motion for summary judgment on January 29, 2004. Defendant Richard Eckert had filed a motion for summary judgment on February 5, 2004. Counsel for the parties have advised the Court that both summary judgment motions are deemed to be submitted for ruling.
FINDINGS OF FACT
For the purposes of deciding the summary judgment motions filed in this case, the Court makes the following findings of fact based on the uncontroverted evidence presented by the parties:
1. The Plaintiff, Earl H. Busey, Jr., joined the Shawnee County Sheriff’s Department in 1980.
2. Busey received positive performance evaluations throughout his 20-year career with the Sheriff’s Department.
3. In 1993, Dave Meneley became Sheriff of Shawnee County, Kansas.
4. Busey transferred to the narcotics unit in April of 1996.
5. In September 1996, Busey’s wife contacted Sergeant Dave Reser. According to Reser’s written report, Busey’s wife was “crying and hysterical,” and she advised him that her husband was “going Signal 4, ” a law enforcement code for a threatened suicide.
6. In response to the phone call, Reser went with another officer, Richard Grassi, to the Busey home. Grassi’s written report states that Busey answered the door and said, “I ain’t comin’ out. You ain’t comin’ in. And if you do, I’ll stuff it in your f***in’ ass.” 7. Busey’s wife returned home shortly thereafter and took Busey to Parkview Hospital to see a psychiatrist.
8. Following the domestic incident, Busey spoke to Sheriff Meneley and participated in counseling.
9. From August of 1998 until January of 2000, Defendant Dan Bryant was a Captain in charge of the narcotics unit. He retired from the Sheriff’s Department in April of 2001.
10. In December of 1998, Busey was promoted to the position of Special Services Sergeant.
11. In November or December of 1999, Sheriff Meneley (while still in office) asked Busey to locate and interview Lisa Gordon, a private citizen, regarding allegations that she had used drugs with a sheriff’s deputy, Scott Holladay, who had previously been a member of the narcotics unit. Lt. Larry Crady was present when the request was made. However, no case file was opened.
13. Busey was unable to locate Gordon and he took no further action for several months.
14. Prior to the time Busey was asked by Sheriff Meneley to interview Gordon, he had never investigated a fellow officer nor was the narcotics unit responsible for helping with internal affairs investigations.
15. On February 24, 2000, Sheriff Meneley was removed from office by the Honorable Richard D. Anderson and the Honorable Matthew J. Dowd following an ouster proceeding. One of the issues in the ouster case related to the concealment of the theft of drug evidence by sheriff’s deputies prior to the time that Busey joined the narcotics unit.
16. Busey had been called to testify during the ouster proceedings against Sheriff Meneley. His testimony included discussion of the work performed by the narcotics unit since 1996 and his identity was protected due to the nature of the work.
17. There is no evidence or contention that Busey was personally involved in the misuse of drug evidence nor has he been accused of any misconduct relating to the events leading to Sheriff Meneley’s ouster.
18. Busey has testified that immediately following Sheriff Meneley’s ouster, guards were temporarily placed in the narcotics unit, the door locks in the narcotics unit were changed, there was a delay in getting new keys, boxes were removed from the narcotics unit and the narcotics buy fund was audited. Moreover, Busey testified that he suspected that someone had gone through the contents of his desk. He has also testified that negative rumors began circulating in the Sheriff’s department regarding the narcotics unit and that his coworkers acted unfriendly towards him.
19. In March of 2000, Richard Barta was selected by the Shawnee County Republican Central Committee, and appointed by Governor Bill Graves, to fill the position
of Sheriff left vacant after Meneley’s ouster in February. Barta has testified that he sought the appointment to help remove the stigma from the Sheriff’s Department.
20. Sheriff Barta was sworn into office on March 21, 2000.
21. On April 18, 2000, after Lt. Larry Crady located an address for Lisa Gordon, he and Busey went to her home. After interviewing Gordon for 10 to 15 minutes Busey and Crady immediately went to a private home to report to former Sheriff Meneley.
22. Busey has testified that he and Crady reported the results of the interview to his former boss as a courtesy.
23. No formal report was made of the interview with Gordon.
24. On April 19, 2000, Sheriff Barta received a complaint from attorneys representing Lisa Gordon. It was alleged that Busey and Crady were conducting a “witch hunt” and that they had attempted to pressure her into claiming she had used drugs with Holladay.
25. On April 20, 2000, written reports detailing the domestic incident at Busey’s home in 1996, which had been found in non-personnel files left by former Sheriff Meneley in his office, were given to Sheriff Barta by Major Ken Pierce and Captain Dan Bryant. A note was attached from Bryant to Barta. In the note, Bryant requested that Sheriff Barta review the files “to see if you think this may be a good way to urge Earl Busey to leave or get a psych. eval.”
26. On April 21, 2000, Sheriff Barta received a call from Holladay, who asked whether he was being investigated. Sheriff Barta testified that although he was aware of
allegations of drug use by Holladay, he was not aware of any investigation and had not authorized such an investigation.
27. On April 24, 2000, Sheriff Barta requested the assistance from the Topeka Police Department to investigate Busey and Crady’s involvement in the interview of Gordon. 28. Dan Breci of the Police Department was loaned to the Sheriff’s Department to conduct the investigation.
29. During the investigation, Busey admitted that he and Crady had interviewed Gordon and that they had reported to former Sheriff Meneley immediately following the interview.
30. Sheriff Barta tentatively concluded that Busey had violated Section 42.5.5 of the Fraternal Order of Police (FOP) Contract, which provides that receipt of allegations of misconduct by a bargaining unit member must be reported to the chief steward, and General Order 87-006 of the Sheriff’s Department, which places restrictions on the communication of confidential information.
31. Sheriff Barta placed Busey and Crady on administrative leave with pay pending further evaluation.
32. Lt. Crady immediately retired from the Sheriff’s Department.
33. A Press Release regarding the action taken was faxed by the Sheriff’s Department to the local media.
34. On May 3, 2000, an article appeared in the Topeka Capital-Journal reporting that Busey had been placed on administrative leave with pay as part of an internal affairs investigation. The article quoted the Shawnee County Counselor, Richard Eckert, as saying that the officers were placed on administrative leave for reasons related to “the sheriff’s department drug scandal, but until we get the investigation done, I don’t want to say anything.”
35. On May 6, 2000, an article entitled “Counselor: Supervisors not accused of theft” appeared in the Topeka Capital-Journal. In the article, Eckert was quoted as saying that Busey and Crady were not “accused of stealing cocaine, other drugs, or money.” The article also stated: “Busey and Crady were placed on administrative leave based on a ‘chain of command problem’ which was ‘somewhat related to the ouster’ and the sheriff’s department drug scandal, said Eckert, who declined to elaborate.”
36. Busey called Sheriff Barta on several occasions to find out whether he would be able to return to work.
37. On May 17, 2001, Sheriff Barta informed Busey that he was required to undergo a psychological evaluation before he returned to work.
38. Busey expressed his displeasure with Sheriff Barta’s decision to require a psychological evaluation and stated that he “wasn’t going to play the game any longer.” Busey asked Barta if the two-week notice period could be waived so that he could retire effective May 19, 2000.
39. Sheriff Barta granted Busey’s request for waiver of the two-week notice requirement.
40. Sheriff Barta has testified that he had not yet made a final decision regarding whether Busey had actually violated General Order 87-006 or the FOP contract by the time he asked to retire.
41. On May 18, 2000, an article appeared in the Topeka Capital-Journal reporting that Busey would retire effective May 19, 2000. The article again quoted Eckert as stating that Busey was not “accused of stealing cocaine, other drugs or money” and that he had been “placed on leave based on a ‘chain of command problem’ which was ‘somewhat related to the ouster’ of former Sheriff Dave Meneley and the department drug scandal.”
42. In August of 2000, Barta defeated Meneley in the Republican primary for Shawnee County Sheriff.
43. Busey has testified that he had no political involvement with former Sheriff Meneley nor did he personally work on his campaigns for sheriff.
44. On April 27, 2001, the Kansas Supreme Court unanimously affirmed the ouster of former Sheriff Meneley.
CONCLUSIONS OF LAW
A. Summary Judgment Standard
K.S.A. 60-256(c) provides that “the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See also Kansas Supreme Court Rule 141. “The trial court is required to resolve all facts and inferences which may be reasonably drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.” Jackson v. City of Norwich, 32 Kan. App. 2d 598, 599, 85 P.3d 1259 (2004) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999)).
B. Retaliatory Discharge.
In the case of Rebarchek v. Farmers Co-op Elevator & Mercantile Ass’n, 272 Kan. 546, 562, 35 P.3d 892 (2001), the Kansas Supreme Court held “that only the employer is liable for retaliatory discharge.” In so holding, the Court found the rationale in the case of Buckner v. Atlantic Plant Maint., 182 Ill. 2d 12, 694 N.E.2d 565 (1998), to be “very persuasive” and declined to impose liability on a supervisor. 272 Kan. at 562. In Buckner, the Illinois Supreme Court found that “the power to hire and fire employees is ultimately
possessed only by the employer. Consequently, the tort of retaliatory discharge may be committed only by the employer.” 182 Ill. 2d at 21-22.
It is uncontroverted that at the time of the plaintiff’s retirement, his employer was Sheriff Richard Barta. In the case of Board of Lincoln County Commissioners v. Nielander 275 Kan. 257, 62 P.3d, 247 (2003), the Kansas Supreme Court held that a “sheriff is an independently elected officer whose office, duties, and authorities are established and delegated by the legislature. The sheriff is not a subordinate of the board of county commissioners and neither are the undersheriff or the sheriff’s deputies and assistants.” 275 Kan. at 261. Further, the Court held that “the legislative history of S.B. 46 and K.S.A. 19-805(a) demonstrates the legislature’s intent to vest sheriffs, not boards of county commissioners, with the authority to ‘appoint, promote, demote, and dismiss additional deputies and assistants.’” 275 Kan. at 266. Moreover, this case is distinguished from Huffmier v. Board of County Commissioners, et. al., Shawnee County Case No. 00-C-250 in that Officer Huffmier was terminated by the County Commissioners during the period of time the office of the Sheriff was vacant. In this case, it is uncontroverted that the plaintiff retired during Sheriff Barta’s term of office. Thus, the Court finds that the Board of County Commissioners of Shawnee County, Kansas, Richard Eckert and Dan Bryant are entitled to summary judgment as a matter of law on the plaintiff’s retaliatory discharge claim.
Turning to the claim of retaliatory discharge against Sheriff Barta, it is important to recognize at the outset that the plaintiff was never fired, laid-off or otherwise discharged from his employment. Rather, the uncontroverted evidence reveals that the plaintiff retired on May 19, 2000. As such, the plaintiff does not have a traditional case of wrongful or retaliatory discharge. Rather, the plaintiff bases his claim in this case on an allegation that he was constructively discharged from his employment by Sheriff Barta.
In the case of Purvis v. Williams, 276 Kan. 182, 201, 73 P.3d 740 (2003), the Kansas Supreme Court held that a claim for “retaliatory discharge sounds in Kansas common-law and is subject to Kansas policy favoring at-will employment except for a few carved out exceptions.” To date, neither the Kansas Legislature nor the Kansas Supreme Court has “carved out” an exception for constructive discharge. Although it has been predicted by some federal judges that an exception for constructive discharge may be carved out by the Kansas Supreme Court in the future, the uncontroverted facts of this case do not support such an exception. Moreover, the uncontroverted facts do not support a violation of public policy by Sheriff Barta.
It is undisputed that the Shawnee County Sheriff’s Department and its employees went through difficult times prior to, during and after the ouster of former Sheriff Meneley. It is also uncontroverted that former Sheriff Meneley was removed from office on February 24, 2000. Any legal questions which remained regarding whether Meneley was appropriately removed from office where resolved when the Kansas Supreme Court unanimously affirmed the ouster in the case of State ex rel. Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2001). Thus, when Sheriff Barta was sworn into office on March 21, 2000, he was faced with the arduous task of restoring stability to a department in turmoil.
The plaintiff contends that immediately following former Sheriff Meneley’s ouster, “county and sheriff’s department officials put the narcotics unit [he] supervised under close and harsh scrutiny, and subjected them to acts of open hostility - having patrol officers stand guard, changing locks on doors, searching their desks, seizing their records, and so forth.” Clearly, Sheriff Barta was not responsible for creating these conditions since he was not in office at the time. Rather, the uncontroverted evidence reveals that the turmoil in the Shawnee County Sheriff’s Department began during the Meneley administration, continued through the ouster proceedings and was inherited by Sheriff Barta when he was sworn into office in March of 2000. Thus, even if constructive discharge was recognized in Kansas and even if the plaintiff’s allegations were sufficient to support a prima facie case of working conditions which were so intolerable that a reasonable person would have felt forced to retire, Sheriff Barta is not the person responsible for creating such an environment.
It is uncontroverted that Sheriff Barta was faced with a complaint from a private citizen regarding two of his narcotics officers less than a month after he took office. As indicated above, the plaintiff has admitted that he and Lt. Larry Crady went to the home of Lisa Gordon on April 18, 2000, to interview her regarding allegations that she used drugs with a sheriff’s deputy who had formerly been a member of the narcotics unit. It is also uncontroverted that Sheriff Barta did not order the investigation nor was he aware of the investigation. Rather, the uncontroverted evidence reveals that it was former Sheriff Meneley who had asked the plaintiff and Lt. Crady to interview Ms. Gordon while he was still in office.
Moreover, the plaintiff has admitted that instead of filing an official report, he and Lt. Crady immediately went to a private home following their interview of Ms. Gordon to give an informal report to former Sheriff Meneley. In addition, the uncontroverted evidence reveals that it was not until the day after receiving the complaint from Ms. Gordon that Sheriff Barta was given the written reports regarding the domestic incident involving the plaintiff in September of 1996. These reports had never been placed in the plaintiff’s personnel file and they were discovered in former Sheriff Meneley’s office following his removal from office. Sheriff Barta appropriately ordered an internal affairs investigation and requested that it be performed by Officer Breci of the Topeka Police Department. Based on this investigation, Sheriff Barta placed both the plaintiff and Lt. Crady on administrative leave with pay.
As the Honorable Julie Robinson stated on page 14 of her Memorandum Order and Opinion issued August 15, 2003, Busey “did not make a written report and was equivocal on his communication with Meneley when questioned by Officer Breci.” Moreover, as Judge Robinson stated on page 15 of her opinion, “Busey’s investigation of deputy Holladay was unauthorized and, by interviewing Gordon about Holladay’s alleged drug use, Busey appears to have breached FOP rules requiring receipt of allegations of misconduct of fellow officers to be reported to the chief steward. Further, by speaking with Meneley about the interview with Gordon, Busey appears to have breached general Department confidentiality rules against discussing such matters with persons outside the Department.” Based upon a review of the record in this case, this Court agrees with Judge Robinson’s analysis.
At the very least, the uncontroverted facts clearly show a breach of confidentiality and a failure to follow the appropriate chain of command. As Judge Robinson points out on page 16 of her opinion, “personal loyalty and confidence are especially important among officers, who are charged with ensuring public safety and who often must work together in life-and-death situation.” In Lytle v. City of Haysville, 138 F.3d 857, 866 (10th Cir. 1998), the United States Court of Appeals for the Tenth Circuit held as follows:
“Any breach of confidentiality. . . reflects negatively on an officer’s
ability and competence to perform his job, and each officer’s competence
affects the overall effectiveness of the department.” Melton, 879 F.2d
at 715. Moreover, personal loyalty and confidence are especially important
among police officers, who are charged with ensuring public safety and who
often must work together in life-and-death situations. See Moore, 57 F.3d
at 934 (The “need [for workplace harmony] is particularly acute in the context
of law enforcement, where there is a ‘heightened interest . . . in maintaining
discipline and harmony among employees.’” quoting Wulf v. City of Wichita,
833 F.2d 842, 861 (10th Cir. 1989)); Koch, 847 F.2d at 1452 n.22 (“A number
of cases have emphasized the heightened governmental interest in maintain-
ing harmony among employees in the law enforcement context.”)
Clearly, there is a link between “confidentiality rules and the morale and effective functioning” of a law enforcement agency. 138 F. 3d at 868.
Although any breach of confidentiality by a law enforcement officer is a legitimate cause for concern, it is particularly serious when the breach involves the investigation of a fellow officer. The breach by the plaintiff and Lt. Crady is even more troubling since they were reporting to a former employer who had been removed from office less than two months earlier. As found in the case of Stewart v. City of Wichita, 827 F. Supp. 1537 (D. Kan. 1993), “a chain of command structure is an indispensable element of the modern police force.” Thus, the Court finds that the actions of the plaintiff and Lt. Crady in conducting an unauthorized investigation and immediately reporting the results of their interview to the former Sheriff instead of filing an official report, constitute legitimate and non-discriminatory reasons for the disciplinary action taken by Sheriff against the plaintiff.
The plaintiff refers the Court to the note given to Sheriff Barta by Officer Bryant on April 20, 2000. The note, which was attached to the reports involving the 1996 domestic incident, requested that Sheriff Barta review the reports “to see if you think this may be a good way to urge Earl Busey to leave or get a psych. eval.” However, even after receiving this note, learning about the breach of confidentiality and finding out about the chain of command violation, Sheriff Barta did not discharge the plaintiff. Rather, Sheriff Barta exercised patience by placing the plaintiff on paid administrative leave and by taking the matter under advisement.
After considering the issue for nearly a month, Sheriff Barta still did not discharge the plaintiff. Rather, he informed the plaintiff that he would be required to undergo a psychological evaluation prior to returning to duty. There is no evidence in the record that Sheriff Barta asked for the plaintiff’s resignation nor is there any evidence that he gave him any reason to believe that he would not be allowed to return to work. In response, the plaintiff hastily requested that the two-week notice requirement be waived so that he could retire effective May 19, 2000, and Sheriff Barta granted his request. Although the Court understands why the plaintiff would have preferred it had he been asked not to retire, Sheriff
Barta was under no legal obligation to talk him out of his decision. Thus, the Court finds that Sheriff Barta acted responsibly based on the set of facts with which he was confronted and the uncontroverted evidence reveals that the plaintiff had a reasonable option other than to take immediate retirement.
For the reasons set forth above, the Court finds that the plaintiff’s claim for retaliatory discharge is not supported by Kansas law. None of the recognized exceptions to the employment-at-will doctrine are applicable to the facts of this case. The plaintiff was not discharged from his employment and he has failed to state a prima face case for retaliatory discharge. See Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1275-1276 38 P.3d 679 (2002). “Under the employment-at-will doctrine, an employer can terminate an employee for good cause, for no cause, or even for a wrong cause, without incurring liability for wrongful discharge.” 272. Kan. at 1275.
Had the plaintiff been able to come forward with sufficient evidence to state a prima facie case of retaliatory discharge, the uncontroverted evidence presented would have also justified a legitimate and non-discriminatory reason for termination of the plaintiff’s employment. Moreover, the Court further finds that the plaintiff has failed to come forward with evidence that Sheriff Barta’s reasons for disciplining the plaintiff were merely a pretext for unlawful activity. Therefore, the Court finds that Sheriff Barta is also entitled to summary judgment as a matter of law on the plaintiff’s retaliatory discharge claim.
C. Invasion of Privacy-False Light.
In Kansas, the elements of an invasion of privacy-false light claim are: 1) publication to a third party; 2) which falsely represent the person; and, 3) which is highly offensive to a reasonable person. See Dominguez v. Davidson, 266 Kan. 926, 937, 974 P.3d 112 (1999). Defamation and false light/invasion of privacy are usually treated the same and truth is a defense to both claims. 266 Kan. at 938. Thus, truth and privilege are absolute defenses to the plaintiffs false light/invasion of privacy claim.
Although it is understandable that the plaintiff would not like the publication of the articles regarding the administrative leave or regarding his retirement, the uncontroverted evidence reveals that both the substance of the articles and the quotations contained in the articles were truthful. However, it should have come as no surprise to the plaintiff or Lt. Crady that the media would have an interest in their case in light of the publicity leading up to, during and after the removal of former Sheriff Meneley from office. As such, it is reasonable that the Sheriff’s Department would have issued a Press Release after the plaintiff and Lt. Crady were placed on paid administrative leave.
As indicated above, the first article in question appeared in the Topeka Capital-Journal on May 3, 2000. In the article, it was truthfully reported that the plaintiff was placed on paid administrative leave as part of an internal affairs investigation. Moreover, the article quoted Eckert as saying that the action was related “to the sheriff’s department drug scandal, but
until we get the investigation done, I don’t want to say anything.” This statement was also
truthful since the discipline imposed on the plaintiff and Lt. Crady was based on their investigation of possible drug use by a fellow officer, Scott Holladay, who was a former member of the narcotics unit.
As the Kansas Supreme Court found in the Meneley decision, Holladay was a member of the narcotics unit during the time period that discrepancies in the weight of drugs from the evidence locker were first noticed. 271 Kan. at 359-60. Likewise, Holladay was questioned in the 1994 internal affairs investigation conducted by Detective Mike Ramirez involving missing drugs which had been kept in his desk prior to being returned to the evidence locker. 271 Kan. at 360-61. In 1999, Deputy Timothy Oblander admitted that he had taken the drugs from Holladay’s unlocked desk drawer in 1994. 271 Kan. at 361. Thus, although Mr. Eckert’s statement could have been misconstrued by those who wished to jump to unfounded conclusions, it was true that there was a relationship between the actions leading to the discipline of the plaintiff by Sheriff Barta and the drug scandal in the Sheriff’s Department which had been ongoing since 1994.
The second article in question was published in the Topeka Capital-Journal on May 6, 2000. The article stated that “Rich Eckert, the Shawnee County counselor, said Thursday that he wanted to make it clear that Crady and Busey weren’t being accused of stealing cocaine, other drugs or money.” This statement was not only true but it also cleared up any subjective misunderstanding which may have existed after the first article was published. Eckert’s statement made it clear that although there was a relationship between the officers
being placed on paid administrative leave and the drug scandal, they were not being accused of stealing money or drugs.
The May 6, 2002, article also quoted Mr. Eckert as saying: “Busey and Crady were placed on administrative leave based on a ‘chain of command problem’ which was ‘somewhat related to the ouster’ and the sheriff’s drug scandal said Eckert, who declined to elaborate.” As noted above, there was a relationship between the facts in the Meneley ouster case and the Sheriff Barta placing the plaintiff on administrative leave. Moreover, as more fully described above, the report made by Busey and Crady to the former Sheriff regarding their unauthorized investigation into alleged drug use by a fellow officer clearly constituted a “chain of command” problem.
The third article in question was published in the Topeka Capital-Journal on May 18, 2000. The author of the article wrote that “Sgt. Earl Busey, supervisor of the sheriff’s narcotics unit will retire effective Friday, said Sgt. Marsha Bryant.” The article went on to briefly summarize the previous articles as well as the history of the “drug scandal” which began in 1994. It also stated that the plaintiff had “called Sheriff Barta on Wednesday morning to ask whether he could waive the usual two-week notice to retire from the department, and Barta approved.” Based on the uncontroverted evidence presented in this case, the statements contained in this article were also truthful.
When viewed in full and in context, the Court finds the articles and the quotations contained in the articles to have been truthful. None of the articles or quotations accuse the plaintiff or Lt. Crady of using drugs, of stealing drugs or of stealing money. Moreover, there is no evidence that the defendants had control over what was actually written by the Topeka Capital-Journal reporter. Therefore, since truth is an absolute defense, the Court finds that the defendants are entitled to summary judgment as a matter of law on the false light/invasion of privacy claim.
CONCLUSION.
For the reasons set forth in this Memorandum Decision and Order, the Court hereby grants the motions for summary judgment filed by the defendants. Since the United States District Court for the District of Kansas previously granted summary judgment in favor of the defendants on the plaintiff’s federal claims, this case should be and hereby is dismissed as a matter of law. This Memorandum Decision and Order shall serve as the final judgment of the Court. No further Journal Entry is required. The costs are hereby assessed to the plaintiff.
Entered on this day of September, 2004.
David E. Bruns
District Court Judge
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the day of , 2004, she served a true and correct copy of the above and foregoing pleading by United States mail, first class postage prepaid; telefax, and that the transmission was reported as complete and without error and the telefax machine complied with Supreme Court Rule 119(b)(3); or hand delivery; addressed as follows:
Margie J. Phelps
Attorney at Law
3734 SW 12th St.
Topeka, KS 66604
Jonathan B. Phelps
Attorney at Law
1414 S. Topeka Blvd.
Topeka, KS 66614
Steven J. Pigg
Attorney at Law
3550 SW 5th St.
PO Box 949
Topeka, KS 66601
William A. Larson
Attorney at Law
5601 SW Barrington Ct. S.
PO Box 4306
Topeka, KS 66604
Felicia M.Theel
Administrative Assistant