Executive Immunity: CONNER V. PATTON (COA 10/26/2007)

DATE RENDERED: 10/26/2007

CA affirms TC order denying appellant Tina Conner’s motion to amend her complaint and granting appellee Paul Patton’s motion to dismiss her action. (Franklin Cir. Ct., Hon. Roger L. Crittenden, Judge, presiding)

Appellant and appellee had a sexual relationship while appellee was Governor of the Commonwealth of Kentucky. Conner alleges that, after she terminated the relationship, her construction business "no longer had access to public construction projects and her nursing home suffered from a pattern of harassment from [state] agencies." Conner filed suit against Patton and the Commonwealth, raising various claims including sexual harassment, intentional infliction of emotional distress, outrage, defamation and waste. All claims against the Commonwealth were dismissed, as were the sexual harassment and waste claims against Patton, individually and in his official capacity. Conner appealed, but the CA affirmed the dismissals. During that appeal, the TC also entered an order dismissing Conner’s defamation claim against Patton, which Conner did not appeal, leaving only the IIED claim against Patton.

Conner then moved for leave to file a 2nd amended complaint. In response, Patton moved to dismiss her claim for want of prosecution, which was granted, and denied her motion to amend and her subsequent motion to alter, amend or vacate.

CA holds that denial of Conner’s amendment was proper in that, if Patton enforced laws and regulations against her nursing home, if his actions fall under his lawful authority, his motives are irrelevant. Further, Conner cannot prove Patton’s actions before she exercised her constitutional right to free speech were retaliatory and in violation of those rights. Also, Conner did not make any of the necessary allegations to succeed in a due process claim. Conner’s slander per se claim was properly dismissed as it is based on the same allegations of the defamation claim, which was dismissed and not appealed.

As to the IIED claim, the CA holds that "[t]he fact that Patton was in a powerful position as the Governor of Kentucky, and that he therefore was able to express vindictiveness relating to their personal relationship in a manner which could interfere with her financial stability or career, does not elevate the situation to the level of outrageousness required for a plaintiff to recover on a claim for IIED.

As to her failure to prosecute her claims, Conner did not take any action in this matter, other than to change counsel, from January 2003 until October 2005.

Digested by John Hamlet
Sitlinger, McGlincy, Theiler & Karem

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