Zimmerman Lawsuit a Costly Boondoggle

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Peter Kennedy

First council candidate in decades, if ever, to sue the media in effort to suppress coverage

“To my memory, your honor—and I’ve been defending libel cases in Austin since 1990—this is the first time a candidate for City Council has ever sued the local media.”

Peter Kennedy
Peter Kennedy

Attorney Peter D. Kennedy made that claim in court January 5, 2015, representing The Austin Bulldog in seeking dismissal of the defamation lawsuit brought by District 6 City Council candidate Don Zimmerman.

The case was decided January 7 in The Austin Bulldog’s favor by Judge Amy Clark Meachum of the 201st District Court of Travis County, after hearings held December 18 and January 5. The decision came the day after Zimmerman was sworn into office.

Zimmerman’s lawsuit was dismissed with prejudice, meaning he is “forbidden from filing another lawsuit based on the same grounds.” Further he was ordered to pay $8,400 in reasonable attorney’s fees (less than a third of the $28,420 actually incurred in defending this lawsuit), court costs and other expenses of $579. In addition the court ordered Zimmerman to pay a sanction of $1,000 under Section 27.009 of the Texas Civil Practice and Remedies Code.

The significance of Zimmerman’s ill-fated attack goes far beyond what happens to The Austin Bulldog, a small independent nonprofit publishing investigative reporting in the public interest. It is crucial that the First Amendment right to report on judicial proceedings be protected. Judge Meachum’s order upholds that right.

Lawsuit legally futile

Bill Aleshire
Bill Aleshire

Zimmerman’s lawsuit was baseless. The Bulldog’s other attorney, Bill Aleshire of Riggs Aleshire & Ray PC, notified Zimmerman’s attorney October 15, 2014—two days before the lawsuit was filed—that a fair, true, and impartial account of recent court proceedings and public court records is, by law, privileged and not a ground for libel action, per Section 73.002 of the Texas Civil Practice and Remedies Code.

“Such a lawsuit would be groundless on its face,” Aleshire wrote.

“Not only is the story of the Court’s proceedings and findings privileged from a claim for libel, (but) the story is also a communication exercising The Austin Bulldog’s right of free speech and free press, rendering any litigation action that Mr. Zimmerman may take subject to the Texas Anti-SLAPP statute.”

The ramifications of the Anti-SLAPP statute include “an award for The Austin Bulldog against Mr. Zimmerman for damages, attorney fees, costs, and sanctions in an amount the Court finds sufficient and necessary to deter Plaintiff from bringing similar actions,” Aleshire wrote.

Further, Bulldog attorney Kennedy again warned Casey November 7 that the “article is not libelous” and that if Zimmerman did not dismiss his lawsuit by November 14, 2014, we “will seek attorney’s fees, sanctions and costs from Mr. Zimmerman for having filed a groundless lawsuit.”

As it turned out, both Aleshire and Kennedy’s warnings went unheeded, with results exactly as predicted.

Don Zimmerman
Don Zimmerman
Stephen Casey
Stephen Casey

Zimmerman’s attorney Stephen Casey of the Round Rock Law Office of Stephen Casey—who is also Zimmerman’s campaign treasurer—filed the lawsuit October 17, just six days after the story was published.

From a legal viewpoint Zimmerman’s lawsuit was a losing proposition. Filing it demonstrated his attorney’s lack of expertise with libel laws pertaining to political candidates and the protection afforded First Amendment rights under the Texas Citizens Participation Act, which was enacted by unanimous vote of the Texas House and Senate in 2011.

The statute was designed, according to Section 27.002 of the Civil Practice and Remedies Code, “to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”

The lawsuit also demonstrates Zimmerman’s lack of understanding that there is a fundamental difference between being a candidate for public office and being an activist with a penchant for filing lawsuits, which Zimmerman certainly is. The Austin American-Statesman reported at length on many of his lawsuits November 25, 2014, in “After years of fighting government, Don Zimmerman angles to join it.”

Political candidates and elected officials generally understand the give-and-take relationship with the media, knowing full well that not everything published about them will be favorable.

President John F. Kennedy knew this and said in 1962, “Even though we never like it, and even though we wish they didn’t write it, and even though we disapprove, there isn’t any doubt at all that we could not do the job at all in a free society without a very, very active press.”

Zimmerman apparently entered the political arena expecting a free pass regarding a court order he signed and approved in June 2014 that included a finding that allegations in the mother’s petition were true: that he has “a history or pattern of emotional and physical child abuse.”

The expectation may have stemmed from the fact that the court records reflecting allegations of child abuse were supposed to have been sealed, attorney Casey said in an October 8 interview, before the Bulldog’s story was published.

Kateryna Bochenkova
Kateryna Bochenkova

Zimmerman’s ex-wife, Kateryna Bochenkova, agreed, saying, in an interview the same day, “We offered to have the records sealed but they never went through with it, Don and his attorney.”

The Docket Sheet for the case indicates that no motion to seal the records was ever filed. The Austin Bulldog purchased copies of those records, which formed the basis for the October 9 article.

Lawsuit successful politically

While Zimmerman’s case was on shaky legal ground, from a purely political viewpoint, filing a lawsuit provided Zimmerman with a ready argument for anyone who questioned him about the child abuse allegations during his campaign—and he was questioned, according to his signed affidavit introduced for the final hearing January 5.

To anyone who asked he was able to respond by saying that the accusations of child abuse were “all lies” (the Bulldog’s story quoted him saying so) and “I sued,” as if to say he was on the legal high ground.

However, as the Bulldog’s motion to dismiss states, “Zimmerman’s lawsuit is a transparent effort to bully the media into not reporting negative information about him prior to the December runoff election.”

Only the Austin Monitor covered the topic, and then only after initially caving to Zimmerman’s threat. On October 15 the Monitor published an article, “Zimmerman threatens lawsuit over abuse stories,” which stated, “Zimmerman’s attorney, Stephen Casey, also demanded that the Austin Monitor retract a Whisper (a small news item) concerning the Bulldog story in last Friday’s publication within 24 hours. Even though the Monitor does not believe the item was defamatory, the item was removed from the site Friday evening.”

That same article did address the Bulldog’s story and was the only media coverage of the topic before the November 4 election.

The Austin Monitor published nothing else about the lawsuit until December 18, the day of the first hearing on the Bulldog’s motion to dismiss held two days after Zimmerman won the runoff—and after Zimmerman had sought to dismiss his lawsuit voluntarily.

Without ascribing motives or questioning the news judgment of other news organizations, it should also be noted that the Austin American-Statesman never reported on Zimmerman’s lawsuit until after the judge ruled in the Bulldog’s favor.

The Austin Chronicle did not report substantively until December 12—just four days before the runoff election.

A classic SLAPP suit

Zimmerman’s lawsuit was a textbook case of a hit-and-run action known as a Strategic Lawsuit Against Public Participation (SLAPP), designed to eliminate unfavorable coverage that might affect his election. It is also a prime example of why the Texas Citizens Participation Act is vital to a functioning democracy.

Zimmerman made his daughter a campaign issue with statements on his campaign website, Austinites for Zimmerman: “My wife Jennifer Winter Zimmerman holds B.S. and M.S. degrees in education and has worked over a decade as a high school Spanish teacher. … I have one remarkable teenage daughter, Marina Lorna Zimmerman.”

As Bulldog attorney Kennedy wrote in his January 5 reply to the court, “By introducing his second wife as Jennifer Zimmerman and then referring to his daughter as Marina Zimmerman—a name she no longer uses—the campaign website created the misleading impression of a happy nuclear family of three. After making his daughter part of his political campaign, Zimmerman cannot claim that the public had no interest in learning about how he lost all right to see or even communicate with her.”

The purely political nature of Zimmeman’s lawsuit is evidenced by the following facts:

• Zimmerman’s attorney is his campaign treasurer,

• the lawsuit was never formally served on the Bulldog,

• Zimmerman opened himself to financial penalties by failing to withdraw the suit as requested before the Bulldog filed its motion to dismiss,

• instead the legal action was withdrawn the night of the runoff election (as soon as Zimmerman saw that he had won), and

• Zimmerman did not seek discovery in an effort to prove his allegations of malice until the case was dragged into court through the Bulldog’s motion to dismiss.

Zimmerman has until February 12, 2015 (30 days after the Order Granting Motion to Dismiss was signed by Judge Meachum and filed with the Travis County District Clerk) to file an appeal or a motion for a new trial, said attorney Aleshire, who recently set up his own new practice, Aleshire Law PC.

Judge Meachum’s order granting the Bulldog’s motion to dismiss requires Zimmerman to pay substantial additional attorney’s fees to the Bulldog if he appeals and loses.

It remains to be seen whether Zimmerman will pull back on the reins of this ill-fated lawsuit or continue to charge heedlessly ahead.

This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.

Related Bulldog coverage:

Zimmerman Lawsuit Dismissed and Sanctioned: The Austin Bulldog’s anti-SLAPP motion approved after second hearing, damages and cost assessed, January 7, 2015

Bulldog Defends Zimmerman Lawsuit, November 25, 2014

Zimmerman Sues Bulldog, Claims Defamation: District 6 candidate Don Zimmerman claims ‘The Austin Bulldog’ report made false accusations, October 16, 2014

Candidate Lost Custody Over Abuse: District 6 Council candidate Don Zimmerman injured, alienated daughter, court records state, October 9, 2014

Other coverage of this lawsuit (access may involve paywalls):

New CM Zimmerman Loses to Bulldog: Sanctioned for lawsuit against publication, The Austin Chronicle January 9, 2015

Zimmerman libel suit against Bulldog dismissed, Austin Monitor January 8, 2015

Judge dismisses defamation lawsuit, orders Don Zimmerman to pay up, Austin American-Statesman January 7, 2015

Zimmerman Suit Not Yet “Bygone”: Judge will hear motion that could mean sanctions, The Austin Chronicle December 26, 2014

Zimmerman drops lawsuit, but case goes forward, Austin Monitor December 19, 2014

Zimmerman v. Bulldog case going to court today, December 18, 2014

Zimmerman’s Latest Lawsuit: Is D6 candidate trying to silence coverage of custody case? The Austin Chronicle December 12, 2014

After years of fighting government, Don Zimmerman angles to join it, Austin American-Statesman November 25, 2014

Zimmerman threatens lawsuit over abuse stories, Austin Monitor October 15, 2014

Links to all records for this lawsuit (in chronological order):

Order Granting Motion to Dismiss (3 pages, filed January 13, 2015)

Ruling on The Austin Bulldog’s Anti-SLAPP Motion (2 pages dated January 7, 2015)

Supplemental Affadavit of Peter D. Kennedy Supporting Application for Attorney’s Fees and Costs (7 pages dated January 6, 2015)

Transcript of Hearing on Anti-SLAPP Motion January 5, 2015 (40 pages)

Defendants’ Reply In Support of Motion to Dismiss (19 pages filed January 5, 2015)

Don Zimmerman’s Response to Defendant’s Motion to Dismiss and Request for Limited Discovery (59 pages filed January 2, 2015)

Plaintiff’s Notice of Nonsuit (2 pages filed December 16, 2014)

Affadavit of Peter D. Kennedy Regarding Attorney’s Fees and Costs (10 pages filed December 9, 2014)

Defendant’s Motion to Dismiss Pursuant to Chapter 278, Texas Civil Practices and Remedies Code (22 pages without exhibits dated November 25, 2014)

Defendant’s Motion to Dismiss Pursuant to Chapter 278, Texas Civil Practices and Remedies Code (113 pages with exhibits filed November 25, 2014)

Don Zimmerman v. Austin Investigative Reporting Project dba The Austin Bulldog; Ken Martin (13 pages filed October 15, 2014)

The Austin Bulldog’s Response to Retraction Demand (7 pages dated October 13, 2014)

Retraction Demand on Behalf of Don Zimmerman (5 pages dated October 10, 2014)

Don Zimmerman’s Campaign Finance Report filed October 6, 2014{jcomments on} (18 pages)

Docket Sheet Cause No. D-1-FM-05-000710 (6 pages recording 81 items filed in the case through July 22, 2014)

Don Zimmerman’s Appointment of Campaign Treasurer Stephen Casey filed July 21, 2014 (2 pages)

Don Zimmerman’s Campaign Website (Austinites for Zimmerman)

District Court 201st Judicial District, Travis County, Texas, No. D-1-05-000710 (52 pages. The doctor’s records are on pages 12-16)

Final Decree of Divorce In the Matter of the Marriage of Kateryna and Donald Shelly Zimmerman (24 pages filed May 27, 2005)