Professional Negligence Law Reporter

The Virginia Supreme Court held that a commonwealth’s attorney may be liable for defamation to a former employee.

Chadwick Baker was elected to succeed Joshua Newberry as the commonwealth’s attorney for Dickenson County, Va. Sheila Viers, who had worked for 29 years as an administrative assistant in the office of the commonwealth’s attorney, asked Baker whether she would lose her job. Baker assured her that she would keep her job. Several months later, Baker called Viers into his office, expressed that the office was dirty, and fired Viers, despite the fact that office cleaning was not part of her job duties.

Baker met with Newberry that day and was told that the reason he was unable to access his office computer was because Newberry had removed his password. The following week, at a meeting of the Dickenson County Democratic Committee, however, Baker allegedly told the attendees that he had fired Viers because his office computer had been wiped clean and he could not use it. Baker also allegedly told others that Viers had been fired for tampering with his office computer. Viers, an active member of the Democratic party, later found lower-paying employment in another commonwealth’s attorney office.

She sued Baker, alleging defamation and intentional infliction of emotional distress. The defendant filed a demurrer and moved to dismiss. The trial court granted the motion, finding that Baker had absolute immunity from suit.

The state high court affirmed dismissal of the emotional distress claim and reversed the trial court’s decision on the plaintiff’s defamation claim. The court found that under Virginia law, judges are entitled to absolute immunity, and quasi-immunity may cover other public officials who are performing judicial functions, acting within their jurisdiction, and operating in good faith. Citing case law, the court noted that whether a defendant was performing a judicial function turns on whether the procedure in question shares similar characteristics to a judicial process.

Applying these principles here, the court found that the plaintiff had not raised the issue of whether the defendant had immunity for his decision to fire her. Instead, the court said, the plaintiff disputed that immunity applied to the defendant’s allegedly defamatory statements about why he fired her. The court concluded that the defendant’s statements, made to his constituents and other members of his political party, do not relate to the judicial process or qualify as performance of a judicial function, necessary elements for quasi-judicial immunity to apply. Additionally, the court said, the statements did not fall within the scope of the defendant’s prosecutorial duties and were not intimately associated with the judicial phase of a criminal process.

Accordingly, the court concluded that the trial court’s judgment sustaining the defendant’s demurrer to the plaintiff’s defamation claim had been improper.

Citation: Viers v. Baker, 841 S.E.2d 857 (Va. 2020).

Plaintiff counsel: Gerald Gray, Clintwood, Va.; and Erin Ashwell, Charles Dickenson, and Frank Friedman, all of Roanoke, Va.