Judge rejects Wichita City Council member’s motion to dismiss mayor’s defamation lawsuit

Wichita Mayor Brandon Whipple’s defamation lawsuit against Wichita City Council member James Clendenin may continue, a judge ruled Friday after Clendenin asked the court to dismiss the case.

The ruling came after Clendenin’s lawyer, Mark Ayesh, argued that Whipple’s reputation was not damaged by an attack ad that falsely accused him of sexual harassment because Whipple defeated former Mayor Jeff Longwell in the 2019 mayoral election.

“Did (Whipple’s) reputation get damaged?” Ayesh asked. “That’s, you know, the whole purpose of the ad ... was to make sure he didn’t get elected mayor. That didn’t happen.”

The ad — published on YouTube and Facebook by a New Mexico shell company under the title “Protect Wichita Girls” — featured paid actresses posing as statehouse interns and reading from a script of accusations that had originally been made against other lawmakers, not Whipple. They urged viewers to “Stop Brandon Whipple.”

The ad was quickly debunked, but it was viewed nearly half a million times in less than the three weeks leading up to the election.

Whipple has said the video, which provided his personal cell phone number, prompted harassing calls and at least one death threat, forcing him to move his family to the basement of their home to avoid any potential drive-by shootings. He is seeking a total of $300,000 for pain and suffering and damages.

Senior Judge John E. Sanders, in a Zoom hearing on Friday, cleared the path for the lawsuit to proceed.

“I am going to deny Mr. Clendenin’s motion to dismiss,” Sanders said. “I think that there are facts here — if the jury finds them to be true — that conclude that there’s defamatory statements and that it could damage the reputation.”

Clendenin’s co-defendants are his business partner state Rep. Michael Capps and former Sedgwick County Commissioner Michael O’Donnell, who previously served on the City Council with Clendenin and Longwell. The three Republican officials were secretly recorded plotting to frame former Sedgwick County GOP Chairman Dalton Glasscock for the video.

Clendenin, Capps and O’Donnell have each argued in court filings that the video was not defamatory because Whipple won. The judge’s decision Friday means Capps and O’Donnell will likely have to adopt a different line of reasoning if they want to dismiss the lawsuit.

Clendenin raised money, plotted cover-up

Clendenin has admitted to raising money for the video through the Fourth and Long Foundation, a 501(c)(3) nonprofit charity controlled by Capps. Clendenin has said he thought the money would be used on anti-Whipple political billboard advertisements.

After months of denying any part in the video campaign, Clendenin’s involvement became evident when audio from the secretly recorded meeting was released to news outlets in October by the video producer. The recording prompted widespread condemnation and calls for all three to resign. O’Donnell resigned after District Attorney Marc Bennett informed him he planned to oust him.

Clendenin, who has a year left in his term, and Capps, who lost in the August primary, have not resigned. Last month, Bennett filed a petition to remove Clendenin from his seat on the City Council, saying he committed criminal and unethical acts that make him unfit to hold public office.

During oral arguments, Whipple’s lawyer, former U.S. Attorney for Kansas Randy Rathbun, reiterated what he has already stated in court filings.

“We start out saying supporters of Longwell entered into a civil conspiracy to publish defamatory claims about Mr. Whipple and that Mr. Clendenin was the principal fundraiser,” Rathbun said. “In a text on Oct. 15, (Clendenin) said this picture of a happy family is about to be blown up.

“We alleged that the ad produced was a disgusting, false and defamatory hit piece,” he added. “None of the statements alleged were about (Whipple) in the newspaper that they took it from. We claim the video was successful beyond their wildest expectations, that it reached almost half a million viewers. And that (Whipple) received hate calls and death threats. And finally we asked for a judgment to clear his good name.

“If that isn’t pleading damage to one’s reputation, I don’t know how to do it,” Rathbun said.

Judge admonishes Capps

Capps also filed a motion to dismiss the lawsuit and a counterclaim against Whipple and Glasscock. He said he was not prepared to argue the motion on Friday and was granted an extension by the judge.

Before Sanders heard any of the pleadings on Friday, he admonished Capps for filing similar court documents to his former campaign manager and the video’s producer Matthew Colborn, who was dropped from the lawsuit after providing the secret audio recording.

Judge Sanders said he was “struck by the similarities” in Capps’ filings and those submitted by Colborn when he was representing himself.

“The line spacing and set up of the documents are the same,” Sanders said. “It looks like it was typed on the same computer and was sent out through the same fax. I hope, sir, that you aren’t preparing legal documents for other parties.”

“No, sir,” Capps said. “Mr. Colborn did reside in my office, though, your honor.”

“Well, I think I saw something to that effect in the paper or something,” Sanders said.

Despite an audio recording showing otherwise, Capps continues to blame Glasscock for the video.

“On October 16, 2019, Capps witnessed Matthew Colborn requesting permission from then-County Commissioner Michael O’Donnell to begin distribution of the alleged video,” Capps wrote. “O’Donnell informed Colborn he could not proceed without securing Dalton Glasscock’s permission.”

Capps refers to a text message sent by Glasscock to O’Donnell to bolster that claim.

“Glasscock instructed O’Donnell, via text message, to stop raising money for the ad. In communicating this information to O’Donnell, Glasscock admits he is instrumental in fundraising for the alleged video,” Capps wrote.

The text message was part of a conversation in which Glasscock condemned the video and told O’Donnell to stop fundraising for the county Republican Party because of his suspected involvement. The fundraising does not appear to be linked to the video, which had already been online two weeks before the text message exchange.

Capps also claims Whipple was not damaged by the video and, as a public official, “has voluntarily subjected himself to critical and even negative public opinion” and is therefore barred by state law from filing the lawsuit.

From Whipple, Capps is seeking punitive damages of $50,000 “to deter (Whipple’s) future misuse of the court.

From Glasscock, he is seeking $75,000 in punitive damages “to deter (Glasscock) from future misconduct.”

Clendenin and Whipple were not present for the court hearing and appeared through legal counsel. O’Donnell and Glasscock also did not attend the virtual court hearing.

Aside from the motion to dismiss, Capps withdrew a motion that sought to block Rathbun from obtaining the Fourth and Long Foundation’s bank statements in the months surrounding the video’s publication. Instead, Capps agreed to hand over those records as long as they remain under a protective order that bars them from public disclosure.

Capps and Clendenin are under investigation by the district attorney for nearly half a million dollars in questionable CARES Act awards to entities tied to the smear campaign, including a $10,000 grant and $85,000 loan to the Fourth and Long Foundation.

The charity dissolved in October, and Capps said he plans to return the coronavirus relief money it received from the Small Business Administration.

This story was originally published December 20, 2020 at 7:00 AM.