WEB EXCLUSIVE: The case to erase
Former councilwoman seeks to erase defamation lawsuit’s findings from the record
Former Metro Councilwoman Denise Bentley has filed a motion in civil court to strike former council candidate Ken Herndon’s defamation lawsuit from the public record.
Earlier this week, Herndon — who ran against Councilman George Unseld, D-6 — asked a judge to dismiss the civil case he filed last year in response to a homophobic campaign flyer that included his face transposed atop the body of a man embracing two other men at a gay pride parade. The mailer was disseminated just days before the 2008 Democratic primary election, and Herndon believes it cost him the race.
In moving to dismiss the suit, however, Herndon also filed depositions, affidavits and other evidence he had previously been withholding from the public record. That evidence includes the discovery that the Unseld campaign spent $3,685 on postage leading up to Election Day, and that the campaign could not produce receipts for the expenditure. In a deposition, Bentley, who served as Unseld’s campaign manager, said she could not recall what happened to the receipts.
Despite compelling evidence, the absence of a smoking gun prompted Herndon to suspend the investigation and voluntarily dismiss the case, with the hope of resurrecting it if someone comes forward with additional information.
The motion filed today by Bentley claims the lawsuit is a one-sided and false description of events that exhibits a “sham, redundant, immaterial, impertinent and scandalous diatribe” intended to malign Bentley, Unseld and others.
“The law is real clear that when you file a motion for a notice of dismissal, you can’t use it as a sounding board for your own personal reasons,” says Nancy Schook, an attorney for Bentley. “All the other material they’ve added is irrelevant and somewhat slanderous.”
When the mailer appeared, both Bentley and Councilman Unseld quickly denounced the material and denied any connection.
“We had nothing to do with it,” Bentley told LEO last year. The former councilwoman had been a consultant on several area campaigns that used negative ads. In 2006, LEO reported that she was an unofficial advisor to the campaign of Sharon Dummitt, a white woman who was running against current Councilwoman Mary Woolridge, D-3, in a hotly contested race.
During that campaign, an ad surfaced showing a pair of African-American hands clutching cash — an insinuation that Woolridge, who is black, shouldn’t be trusted with tax dollars.
Dale Dummitt, Sharon’s husband and a former candidate for Shively City Council, told LEO at the time that the flier was Bentley’s idea.
But Schook says her client did nothing wrong during the primary election last spring and that Herndon’s dismissal is slanted and inaccurate.
“They filed this case against unknown defendants and through their investigation they realized they certainly didn’t have a case against my client,” she says. “By putting together this 9-page diatribe implying she did something, yet saying we can’t prove it, it is not fair or appropriate under the law.”
Herndon’s attorney was unavailable for comment, but in an e-mail message said he intends to file a response with the court. The hearing to strike Herndon’s findings from public record is scheduled for next Monday.
The information filed with the court earlier this week also alleges that one of Councilman Unseld’s key supporters — then-Council President Jim King, D-10 — was seen with a copy of the mailer before it was disseminated. In a signed affidavit, attorney Matt Conway, who was working as chief of staff for King at the time, stated that he saw a color copy of the mailer in his boss’s office at least a week prior to when the attack piece made its public debut.
In a released statement, however, Councilman King, who is running for mayor, denied any connection to the mailer.
“I empathize with Ken’s situation and have openly expressed to him my disapproval of the mailing and assured him that I was not involved in any way,” said King. “Not only did I not have the piece on my desk or in my possession in early May, I never saw the piece nor knew of its existence prior to its mailing.”