CHARLESTON - Even if a reference to a Kanawha County man as a registered sex offender wasn't mistakenly made, House Judiciary Chairwoman Carrie Webster says attorneys have broad latitude in civil cases to make defamatory, and even false, statements.
On Aug. 4, Webster filed a motion to dismiss a defamation lawsuit filed against her by South Charleston resident Richard J. "Christian" Lindroth. In the suit he filed July 7, the 30-year-old Lindroth maintained that Webster, also a Charleston attorney, falsely accused him of being a "registered sex offender."
The registered sex offender reference came in an answer Webster filed on May 15 in the course of representing Lindroth's mother-in-law, Debbie McMillian, in a lawsuit Lindroth and his wife, Angela, filed against McMillian and the state Department of Health and Human Resources. In that suit, the Lindroths accused DHHR, one of its employees, Tamica Tolliver, and the company that operates its child-support collection system, Policy Studies Inc., of improperly withholding $1,269.59 from Angela, and giving it to McMillian while she had custody of Angela's daughter, Mya Shaw, in 2006 and 2007.
Court records show, McMillian was granted temporary custody of Mya, who at the time was 2 ½ years old, after Christian was charged in July 2006 on one count each of child abuse resulting in injury, child neglect resulting in injury and malicious wounding. According to an investigation conducted by South Charleston Police and Child Protective Services, injuries on Mya's head, neck, face, arms, legs and backside she received on May 6, 2006, that led to abrasions, contusions and bruising, where consistent with abuse, and not from a fall off a toilet as Christian maintained.
Lindroth, records show, later was indicted during the May 2007 term of the Kanawha grand jury on the same charges. In September, he pleaded guilty to one count of unlawful wounding with a stipulation that Prosecutor's Office would remain silent at sentencing.
However, the Prosecutor's Office reserved the right to ask the court "whether or not the Defendant shall register with the West Virginia State Police as required by the Child Abuse and Neglect Registration Act." During Lindroth's sentencing on Feb. 28, 2008, Judge Paul Zakaib agreed with Assistant Kanawha County Prosecutor Teresa Tarr that Lindroth register with the child abuse registry, and later subsequently ordered him to 2 ½ years home confinement with credit for 162 days served.
In her dismissal motion, Webster -- who along with her law firm Bailey, Bucci and Javins is represented by L. Jill McIntyre with the Charleston law firm of Jackson Kelly -- said the reference to Lindroth being a registered sex offender "was not made even negligently, it was made by mistake and is being corrected."
Records show their dismissal motion contains a draft motion dated July 31 made to Judge Jennifer Bailey, who has the Lindroth's case against DHHR, asking that the previous motion with the sex offender statement be expunged, and a new one be entered with the corrected reference to the child abuse registry.
However, citing the state Supreme Court's ruling in the 1977 case of Collins v. Red Roof Inns, Webster said attorneys, in the course of defending their clients, enjoy an absolute privilege to make defamatory statements so long "as it has some relation to the proceeding."
"The absolute privilege held the Defendants to make damaging -- even false -- statements about Christian Lindroth is based upon a public policy of securing to attorneys as officers of the courts the utmost freedom in their efforts to secure justice for their clients," Webster said.
In addition to Webster's and Bailey, Bucci and Javin's motion, McMillian also filed her own motion to dismiss on Aug. 4. In her motion, filed with the assistance of C. Benjamin Salango, with the Charleston law firm of Preston and Salango, McMillian also raised a Collins defense, but also distanced herself from Webster.
"There is no allegation in the complaint that Plaintiff McMillian made a false or defamatory statement," she said. "There is simply no legal basis for Plaintiff to bring a claim against Defendant McMillian as a result of a misstatement contained in a motion to dismiss drafted, signed and filed by her attorney."
A hearing on both motions to dismiss is scheduled for Oct. 30 before Judge Irene C. Berger. The case was assigned to Berger after Judge James C. Stucky recused himself citing a friendship with Webster, various members of the Bailey, Bucci and Javins law firm and Richard Lindroth, Christian's father, who is representing him in both the Webster and DHHR suits.
In addition to practicing law, Webster is the lone delegate from Kanawha County's 31st District. In 2000, Webster, a Democrat, successfully won the seat after Charleston attorney Mark Hunt, who currently serves in the 30th District, vacated it to run unsuccessfully for state Senate.
In 2007, Webster was appointed chairwoman of the House Judiciary Committee by Del. Rick Thompson, D-Wayne, following his election by House Democrats as the lower chamber's new Speaker.
Kanawha Circuit Court, case numbers 07-F-260 (Lindroth criminal), 09-C-707 (Lindroth civil) and 09-C-1217 (Webster defamation)