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Published Sunday, May 25, 2008 in Local

Documents in Schlumper county lawsuit now before federal judge

By Sarah Fay Campbell

The Times-Herald

Documents in the lawsuit filed by Coweta County Commissioner Leigh Schlumper against the county and fellow commissioners have now been submitted to Federal District Judge Jack Camp.

The documents were submitted by the clerk's office of U.S. District Court on Friday.

Camp will now decide whether or not to grant Coweta County's motion to dismiss the case.

If the motion is granted, the case is over. If the motion is denied, Camp will then begin to consider the merits of the case.

Last week, attorneys for Coweta County filed the last motion in the case, a response to Schlumper's response to the motion to dismiss.

Schlumper filed the suit on Feb. 22, claming gender discrimination was behind her being denied her turn as chairman of the county commission. She also said that Chairman Tim Higgins and Second District Commissioner Tim Lassetter engaged in a pattern of slander and libel against her.

Attorney Benton Mathis, representing Coweta County, filed a motion to dismiss Schlumper's suit on April 11. Schlumper's response was filed April 28.

The most recent filing was May 14.

In the response, Mathis says that multiple legal precedents work against Schlumper's claims, both regarding the gender discrimination and the slander and libel claims.

In maintaining that the suit should be dismissed, Mathis states that Schlumper's attorney, Lee Parks, used the wrong case law in determining the "pleading standard."

"A complaint's 'factual allegations must be enough to raise a right to relief above the speculative level' and to 'plausibly suggest' a violation of the law," Mathis states in the response. To survive a motion to dismiss, "a plaintiff must offer more than 'labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."

When it comes to Schlumper being denied her turn as Coweta County Commission chairman, Mathis refers to a little-known piece of local legislation passed in 1999. The legislation states that the commissioners will vote to elect the chairman in January of each odd-numbered year.

Though that has, theoretically, been the law for nearly nine years, it has never been followed. Though Higgins was elected chairman in 2007, he was also elected chairman in 2008 which is, of course, an even-numbered year.

Despite the fact that the law has never been followed, Mathis states that Schlumper "was not even eligible to hold the position of chairperson in 2008."

He further states that Schlumper has "failed to prove that she was a qualified candidate for the position of chairperson in 2008."

Mathis says that Lassetter is entitled to qualified immunity because "in light of applicable law, a reasonable official would not have understood that plaintiff was even eligible for the position of chairperson in 2008, much less that he could violate the equal protection clause by confirming the term of the incumbent chairperson."

Mathis also says that Schlumper "does not and cannot possibly claim" that the allegations of an extramarital affair by Schlumper with Coweta County Fire Department Deputy Chief Jay Jones "had anything whatsoever to do with the commission's confirmation of Commissioner Higgins' two-year term which, as set forth in detail above, was consistent with and, in fact, mandated by local law."

Mathis then addresses Schlumper's claims of libel and slander.

To qualify as slander, an allegation must conform to a set of standards.

Schlumper uses the standard of accusing someone of committing a crime. Because adultery is a crime punishable by law, Higgins and Lassetter committed slander by stating that she was committing adultery with Jones, Schlumper said in her suit.

Mathis cites the precedent of Powell v. State, a 1998 case which decriminalized private, consensual sex between two adults.

"The clear import of Powell is that adultery is no longer a crime punishable by law and therefore, even if the individual defendants made the statements imported to them by plaintiff's complaint, she still fails to state claim for slander per se."

Despite the court case, the Official Code of Georgia, Annotated, still states that adultery is a crime. O.C.G.A. 16-6-9 says "a married person commits the offense of adultery when he voluntarily has sexual intercourse with a person other than his spouse and, upon conviction thereof, shall be punished as for a misdemeanor."

Additionally, Mathis states that legal precedent finds that a plaintiff must establish "actual words" spoken by a defendant, and that the claim could not rest on a witness being "led to believe" an untruth.

"Because plaintiff does not identify what statements, if any, were made by the individual defendants, plaintiff's slander claim should be dismissed," Mathis says. He further states that Schlumper does not show enough evidence of a conspiracy to commit libel against her.

Finally, Mathis states that the commissioners are entitled to official immunity, regardless. For Higgins and Lasseter not to have immunity, it must be shown that they acted with actual malice.

"She must offer facts that plausibly suggest that the individual defendants deliberately attempted to injure her," Mathis states. Yet Schlumper "has utterly failed to do so."

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