Defendants in ‘false attack ad’ case attempt to avoid jury trial

Michael O'Donnell, James Clendenin & Michael Capps want a lawsuit over a false attack ad against Mayor Brandon Whipple during his mayoral campaign dismissed.
Published: Feb. 14, 2022 at 6:57 PM CST
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WICHITA, Kan. (KWCH) - The lawsuit over a false attack ad against Brandon Whipple during his mayoral campaign continued with a hearing Monday at which three former local political leaders, defendants in the case, trying to keep the case from going before a jury.

Essentially the three former lawmakers, former Wichita City Council member James Clendenin, former Sedgwick County Commissioner Michael O’Donnell and former Kansas Representative Michael Capp, say there isn’t enough evidence against them to allow the lawsuit to continue. The attorney representing Whipple, now Wichita’s mayor, does not agree.

O’Donnell’s attorney addressed a false statement made in the political attack ad against Whipple during his 2019 mayoral run, namely that Whipple sexually harassed women.

“There is not one shred of evidence that Michael O’Donnell knew the statement was false and disregarded it,” O’Donnell’s attorney said.

Representing Whipple, attorney Randy Rathbun said the three men did know and intentionally spread false claims.

“There was no serious doubts about the truth of the story,” Rathbun said. “They knew it wasn’t true. It as just a lie made up to win an election.”

The claims used in the attack ad were actually made against another lawmaker, not Whipple. But the ad made it appear as if Whipple was the harasser. He was not.

The argument be defense attorneys made in court Monday claim there was no actual malice in making the claims, meaning the defendants didn’t have reason to believe they weren’t true.

“When I took their dispositions, none of them thought it was true. None of them said, ‘oh, this is true, you can rely on it,’” Rathbun said. “It was false. They all knew it was false.”

Other defense claims argued that the defamation suit from Whipple has no merit because he won the mayoral election and suffered no damage to his reputation.

“He has no evidence one way or the other, whether anyone who once respected him, has now formed a poor opinion of him because of this campaign ad,” attorney Mark Schoenhofer said.

Whipple’s attorney said it’s that claim that has no merit.

“He won his election, but I have found no law anywhere that says a clumsy effort to disparage someone’s good name is not defamation,” Rathbun said.

Capps, representing himself, made similar arguments. Clendenin’s attorney minimized his client’s involvement. But FactFinder 12 broke the story when all three defendants were captured on audio tape conspiring to cover up their involvement in the false attack ad.

The judge in this case said he will make a decision within the next seven days to to whether the defamation lawsuit against the three former lawmakers will move forward.

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