When Push Comes to Shove: The Judge, the Jury and Sarah Palin

Friends and acquaintances who are not lawyers (and even some who are) have expressed curiosity and confusion about the recent well-publicized decision by Judge Jed Rakoff of the Southern District of New York to dismiss the defamation lawsuit brought by former Alaska Governor Sarah Palin against the New York Times. That the judge dismissed the case is not uncommon; that he dismissed it while the jury was deliberating and allowed deliberations to continue, however, is out of the ordinary and may lead to even more issues for the inevitable appeal.

Governor Palin brought a defamation suit against the Times because of a 2017 editorial, which referred to a 2010 map from Palin’s political action committee. The map contained pictures of Democratic congressional candidates with cross-hairs superimposed over their faces; the editorial drew a link between the map and the 2011 mass shooting in Arizona, which killed 6 and wounded Congresswoman Gabby Giffords. In fact, no link was ever established. The Times ran a correction the next day that Palin argued was insufficient.

The substance of Palin’s defamation claim is certainly significant as it implicates the long standing rule that a public figure such as Palin has to prove “actual malice” on the part of the defendant in order to prevail; a standard that is very hard to meet. Palin has stated that she wants the Supreme Court to address whether the actual malice standard is still good law. It is the procedural posture of the case, however, that has generated the most debate. After a seven day trial that was the subject of intense media coverage, the jury started its deliberations on February 11, 2022. As is typical in civil cases, the jury was not sequestered although Judge Rakoff instructed the jurors not to read or listen to any reports about the case.

On February 14, while the jury was still out, Judge Rakoff announced that he would dismiss Palin’s claim on the ground that the evidence at trial did not show that the Times had acted with the requisite actual malice. He did so pursuant to Rule 50 of the Federal Rules of Civil Procedure which states in relevant part ”If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.”

Unusually, Judge Rakoff permitted the jury deliberations to continue on the ground that since he was sure the matter would be appealed, he wanted the Court of Appeals to have the benefit of both the jury verdict and his legal determination. The next day, February 15, the jury rendered its verdict in favor of the Times. Then things got even more complicated. During post-verdict inquires some jurors informed the judge that they had learned of his decision dismissing the case while they were deliberating. Apparently the leak was due to push notifications on their smart phones’ news apps. The jurors assured the judge that they would have dismissed the case anyway and Judge Rakoff took them at their word. Governor Palin and her lawyers are not so trusting, however. On February 28, 2022, they filed a motion for, among other things, reconsideration of the order of dismissal, a new trial and the right to question jurors regarding their knowledge of Judge Rakoff’s decision. They have also filed a motion to disqualify Judge Rakoff.

The tangled saga raises interesting questions. Did the disclosure to the jury of Judge’s Rakoff’s decision taint the verdict so that a new trial is warranted? Does that even matter given that Judge Rakoff had already dismissed the case as a matter of law? What happens if a new trial is ordered and the jury finds in favor of Governor Palin? Is Rakoff’s order of dismissal a nullity? The higher courts will undoubtedly have their say. In the meantime, Judge Rakoff’s March 1 opinion describing the basis for his ruling and tangentially noting that he was unfamiliar with push notifications (lucky man) is here.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Alice K. Jump who counsels clients on litigation, alternative dispute resolution and business counseling, with particular emphasis on representing clients in the financial services and real estate industries as well as educational and non-profit institutions. Ms. Jump is admitted to practice law in New York and before the United States District Courts for the Southern and Eastern Districts of New York and the United States Court of Appeals for the Second Circuit.