The opinion
RENDERED: DECEMBER 19, 2025; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2024-CA-0300-MR
MICHAEL O’CONNELL APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE JESSICA E. GREEN, JUDGE
ACTION NO. 18-CI-002810
CHRISTOPHER THIENEMAN APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
MCNEILL, JUDGE: This is a defamation case arising from a speech given by
Appellant, the Jefferson County Attorney, Michael O’Connell (“O’Connell”).
Appellee is Chris Thieneman (“Thieneman”). Thieneman was convicted of
second-degree Wanton Endangerment in 2015 for strangling a female victim. On
May 1, 2018, the Jefferson County Law Library sponsored a celebration of Law
Day, with an outdoor event held at a park in downtown Louisville, Kentucky.
O’Connell was one of several speakers. A truck was parked nearby with a
billboard stating, “Vote Out Mike O’Connell, Louisville’s Sexual Predator
Protector paid for by victims of the youth explorer program,” with Thieneman
listed as treasurer. During his Law Day speech, O’Connell made the following
remarks about Thieneman:
He was convicted by a jury of his peers, a conviction
which was upheld by the courts of this county[;]
therefore he’s obviously free to speak in the manner he
wants, but my office, and my prosecutors, the women in
my office will not be intimidated by the speech of Mr.
Thieneman. He is a sexual predator, he was convicted of
trying to strangle his then-girlfriend, and the women in
this community should be wary and be prepared to not
come in contact with him, ever. He is a danger to this
community, and to the women in this community, and
each one should make sure they take every precaution
they can to protect themselves from this sexual predator.
There. That’s my right of free speech, and my office
won’t be intimidated by this. And, between now and
whenever, and as long as he wants to keep that up, I’ll
call it exactly what it is, a sexual, uh excuse me, a
domestic violence perpetrator, and an abuser of women,
and he strangles women, and was convicted by a jury,
and upheld by the appeals court. Thank you very much.
Thieneman filed a defamation suit against Mr. O’Connell in Jefferson Circuit
Court based solely on these remarks.1 O’Connell filed a motion to dismiss based
on immunity, which the court denied. A previous panel of this Court affirmed.
1
On page nine of his Appellee brief, Thieneman also relies solely on this speech, and does not
make any additional allegations based on anything that was produced during discovery.
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O’Connell v. Thieneman, 616 S.W.3d 704, 706 (Ky. App. 2020) (O’Connell I). In
so holding, the Court engaged in an extensive discussion of governmental
immunity.
The Kentucky Supreme Court denied O’Connell’s motion for
discretionary review. On remand, the parties engaged in discovery. Years later,
O’Connell filed a motion for summary judgment. He again argued that he was
entitled to immunity. The circuit court denied his motion and specifically held that
the legal element of “malice” was a fact question remaining for the jury.
O’Connell appeals to this Court as a matter of right. For the following reasons, we
REVERSE.
STANDARD OF REVIEW
This interlocutory appeal is permissible pursuant to Breathitt County
Board of Education v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). A motion for
summary judgment should be granted “if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” CR2 56.03. “[O]nce the
material facts are resolved, whether a particular defendant is protected by official
immunity is a question of law, which we review de novo.” Rowan Cnty. v. Sloas,
2
Kentucky Rules of Civil Procedure.
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201 S.W.3d 469, 475 (Ky. 2006), as corrected (Sep. 26, 2006) (citations omitted).
With these standards in mind, we return to O’Connell I.
ANALYSIS
The elements of a defamation claim are as follows:
“(a) a false and defamatory statement concerning
another; (b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of
the publisher; and (d) either actionability of the statement
irrespective of special harm or the existence of special
harm caused by the publication.” Toler v. Süd-Chemie,
Inc., 458 S.W.3d 276, 282 (Ky. 2014), as corrected (Apr.
7, 2015) (citation and footnote omitted). Thus, in
addition to proving each of these elements,
O’Connell’s qualified official immunity imposes upon
Thieneman the additional burden of showing that the
Law Day remarks were made, not negligently, but
maliciously, i.e., in bad faith.
O’Connell I, 616 S.W.3d at 709 (emphasis added). We are bound by this decision
under our law of the case doctrine. Brooks v. Lexington-Fayette Urb. Cnty. Hous.
Auth., 244 S.W.3d 747, 753 (Ky. App. 2007). Therefore, we need not address any
of the substantive elements of defamation that may be at issue in the underlying
suit. Rather, the question before us is clear—whether O’Connell’s comments were
made “maliciously, i.e., in bad faith.” The answer to this question, while not
binding on this Court, has been aptly stated as follows:
I concede that O’Connell conflated the nature of
Thieneman’s offenses with the allegations posted on the
billboard—he twice referred to Thieneman as a “sexual
predator.” This was clearly an inaccurate statement of
the facts surrounding the conviction. But O’Connell
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specifically noted the facts supporting the conviction and
he corrected his prior mischaracterization of
Thieneman’s actions near the close of his remarks.
O’Connell I, 616 S.W.3d at 714 (Maze, J., concurring).
To be clear, the present issue was ripe for adjudication by the circuit
court. Meinhart v. Louisville Metro Gov’t, 627 S.W.3d 824, 829–30 (Ky. 2021).
See also Sheehy v. Volentine, 706 S.W.3d 229 (Ky. 2024); Dickerson v. Bower,
___ S.W.3d ___, 2025 WL 568557 (Ky. App. 2025), discretionary review denied
(Dec. 10, 2025).3 As Justice Nickell pointed out in Meinhart:
Once the officer or employee has shown prima facie that
the act was performed within the scope of his/her
discretionary authority, the burden shifts to the plaintiff
to establish by direct or circumstantial evidence that the
discretionary act was not performed in good faith.
Meinhart, 627 S.W.3d at 835 (internal quotation marks and citations omitted).
And as the Kentucky Supreme Court more recently mandated in Sheehy:
In this capacity as a factfinder, the trial court must have
the concomitant authority to judge credibility and give
weight to the evidence. Unless a factual conclusion is
clearly erroneous, neither the Court of Appeals nor this
Court has authority to set those conclusions aside.
3
As O’Connell correctly notes, this case is designated for publication, and although it has
become final, it has not yet been assigned a citation in the South Western Reporter. Therefore, it
is cited pursuant to Kentucky Rule of Appellate Procedure (RAP) 41 as persuasive authority
only.
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Sheehy, 706 S.W.3d at 244. Lastly, Dickerson appears to be the most recent
decision of this Court applying Meinhart and Sheehy. Dickerson concludes that
the argument that a jury should determine whether the evidence demonstrates a
malicious intent was “not well-taken and is expressly rejected by our Supreme
Court.” Dickerson, ___ S.W.3d ___, 2025 WL 568557, at *7.
In consideration of these cases, we have been presented with nothing
that would necessitate a jury to determine whether O’Connell acted in bad faith.4
O’Connell’s Law Day speech indicates that he misspoke, and then almost
immediately corrected himself. There was no malice here as a matter of law.
Therefore, O’Connell is entitled to qualified immunity as a matter of law under the
extremely narrow and undisputed facts of this case.5
CONCLUSION
For the foregoing reasons, the order of the Jefferson Circuit Court is
REVERSED.
ALL CONCUR.
4
O’Connell’s motion for summary judgment asserts that “there have been seven motions to
compel and discovery orders against Thieneman in the past year in attempts to prepare the case
for trial.” This further reinforces the fact that Thieneman has had three additional years since the
rendition of O’Connell I to prove malice but has failed to do so.
5
Nothing herein alters this Court’s decision or application of sovereign immunity in O’Connell
I. Rather, our decision is based solely on the application of qualified immunity.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Joseph Klausing Alan J. Statman
Louisville, Kentucky Cincinnati, Ohio
Kristie B. Walker
Richard Elder
Louisville, Kentucky
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