Brown v. Greenfield, et al.

2001 DNH 039

• Court: District Court, D. New Hampshire
• Decided: March 1, 2001
• Docket: CV-00-359-M
• Status: Published

Opinion

Brown v . Greenfield, et a l . CV-00-359-M 03/01/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Julie Brown, m/n/f of Christopher B., Plaintiff

v. Civil N o . 00-359-M Opinion N o . 2001 DNH 039 Town of Greenfield, Gary Gagnon, Mitchell Foster, Peterborough Transcript, and Monadnock Ledger, Defendants

O R D E R

Julie Brown brings this suit for damages1 on behalf of her

minor son claiming, inter alia, that the Monadnock Ledger and the

Peterborough Transcript (the newspapers) caused her son harm when

they violated N.H. Rev. Stat. Ann. (RSA) ch. 169-B:37, which

makes it unlawful for the media to publish or broadcast

identifying information about minors who are arrested. The

Monadnock Ledger moves to dismiss, pursuant to Fed. R. Civ. P.

12(b)(6), for failure to state a claim upon which relief may be

1 Plaintiff initially filed a writ in Hillsborough County Superior Court. Defendants removed the case pursuant to 28 U.S.C. § 1441. granted (document n o . 5 ) . The Peterborough Transcript joins in

the Monadnock Ledger’s motion (document no. 1 0 ) .

Standard of Review

A motion to dismiss under Fed. R. Civ. P. 12(b)(6) is one of

limited inquiry, focusing not on "whether a plaintiff will

ultimately prevail but whether the claimant is entitled to offer

evidence to support the claims." Scheuer v . Rhodes, 416 U.S.

232, 236 (1974). In considering a motion to dismiss, "the

material facts alleged in the complaint are to be construed in

the light most favorable to the plaintiff and taken as admitted,

with dismissal to be ordered only if the plaintiff is not

entitled to relief under any set of facts he could prove."

Chasan v . Village District of Eastman, 572 F.Supp. 5 7 8 , 579

(D.N.H. 1983), aff'd without opinion, 745 F.2d 43 (1st Cir. 1984)

(citations omitted).

Factual Background and Discussion

In October of 1999, plaintiff’s son, who was sixteen years

old at the time, was arrested and charged with violating three

Greenfield town ordinances. The Monadnock Ledger and the

2 Peterborough Transcript, two local newspapers, disclosed the

arrest and published the boy’s name and address, as well as the

offenses charged.

Plaintiff’s claim here is based on the newspapers' alleged

violation of RSA 169-B:37, which makes it unlawful to publish or

broadcast “the name or address or any other particular

information serving to identify a juvenile arrested, without the

express permission of the court.” RSA 169-B:37(I) (Supp. 2000)

(effective Aug. 9, 1996). In arguing for dismissal, the

newspapers say that, even assuming RSA 169-B:37 applies to their

conduct,2 no private cause of action exists under that statute

that would permit plaintiff (or her son) to recover civil damages

for its violation.

In Marquay v . Eno, 139 N.H. 708, 713-15 (1995), the New

Hampshire Supreme Court described the appropriate analysis for

determining whether a state law gives rise to a private right of

action. The first matter to be considered is whether plaintiff's

asserted cause of action exists in common law. Id. at 714. If

it does, a private suit may be asserted, usually in negligence,

2 Defendants maintain that their conduct falls within a statutory exception and, therefore, they did not violate the statutory prohibition.

3 with the statutorily imposed duty serving as the accepted

standard of reasonable care (assuming plaintiff is in the class

the legislature intended to protect, and the alleged harm is the

kind intended to be prevented by the statute). Id. at 714-15;

see Bob Godfrey Pontiac, Inc. v . Roloff, 630 P.2d 840, 844-45

(Or. 1981) (cited with approval in Marquay). If the asserted

cause of action does not exist in common law, a statutory

violation will not give rise to civil liability, unless the

legislature intended to create a private right and expressed that

intent either directly or by clear implication. Marquay, 139

N.H. at 714.

Here, plaintiff correctly concedes that the common law of

New Hampshire imposes no obligation on newspapers to refrain from

printing accurate identifying information about minors. And,

plaintiff does not suggest any "special relationship" between the

newspapers and her son that might give rise to a special duty on

their part to protect him. Plaintiff also concedes that the only

penalty provided by the legislature for violation of RSA 169-B:37

is found in RSA 169-B:38, which states, in pertinent part, that

“[t]he publisher of any newspaper . . . who violates any

provision of RSA 169-B:37 shall be guilty of a misdemeanor.”

4 That i s , the legislature did not expressly create a private right

of action to recover civil damages for its violation.

S o , the dispositive question is whether the legislature, by

implication, created a private cause of action under RSA 169-

B:37. The statute provides no apparent basis for implying such

an intent, see Marquay, 139 N.H. at 713-15; Hickingbotham v .

Burke, 140 N.H. 2 8 , 30 (1995) (refusing to imply private cause of

action for violating law prohibiting sale of alcohol to persons

under 21 years of a g e ) , and plaintiff points to no legislative

history, or judicial construction, suggesting an intent by the

legislature to create a private cause of action. The

legislature’s failure to specifically preclude private causes of

action i s , of course, not sufficient to imply an intent to create

one, and the legislature’s general intent to protect children

does not imply an intent to create a private right to sue. See

e.g., Marquay at 713.

The Supreme Court declined to recognize private civil

liability based upon a general protective statute in Marquay

absent clear legislative intent, because such a course would

“represent a sharp break from the common law.” Id. at 715-16.

Because recognition of civil liability in this case would

5 similarly constitute a “sharp break from the common law,” and

indeed would establish a private right of action that New

Hampshire’s Supreme Court would likely not recognize, the court

finds that RSA 169-B:37 does not create or give rise to a private

right of action for its violation.

Conclusion

For these reasons, plaintiff cannot maintain a cause of

action against the Monadnock Ledger and the Peterborough

Transcript for violation of RSA 169-B:37. Accordingly, the

Monadnock Ledger’s motion to dismiss (document n o . 5 ) , joined by

the Peterborough Transcript (document n o . 1 0 ) , is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 1 , 2001

cc: William E . Aivalikles, Esq. John P. Sherman, Esq. John J. Cronin, III, Esq. William L. Chapman, Esq.