Macdonald v . Broderick, et a l . CV-04-278-SM 09/15/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Peter Macdonald, Plaintiff
v. Civil N o . 04-278-SM Opinion N o . 2004 DNH 137 Chief Justice John T . Broderick, J r . Governor Craig Benson, and the New Hampshire Supreme Court, Defendant
O R D E R
Pro se plaintiff, Peter Macdonald, brings this action
against New Hampshire Governor Craig Benson, the New Hampshire
Supreme Court, and its Chief Justice, John T . Broderick, J r .
Although it is not entirely clear from his complaint, it appears
that Macdonald is seeking a judicial declaration that the
Governor and the Chief Justice, acting in their official
capacities, violated various provisions of the state and federal
constitutions. He also moves the court to “remove from [his]
record” a guilty verdict that was obtained against him in state
court. Finally, it seems that Macdonald may also be seeking
$20,000 in damages, as compensation for what he says was an unlawful “fine” assessed against him by the New Hampshire
Superior Court.
Defendants move to dismiss Macdonald’s complaint on various
grounds, invoking the Rooker-Feldman doctrine, the doctrine of
absolute judicial immunity, and the Eleventh Amendment. Despite
having received defendants’ concise but persuasive motion,
Macdonald has not moved to amend his complaint. He does,
however, object to defendants’ motion.
Background
While not set forth in Macdonald’s complaint, the factual
background to this action is described in detail in defendants’
motion to dismiss. Because that filing is part of the court’s
record (document n o . 7 ) and because Macdonald does not dispute
any of the facts set forth by defendants, the court need not
recount them in detail. The court will, however, briefly
describe the salient facts.
At some point in 2001, Macdonald, who is not a lawyer,
became the attorney-in-fact for Glenn and Cynthia Bushong. See
2 generally N.H. Rev. Stat. Ann. 311:1 (“A party in any cause or
proceeding may appear, plead, prosecute or defend in his or her
proper person, that i s , pro s e , or may be represented by any
citizen of good character.”) (emphasis supplied). The Bushongs
were involved in a zoning dispute with the Town of Madbury.
Eventually, the Town petitioned the state court to enforce a
cease and desist order the Town had issued to the Bushongs,
directing them to stop using their residentially-zoned property
for commercial purposes.
The court ordered the Bushongs to comply with the cease and
desist order and directed them to reimburse the Town for
attorney’s fees it had incurred in pursuing the matter.
According to Macdonald, in awarding the Town reasonable
attorney’s fees, the state superior court judge ruled that
motions filed on behalf of the Bushongs were “vexatious,
frivolous, and unreasonable” (it appears that the Bushongs and
Macdonald were held jointly and severally liable for the fee
award and that, it would seem, is the $20,000 “fine” of which
Macdonald complains).
3 The Bushongs filed a notice of appeal with the New Hampshire
Supreme Court. Contrary to Macdonald’s assertion, however, the
court did not declare the Bushongs’ claims “moot.” Rather, it
declined to hear their appeal and, subsequently, denied their
motion to reopen, as well as their “motion to document and
correct intentional constitutional wrongs by the court” and their
“motion to enforce Part First of the New Hampshire Constitution”
- all of which were apparently drafted by the Bushongs with the
assistance of Macdonald.
Macdonald was displeased with the state courts’ resolution
of the Bushongs’ case. Accordingly, he began writing letters to
then-Governor Shaheen and, more recently, to Governor Benson,
various state legislators, and news editors. In those letters,
he claimed that the Town of Madbury, the state courts, and
various individuals had engaged in unconstitutional and criminal
conduct. Eventually, Macdonald’s complaints escalated and
included statements about the use of force and violence. See,
e.g., Affidavit of Robert Estabrook, Sergeant, Major Crime Unit
of the New Hampshire State Police, Exhibit D to defendants’
motion. In one of those letters, for example, Macdonald told
4 Governor Benson, “Innocent people get hurt during a war. I know
I have been [in a ] ‘conflict’ and received three permanent
injuries. . . . I ask you don’t make me arm my militia and take
over the state.” Id. In a subsequent e-mail sent to the
Governor, Macdonald wrote, “People become killers to express
their final belief. Our Constitution encourages us to start a
militia to stop government abuse. Do militia’s kill? I have
filed ‘Declaration of Revolution’ papers . . . Is it legal for me
to kill now?” Id.
New Hampshire State Troopers met with Macdonald and
explained to him “the concern which others had when reading such
language, and Macdonald agreed to stop” issuing the threatening
communications. Id. Nevertheless, Macdonald’s “war of words,”
as he described i t , did not end. In subsequent communications
sent to the Governor, Macdonald made reference to the
“Declaration of Revolution” documents he had “filed,” and said,
“if I have to I will arm a Militia and take over the state.”
Later, in a fairly ominous way, Macdonald informed the Governor
that, “This will be my final letter. . . . The end has arrived.
The people will learn about this case some day. You can take me
5 as a prisoner of war or allow my next move. Whatever it is? I
do not care.” Id.
Predictably, law enforcement officers sought and obtained an
arrest warrant for Macdonald and he was charged with criminal
threatening and harassment. Macdonald eventually negotiated a
plea agreement with the prosecutor under which the misdemeanor
charges against him were dismissed, and he pled guilty to a
lesser charge. It does not appear that he has challenged that
conviction (or his guilty plea) in state court.
Discussion
To the extent Macdonald moves this court to vacate his state
court conviction, his complaint constitutes a collateral attack
on a final order of the state court. It i s , therefore, barred by
the Rooker-Feldman doctrine. See Rooker v . Fidelity Trust Co.,
263 U.S. 413, 416 (1923); District of Columbia Court of Appeals
v . Feldman, 460 U.S. 4 6 2 , 476 (1983). See also Sheehan v . Marr,
207 F.3d 3 5 , 39-40 (1st Cir. 2000). The same is true with regard
to the claims by which Macdonald seeks to have this court remedy
6 the wrongs he says were the product of the state court decisions
in the Bushongs’ civil action.
With regard to Governor Benson, Macdonald alleges that the
Governor “locked him up,” in violation of “Part First of the NH
Const. and the U.S. Const.” Complaint at para. 3 . Presumably,
Macdonald is referring to his arrest for criminal threatening and
harassment. To the extent Macdonald actually has any claim
stemming from his arrest - a dubious proposition, given the fact
that the arrest was supported by a warrant issued by a neutral
and detached magistrate (a state district court judge) - it would
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Macdonald v . Broderick, et a l . CV-04-278-SM 09/15/04 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Peter Macdonald, Plaintiff
v. Civil N o . 04-278-SM Opinion N o . 2004 DNH 137 Chief Justice John T . Broderick, J r . Governor Craig Benson, and the New Hampshire Supreme Court, Defendant
O R D E R
Pro se plaintiff, Peter Macdonald, brings this action
against New Hampshire Governor Craig Benson, the New Hampshire
Supreme Court, and its Chief Justice, John T . Broderick, J r .
Although it is not entirely clear from his complaint, it appears
that Macdonald is seeking a judicial declaration that the
Governor and the Chief Justice, acting in their official
capacities, violated various provisions of the state and federal
constitutions. He also moves the court to “remove from [his]
record” a guilty verdict that was obtained against him in state
court. Finally, it seems that Macdonald may also be seeking
$20,000 in damages, as compensation for what he says was an unlawful “fine” assessed against him by the New Hampshire
Superior Court.
Defendants move to dismiss Macdonald’s complaint on various
grounds, invoking the Rooker-Feldman doctrine, the doctrine of
absolute judicial immunity, and the Eleventh Amendment. Despite
having received defendants’ concise but persuasive motion,
Macdonald has not moved to amend his complaint. He does,
however, object to defendants’ motion.
Background
While not set forth in Macdonald’s complaint, the factual
background to this action is described in detail in defendants’
motion to dismiss. Because that filing is part of the court’s
record (document n o . 7 ) and because Macdonald does not dispute
any of the facts set forth by defendants, the court need not
recount them in detail. The court will, however, briefly
describe the salient facts.
At some point in 2001, Macdonald, who is not a lawyer,
became the attorney-in-fact for Glenn and Cynthia Bushong. See
2 generally N.H. Rev. Stat. Ann. 311:1 (“A party in any cause or
proceeding may appear, plead, prosecute or defend in his or her
proper person, that i s , pro s e , or may be represented by any
citizen of good character.”) (emphasis supplied). The Bushongs
were involved in a zoning dispute with the Town of Madbury.
Eventually, the Town petitioned the state court to enforce a
cease and desist order the Town had issued to the Bushongs,
directing them to stop using their residentially-zoned property
for commercial purposes.
The court ordered the Bushongs to comply with the cease and
desist order and directed them to reimburse the Town for
attorney’s fees it had incurred in pursuing the matter.
According to Macdonald, in awarding the Town reasonable
attorney’s fees, the state superior court judge ruled that
motions filed on behalf of the Bushongs were “vexatious,
frivolous, and unreasonable” (it appears that the Bushongs and
Macdonald were held jointly and severally liable for the fee
award and that, it would seem, is the $20,000 “fine” of which
Macdonald complains).
3 The Bushongs filed a notice of appeal with the New Hampshire
Supreme Court. Contrary to Macdonald’s assertion, however, the
court did not declare the Bushongs’ claims “moot.” Rather, it
declined to hear their appeal and, subsequently, denied their
motion to reopen, as well as their “motion to document and
correct intentional constitutional wrongs by the court” and their
“motion to enforce Part First of the New Hampshire Constitution”
- all of which were apparently drafted by the Bushongs with the
assistance of Macdonald.
Macdonald was displeased with the state courts’ resolution
of the Bushongs’ case. Accordingly, he began writing letters to
then-Governor Shaheen and, more recently, to Governor Benson,
various state legislators, and news editors. In those letters,
he claimed that the Town of Madbury, the state courts, and
various individuals had engaged in unconstitutional and criminal
conduct. Eventually, Macdonald’s complaints escalated and
included statements about the use of force and violence. See,
e.g., Affidavit of Robert Estabrook, Sergeant, Major Crime Unit
of the New Hampshire State Police, Exhibit D to defendants’
motion. In one of those letters, for example, Macdonald told
4 Governor Benson, “Innocent people get hurt during a war. I know
I have been [in a ] ‘conflict’ and received three permanent
injuries. . . . I ask you don’t make me arm my militia and take
over the state.” Id. In a subsequent e-mail sent to the
Governor, Macdonald wrote, “People become killers to express
their final belief. Our Constitution encourages us to start a
militia to stop government abuse. Do militia’s kill? I have
filed ‘Declaration of Revolution’ papers . . . Is it legal for me
to kill now?” Id.
New Hampshire State Troopers met with Macdonald and
explained to him “the concern which others had when reading such
language, and Macdonald agreed to stop” issuing the threatening
communications. Id. Nevertheless, Macdonald’s “war of words,”
as he described i t , did not end. In subsequent communications
sent to the Governor, Macdonald made reference to the
“Declaration of Revolution” documents he had “filed,” and said,
“if I have to I will arm a Militia and take over the state.”
Later, in a fairly ominous way, Macdonald informed the Governor
that, “This will be my final letter. . . . The end has arrived.
The people will learn about this case some day. You can take me
5 as a prisoner of war or allow my next move. Whatever it is? I
do not care.” Id.
Predictably, law enforcement officers sought and obtained an
arrest warrant for Macdonald and he was charged with criminal
threatening and harassment. Macdonald eventually negotiated a
plea agreement with the prosecutor under which the misdemeanor
charges against him were dismissed, and he pled guilty to a
lesser charge. It does not appear that he has challenged that
conviction (or his guilty plea) in state court.
Discussion
To the extent Macdonald moves this court to vacate his state
court conviction, his complaint constitutes a collateral attack
on a final order of the state court. It i s , therefore, barred by
the Rooker-Feldman doctrine. See Rooker v . Fidelity Trust Co.,
263 U.S. 413, 416 (1923); District of Columbia Court of Appeals
v . Feldman, 460 U.S. 4 6 2 , 476 (1983). See also Sheehan v . Marr,
207 F.3d 3 5 , 39-40 (1st Cir. 2000). The same is true with regard
to the claims by which Macdonald seeks to have this court remedy
6 the wrongs he says were the product of the state court decisions
in the Bushongs’ civil action.
With regard to Governor Benson, Macdonald alleges that the
Governor “locked him up,” in violation of “Part First of the NH
Const. and the U.S. Const.” Complaint at para. 3 . Presumably,
Macdonald is referring to his arrest for criminal threatening and
harassment. To the extent Macdonald actually has any claim
stemming from his arrest - a dubious proposition, given the fact
that the arrest was supported by a warrant issued by a neutral
and detached magistrate (a state district court judge) - it would
lie against the officer(s) who effected his arrest and/or the
officer who submitted the affidavit in support of his arrest.
Even reading the allegations of Macdonald’s complaint
liberally, nothing suggests a valid cause of action against the
Governor stemming from the events described in the complaint. At
a minimum, this is certain: the complaint fails to articulate
one. To the extent Macdonald has attempted to set forth the
elements of a claim against the Governor under 42 U.S.C. § 1983,
the Governor, in his official capacity, is entitled to Eleventh
7 Amendment immunity. See Will v . Michigan Dep’t of State Police,
491 U.S. 5 8 , 71 (1989) (“Obviously, state officials literally are
persons. But a suit against a state official in his or her
official capacity is not a suit against the official but rather
is a suit against the official’s office. As such, it is no
different from a suit against the State itself.”) (citation
omitted).
Macdonald’s official capacity claims against Chief Justice
Broderick are also precluded by the Eleventh Amendment. And, to
the extent his complaint might arguably be read to assert claims
against the Chief Justice in his individual capacity, such claims
are barred by the doctrine of absolute judicial immunity, which
shields the Chief Justice not only from liability for damages,
but provides immunity from suit as well.
Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial.
Rather, our cases make clear that the immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial
8 actions, i.e., actions not taken in the judge’s judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.
Mireles v . Waco, 502 U.S. 9, 11-12 (1991) (citations omitted).
All of the acts which are the subject of Macdonald’s complaint
were unarguably taken by the Chief Justice (as well as the other
state court judges referenced by Macdonald) in a judicial
capacity, and none was taken in the complete absence of all
jurisdiction. See Stump v . Sparkman, 435 U.S. 349, 356-57 (1978)
(“A judge will not be deprived of immunity because the action he
took was in error, was done maliciously, or was in excess of his
authority; rather, he will be subject to liability only when he
has acted in the clear absence of all jurisdiction.”) (citation
and internal punctuation omitted).
And, finally, Macdonald’s claims against the New Hampshire
Supreme Court - a state entity - are barred by the Eleventh
Amendment. See Will, 491 U.S. at 70-71.
9 Conclusion
For the foregoing reasons, as well as those set forth in
defendants’ memorandum, plaintiff’s complaint fails to state a
viable cause of action against any of the defendants. See
generally Fed. R. Civ. P. 12(b)(6). Defendants’ motion to
dismiss (document n o . 7 ) i s , therefore, granted. Plaintiff’s
motion for speedy trial (document n o . 5 ) , his motion for open
court hearing (document n o . 9 ) , his motion for summary judgment
(document n o . 1 0 ) , and his motion to preserve the United States
Constitution (document n o . 1 1 ) 1 are all denied.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge
September 1 5 , 2004
1 Although plaintiff captioned his motion as one seeking “to preserve the United States Constitution,” it actually seeks the same substantive relief as that sought in plaintiff’s complaint. It i s , for that reason, denied.
10 cc: Peter Macdonald Daniel J. Mullen, Esq.