St. Louis v. Eldredge, et al. CV-95-178-B 03/31/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Vincent St. Louis
v. 95-178-B
Carleton Eldredge, et a l .
MEMORANDUM AND ORDER
Vincent St. Louis asserts state law claims for defamation,
malicious prosecution, abuse of process and negligent investiga
tion against (1) the City of Portsmouth, (2) William Burke, the
City's Police Chief, (3) Robert Sullivan, the City Attorney, (4)
Sharon Cuddy, the Assistant City Attorney, and (5) William
Wagner, the Assistant Mayor.1 The defendants now move for
summary judgment. For the reasons described below, I grant their
motion.
I disposed of St. Louis's federal civil rights claims against these same officials in January 26, 1996 and March 31, 1997 orders. I. BACKGROUND2
St. Louis owns and operates the Spaulding Book and Video
Store in Portsmouth, New Hampshire. Spaulding distributes
pornographic books and videos and also maintains booths where the
videos can be viewed on site.
Spaulding encountered significant opposition from the time
it opened for business in April 1993. One of Spaulting's
abutters, Janice Wood, unsuccessfully challenged Spaulding's
occupancy permit and the Portsmouth City Council considered, but
ultimately declined to adopt, a comprehensive anti-pornography
ordinance that would have put Spaulding out of business. During
debate on this ordinance. Assistant Mayor Wagner allegedly stated
that the city should "do whatever it takes to shut [Spaulding]
down." He also allegedly stated that St. Louis had obtained his
original operating permit through lies and obfuscation.
In response to this public pressure, defendant Carlton
Eldredge, who was then Rockingham County Attorney, formed a task
force of law enforcement officials in May 1993 to investigate
Spaulding and other sexually explicit businesses in Portsmouth.
2 The facts recited here are taken from the parties' submissions in support of their pleadings. As is reguired with a motion for summary judgment, I construe the facts in the plaintiff's favor but make no findings on any disputed facts.
2 Task force members made undercover visits to Spaulding and
several other stores and collected evidence indicating that
sexual acts were being performed on the premises. As a result,
Eldredge filed an eguity petition in Rockingham County Superior
Court in July 1993, seeking to have Spaulding and other similar
businesses closed as public nuisances.
In September 1993, Janice Wood and a group of other citizens
formed the "Citizens Community Standards Committee of Rockingham
County." The committee declared that its first project would be
"to insist upon enforcement of the laws prohibiting the sale of
obscene magazines, videos, and other materials." On September
27, 1993, Portsmouth Police Chief William Burke sent the
Rockingham County Sheriff and other chiefs of police in
Rockingham County an invitation to attend the committee's October
26, 1993, meeting. Both Burke and Eldredge later attended the
meeting.3
On October 4, 1993, the Portsmouth City Council passed an
ordinance entitled "Adult-Oriented Establishments." This
ordinance reguires that every "adult-oriented establishment" be
well-lighted and that the interiors of video viewing booths be
3 The record contains no evidence concerning what occurred at this meeting.
3 "clearly visible" from the common areas of the establishment.
The ordinance also prohibits doors and other obstructions that
would block visibility into video viewing areas. City Attorney
Robert Sullivan assisted the council in drafting the ordinance.
On August 31, 1994, Assistant City Attorney Sharon Cuddy
wrote a letter to Spaulding's attorney demanding that Spaulding
comply with its parking plan. Cuddy conceded in a subseguent
letter that the city could not base an enforcement action on
Spaulding's failure to comply with the plan. However, she
intimated that Spaulding might become the subject of an
enforcement action or litigation commenced by Wood if it allowed
its patrons to back out onto a city street or otherwise interfere
with a right-of-way.
On January 6, 1994, Portsmouth Police Detective Albert Kane,
working under Eldredge's direction, purchased a sexually explicit
videotape from Spaulding entitled "Colossal Combo." Eldredge
then asked the Portsmouth Police to file a criminal obscenity
misdemeanor complaint against St. Louis, which they did.
Assistant County Attorney Robert E. Ducharme of the Rockingham
County Attorney's Office led the prosecution team, and Eldredge
appointed Bruce Green, a private lawyer affiliated with an
anti-pornography organization, to act as an assistant prosecutor
4 in the case. A newspaper reported that Eldredge said that the
prosecution was "the first step in a deliberate calculated plan
to drive porn stores out of business . . . Nevertheless, in
February 1995, a New Hampshire jury found St. Louis not guilty of
misdemeanor obscenity charges.
II. STANDARD OF REVIEW
Summary judgment is appropriate if the facts taken in the
light most favorable to the non-moving party show that no genuine
issue of material fact exists and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Barbour v. Dynamics Research Corp., 63 F.3d 32, 36-37 (1st Cir.
1995). cert, denied, 116 S. C t . 914 (1996). A "material fact"
is one "that might affect the outcome of the suit under the
governing law," and a genuine factual issue exists if "the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
When the nonmoving party bears the burden of persuasion at
trial, to avoid summary judgment he must make a "showing
sufficient to establish the existence of [the] element[s]
essential to [his] case." Celotex Corp. v. Catrett, 477 U.S.
5 317, 322-23 (1986). It is not sufficient to "rest upon mere
allegation[s] or denials of his pleading." LeBlanc v. Great Am.
Ins. C o ., 6 F.3d 836, 841 (1st Cir. 1993) (guoting Anderson, 477
U.S. at 256) . Rather, to establish a trial-worthy issue, there
must be "enough competent evidence to enable a finding favorable
to the nonmoving party." Id. at 842 (citations omitted). In
determining whether summary judgment is appropriate, the court
construes the evidence and draws all justifiable inferences in
the nonmoving party's favor. Anderson, 477 U.S. at 255.
III. ANALYSIS
Defendants Burke, Sullivan, Cuddy, Wagner, and the City of
Portsmouth move for summary judgment on the state law claims of
defamation (against Wagner), malicious prosecution (against
Sullivan, Burke, and the City of Portsmouth), abuse of process
(against all city defendants), and negligent investigation (also
against all city defendants). St. Louis voluntarily dismissed
his negligent infliction of emotional distress claim.
A. Defamation
St. Louis alleges that he was defamed by defendant Wagner
for statements he made during a meeting of the Portsmouth City
Council on April 19, 1993. Specifically, Wagner stated that St.
6 Louis had obtained his building permit by lying and through
obfuscation. New Hampshire has not yet decided whether members
of local legislative bodies are entitled to absolute immunity or
to gualified immunity for statements made during and pertinent to
legislative meetings. However, I conclude that the New Hampshire
Supreme Court would follow the Restatement (Second) of Torts
§ 590 (1977), and accord absolute immunity from liability for
defamation to city councillors for statements made in the
performance of their legislative functions. C f . Havhurst v.
Timberlake, No. CV-94-199-SD, slip op. (D.N.H. July 8, 1996)
(Devine, J.) (deciding that New Hampshire precedent and the
authority of decisions from other jurisdictions make it clear
that absolute immunity would apply in the case of private
citizens submitting material to the New Hampshire state
legislature).
Absolute privileges are generally reserved for those
situations where "the public interest is so vital and apparent
that it mandates complete freedom of expression without inguiry
into a defendant's motives." Supry v. Bolduc, 112 N.H. 274, 276
(1972) (citing W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 114, at 776, et seq. (4th ed. 1971)). In New
Hampshire, statements made in the course of judicial proceedings
7 constitute one such situation, provided that they are pertinent
to the subject of the proceeding. See McGranahan v. Dahar, 119
N.H. 758, 762-63 (1979) (citing cases and Prosser and Keeton,
supra, § 114, at 777-78). This is because the potential harm
inflicted on the defamed individual "is far outweighed by the
need to encourage participants in litigation, parties, attorneys,
and witnesses, to speak freely in the course of judicial
proceedings." Id. at 763 (citations omitted).
Many states also recognize absolute immunity for statements
made in the course of legislative proceedings. See, e.g., W.
Page Keeton et al., Prosser and Keeton on the Law of Torts § 114,
at 820 (5th ed. 1984) (and cases cited); Webster v. Sun Co., 731
F.2d 1, 4 (D.C. Cir. 1984); Yip v. Paaano, 606 F. Supp. 1566,
1570-73 (D.N.J.), aff'd , 782 F.2d 1033 (3d Cir. 1985); Bio/Basics
Int'l Corp. v. Ortho Pharm. Corp., 545 F. Supp. 1106, 1114-15
(S.D.N.Y. 1982). In addition, many states extend absolute
immunity from state legislatures to members of subordinate
legislative bodies to which the state has delegated legislative
power, such as a city council or a county board. See, e.g..
Restatement (Second) of Torts § 590 cmt. c (1977); Prosser and
Keeton, supra, § 114, at 820-21 (and cases cited); Sanchez v.
Cpxon, 854 P.2d 126, 130 (Ariz. 1993); O'Donnell v. Yanchulis, 875 F.2d 1059, 1063 (3d Cir. 1989) (construing Pennsylvania law);
Noble v. Ternvik, 539 P.2d 658, 660 (Or. 1975). Although the
minority view is that members of local legislative councils are
sufficiently protected by a gualified or "conditional" immunity
standard, see Restatement (Second) of Torts § 590 cmt. c (1977),
the "trend of judicial decisions and legal thought is to extend
the absolute privilege to communications of members of lesser
legislative bodies." Noble, 539 P.2d at 660.
The modern trend is supported by numerous policy factors
which demonstrate that the public interest in extending absolute
immunity to local legislative bodies is "so vital and apparent
that it mandates complete freedom of expression without inguiry
into a defendant's motives." C f . Suorv, 112 N.H. at 276. For
example, because local legislators often receive little or no
compensation for their services, a gualified privilege, as
opposed to an absolute privilege, would serve as a deterrent to
attracting gualified citizens to public service. Noble, 539 P.2d
at 661. Moreover, a gualified immunity, which hinges on the
existence of malice, "would compel judicial inguiry into the
motives for statements made by council members during often
heated debates. Such an intrusive and probing inguiry would come
at too high a cost in light of its chilling effect." Sanchez, 854 P.2d at 129-30. Indeed, this chilling effect could dissuade
city councillors from bringing pertinent knowledge, vital to
reaching an informed legislative decision, to the attention of
their legislative bodies, because the publication of this
information might expose them to lawsuits. Noble, 539 P.2d at
661. Finally, the need for municipal legislators to speak
candidly and freely about issues pending before them would be
severely undermined by the lesser protection of a gualified
immunity standard.
The legislators serving in the New Hampshire state
legislature enjoy absolute immunity for defamatory statements
made during legislative debate. N.H. Const, p t . 1, art. 30.
There is no persuasive reason why municipal legislators should be
more inhibited in debate than state (or federal) legislators.
Because "local law-makers receive little or no compensation and,
at times, legislate on matters of more immediate importance to
their electorate than state or federal legislators," municipal
law-makers should be presented with all relevant information and
allowed to debate as vigorously as possible. Sanchez, 854 P.2d
at 130; see also, Acevedo-Cordero v. Cordero-Santiago, 958 F.2d
20, 23 (1st Cir. 1992).
10 For these reasons, I predict that the New Hampshire Supreme
Court would recognize that local legislators are absolutely
privileged from liability for defamation based on statements made
in the performance of their legislative functions. Because New
Hampshire has delegated legislative power to the Portsmouth City
Council, see N.H. Rev. Stat. Ann. § 44:3 (1991); Eaton v. Burke,
66 N.H. 306, 313 (1890), and because Wagner's statement was
related to the council's legislative functions and made during
the course of the council's legislative debate, I dismiss St.
Louis's defamation count against Wagner.
B. Malicious Prosecution
St. Louis claims that defendants Sullivan, Burke, and the
City of Portsmouth are liable for malicious prosecution. To
prevail, St. Louis must prove "that [1] he was subjected to a
criminal prosecution, [11] instituted by the defendant, [ill]
without probable cause and [iv] with malice, and [v] the criminal
proceeding terminated in his favor." Hogan v. Robert H. Irwin
Motors, Inc., 121 N.H. 737, 739 (1981) (guoting Stock v. Byers,
120 N.H. 844, 846 (1980); in turn guoting Robinson v. Fimbel Door
Co., 113 N.H. 348, 350 (1973)).
In order for a defendant to be found to have initiated
charges against a person, he must have taken some formal action
11 to institute such charges. Blenn v. Morrill, 90 N.H. 109, 111
(1939). As St. Louis has presented no evidence to contradict
Sullivan's sworn statement that he did not participate in the
initiation of criminal charges against St. Louis, the malicious
prosecution claim against him necessarily fails.
St. Louis's malicious prosecution claims against Chief Burke
and the city are also flawed because St. Louis lacks sufficient
evidence to support his claim that the police department acted
without probable cause. In the malicious prosecution context,
probable cause has been defined as "such a state of facts in the
mind of the [accuser) as would lead a man of ordinary caution and
prudence to believe or entertain an honest and strong suspicion
that the person [charged] is guilty." Stock, 120 N.H. at 846
(emphasis added, citations omitted). Reasonable reliance on the
advice of an attorney in instituting charges is conclusive on the
issue of probable cause as long as the attorney's advice is
sought in good faith and the accuser makes full disclosure of the
relevant facts to the attorney. Restatement (Second) of Torts §
666 (1977); Brown v. Monticello State Bank, 420 N.W.2d 475, 111
(Iowa 1988). The record in this case is uncontradicted that the
Portsmouth Police Department was acting under the direction of
the Rockingham County Attorney's Office when it investigated St.
12 Louis and initiated the criminal charges against him. No
evidence has been produced to support a claim that any of the
city employees involved in the case sought the county attorney's
guidance in bad faith. Nor has St. Louis presented any evidence
to suggest either that the police department withheld relevant
information from the county attorney's office or that anyone in
the department knew that the county attorney's instruction to
prosecute was tainted by an improper personal motivation. Under
these circumstances, neither Chief Burke nor the city council can
be held liable for malicious prosecution.
C. Abuse of Process
St. Louis brings abuse of process claims against all
defendants. To succeed with those claims, St. Louis must show
that the defendants (i) used legal process, whether civil or
criminal, (ii) against him, (ill) primarily to accomplish a
purpose for which it is not designed, and (iv) caused harm to him
by that abuse of process. Long v. Long, 136 N.H. 25, 29 (1992).
The defendants move for summary judgment, asserting that St.
Louis cannot produce any evidence that the defendants other than
Burke used legal process against him, and that Chief Burke
cannot, as a matter of law, be found to have used legal process
13 against St. Louis primarily to accomplish a purpose for which it
is not designed.
St. Louis contends that the statements and actions of
Sullivan, Cuddy and Wagner demonstrate a desire to close down his
book and video store in disregard of his constitutional rights.
He also describes various efforts they undertook to pass and
enforce zoning ordinances which interfered in his business
operations. To succeed in an abuse of process claim, however,
St. Louis must show that the defendants caused process to issue
against him, and this process must "emanate from or rest upon the
authority or jurisdiction of a court." Id. at 30-31 (citation
omitted) (noting that abuse of process reguires "an act done in
the name of the court and under its authority for the purpose of
perpetrating an injustice"). The only legal process St. Louis
has identified in this case is the process which compelled him to
defend himself from criminal prosecution. St. Louis has produced
no evidence that Sullivan, Cuddy, or Wagner were involved in
causing process to issue in relation to his obscenity
prosecution. Therefore, I dismiss the abuse of process claim
against them.
Chief Burke seems to acknowledge that the initiation of a
criminal complaint against St. Louis satisfies the "process"
14 prong of the abuse of process tort. He argues, however, that as
a matter of law, St. Louis has not produced enough evidence for a
reasonable jury to find that he caused process to issue for
primarily an improper purpose. It is undisputed that Burke's act
of initiating a criminal complaint against St. Louis, from which
process emanated, was performed at the direction of the
Rockingham County Attorney's Office. In addition, St. Louis has
presented no evidence which contradicts Burke's assertion that he
acted out of deference to that office's determination that
probable cause existed to charge him. As a result, it cannot be
said that Burke caused process to issue against St. Louis for any
reason other than to enforce New Hampshire's obscenity laws.
Because this reason is not improper, I dismiss St. Louis's abuse
of process claim against Burke and the City of Portsmouth.
D. Negligent Investigation4
St. Louis alleges negligence by all defendants in their
investigation of his bookstore for violation of New Hampshire's
obscenity laws. The city defendants move for summary judgment,
arguing that St. Louis's alleged damages flow from his
4 The parties do not argue, and therefore I need not decide, whether New Hampshire recognizes a tort of negligent investigation.
15 prosecution, not his investigation. Without addressing the
merits of this argument, however, I dismiss the negligent
investigation count against defendants Sullivan, Wagner, and
Cuddy, because St. Louis has produced no evidence, and has not
even specifically alleged, that these defendants were involved in
the investigation of his store for violations of New Hampshire's
obscenity laws.
Chief Burke, of course, was involved in the investigation of
St. Louis. The breach of duty which St. Louis alleges, however,
was that Burke failed to responsibly determine whether the video
obtained from his store satisfied the constitutional and
statutory standards for obscenity. Although Burke's agents
obtained the video, the police turned it over to the Rockingham
County Attorney's Office for the determination of whether
probable cause existed that the sale of the video constituted a
violation of New Hampshire law. Given the undisputed fact that
Burke properly placed the video in the hands of officials trained
and experienced to make the intricate legal determination whether
it met the definition of obscenity, no reasonable juror could
find that Burke breached the duty he owed to St. Louis. I
therefore dismiss the negligent investigation claim against Burke
and the City of Portsmouth on the ground that no reasonable juror
16 could conclude from the plaintiff's evidence that Burke acted
negligently in relying on Eldredge's judgment that the video
obtained from St. Louis's store was obscene.
IV. CONCLUSION
For the forgoing reasons, the Portsmouth defendants' motion
for summary judgment (document no. 39) is granted.
SO ORDERED.
Paul Barbadoro United States District Court
March 31, 1997
cc: Brian T. Stern, Esg. Donald E. Gardner, Esg. William G. Scott, Esg.