130 F.3d 246 (6th Cir. 1997), 96-6207, Barrett v. Harrington

Docket Nº:96-6207.
Citation:130 F.3d 246
Party Name:Frank BARRETT, Plaintiff-Appellee, v. Nancy I. HARRINGTON, a/k/a Penny Harrington, Defendant-Appellant.
Case Date:November 20, 1997
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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130 F.3d 246 (6th Cir. 1997)

Frank BARRETT, Plaintiff-Appellee,

v.

Nancy I. HARRINGTON, a/k/a Penny Harrington, Defendant-Appellant.

No. 96-6207.

United States Court of Appeals, Sixth Circuit

November 20, 1997

Argued Aug. 5, 1997.

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[Copyrighted Material Omitted]

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John E. Herbison (argued and briefed), Nashville, TN, for Plaintiff-Appellee.

Barry L. Howard (briefed), Gracey, Ruth, Howard, Tate & Sowell, Nashville, TN, Aaron Wyckoff (argued and briefed), Winston N. Harless (briefed), Lewis, King, Krieg, Waldrop & Catron, Nashville, TN, for Defendant-Appellant.

Before: KEITH and SUHRHEINRICH, Circuit Judges; ROSEN, District Judge. [*]

OPINION

ROSEN, District Judge.

I. INTRODUCTION

In a complaint filed September 21, 1995, Plaintiff/Appellee Frank Barrett alleges, pursuant to the provisions of 42 U.S.C. § 1983, that he is entitled to recover damages from the Defendant/Appellant, Judge Nancy ("Penny") Harrington. Mr. Barrett claims that Judge Harrington violated his First and Fourteenth Amendment rights by falsely accusing him of stalking her in retaliation for his efforts in revealing her allegedly illegal conduct as an elected official. Mr. Barrett also asserts a pendent state law claim of defamation under Tennessee common law.

On February 14, 1996, Judge Harrington filed a motion to dismiss, as well as a motion for summary judgment claiming in both that she was entitled to either absolute or qualified immunity. Also on February 14, 1996, Barrett moved for partial summary judgment on the merits of his claims.

On July 30, 1996, the District Court determined Defendant's motion to dismiss was moot, having effectively consolidated it with the motion for summary judgment. The court then granted Judge Harrington's motion for summary judgment in part, finding she was entitled to qualified immunity on Barrett's claim of due process violations, but denied her motion with respect to Plaintiff's First Amendment claim. The court also denied Barrett's motion for summary judgment, finding that genuine issues of material

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fact precluded the entry of judgment on the merits of Plaintiff's complaint. We now AFFIRM in part and REVERSE in part.

II. FACTUAL BACKGROUND

This action arises from a well-publicized conflict between the parties. Plaintiff/Appellee Frank Barrett is the owner of a roofing business which, at the time, was involved in an ongoing controversy with the Department of Codes Administration of the Metropolitan Government of Nashville and Davidson County regarding work permits for various projects. Defendant/Appellant Nancy ("Penny") Harrington is an elected Metropolitan General Sessions Judge of Nashville and Davidson County, primarily responsible for the environmental docket.

In September 1994, Barrett appeared before Judge Harrington in Environmental Court regarding two violations of the Environmental Codes. At the conclusion of a bench trial, Judge Harrington rendered judgments in favor of the Codes Department and against Barrett. Mr. Barrett alleges that at the hearing Defendant was "unusually arrogant and irascible ... and failed to show appropriate respect for litigants appearing before her." (Joint Appendix, p. 30). Based on these observations, Plaintiff determined that Defendant was not "fit ... to hold public office" and decided to investigate her in order to advocate opposition to her re-election. (J.A., p. 30).

During the course of his investigation, Barrett visited various state and local government offices to gather information regarding Judge Harrington. In the course of this investigation, Mr. Barrett discovered that Judge Harrington had dismissed parking tickets that had been issued to her and her husband.

On February 1, 1995, Mr. Barrett visited the Davidson County Election Commission Offices to request documents about Judge Harrington. While requesting these documents from Joan Nixon, an executive secretary to the Election Commission, Barrett expressed his strong feelings about Judge Harrington and made profane statements. Barrett's remarks and his conduct apparently made Ms. Nixon concerned for Judge Harrington's safety. Although Ms. Nixon did not have a personal relationship with Judge Harrington, Ms. Nixon called Judge Harrington and notified her of Barrett's behavior.

At approximately this same time, Larry Brinton, a television news reporter, called Judge Harrington and told her that Mr. Barrett was investigating her and urging him to do a news story about her concerning the dismissal of the parking tickets. Mr. Brinton also told Judge Harrington that Barrett was very hostile towards her and suggested that she should be concerned for her safety because of Barrett's behavior and demeanor. (The record does not reflect how Judge Harrington responded to Mr. Brinton).

Defendant asserts she became fearful of Barrett after she was informed that he exhibited violent and threatening behavior during his investigation in various public offices. (J.A., pp. 257-58). On February 9, 1995, using her judicial letterhead, Judge Harrington wrote separate letters to State District Attorney General Victor S. Johnson, III and United States Attorney John Roberts, requesting that they investigate Barrett because he was "attempting to obstruct justice by harassing [her] and [her] family," including requiring her to recuse herself from future cases against him, which were likely to arise due to his ongoing dispute with the Codes Department. (J.A., pp. 135-36). Harrington explained in her deposition that she used her judicial letterhead because she "was a judge asking for protection from a disgruntled litigant." (J.A., p. 273). During this same time, Harrington retained Todd Campbell to represent her "in relation to further investigation of possible criminal activity by Mr. Barrett and, possibly, civil suits against him." (J.A., p. 328; J.A., p. 276).

Despite pursuing criminal sanctions against Mr. Barrett, Judge Harrington later admitted in deposition that "[s]omewhere about the same time" that she wrote to state and federal prosecuting attorneys requesting an investigation of the Plaintiff, she reviewed the applicable state stalking statute to determine whether the Plaintiff's conduct fit the

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prohibitions of the statute and determined that it did not. (J.A., pp. 268-70). 1

Apparently in response to Harrington's letter to District Attorney General Johnson, Detective Anna-Maria Williams of the Metropolitan Police Department called Harrington on February 13, 1995 and questioned her about Barrett's actions. Later that same day, Detective Williams filed a police report which listed Harrington as a victim of stalking and Barrett as the suspect. (J.A., pp. 340-41). Also on this day, Barrett made certified copies of the parking tickets issued to Harrington and her husband that she had dismissed. The next day, Detective Williams questioned Barrett about his recent conduct and advised him that he was being investigated for stalking Judge Harrington. (J.A., p. 174). 2

On February 28, 1995, Harrington, again using her judicial stationary, wrote to Richard H. Dinkins, Chairman of the Davidson County Election Commission, regarding Barrett's attempts to have Nixon fired upon his learning that Nixon had called Harrington about his conduct at the Elections Commission office. (J.A., pp. 259-60, 328). In that letter, Harrington told Dinkins that "Mr. Barrett appears to be 'investigating' or 'stalking' me, depending on one's point of view, as a result of my finding him in violation of the Metro ordinance for refusing to obtain a permit for roofing for hire and refusing to obey a 'stop work order.' " (J.A., p. 328). Harrington also advised Dinkins that she had contacted District Attorney General Johnson and U.S. Attorney Roberts, and that she had retained Mr. Campbell. (J.A., p. 328).

Thereafter, at a March 1995 General Sessions Judges' meeting, in front of all the other judges, Harrington told Judge William E. Higgins that he should tell his "friend Frank Barrett" to "watch [his] step," because she had retained Todd Campbell to represent her against Barrett, emphasizing that Barrett was "stalking" her and that Mr. Campbell was a prominent lawyer whose clients included Vice-President Al Gore. (J.A., pp. 352, 296-98). Harrington further stated that she had pursued this matter with her "friends" at "8th and Broad," apparently a reference to the federal courthouse. (J.A., pp. 350-52). A few weeks later, Harrington and Higgins encountered each other on the third floor of the Metropolitan Courthouse. Harrington, in front of others, loudly told Higgins that Plaintiff was stalking her and shouted, "Your friend Frank Barrett is a fruitcake." (J.A., p. 353). Higgins described Harrington's demeanor in making each of these statements as "very angry and red-faced and angry at me, sort of venomous." (J.A., p. 354).

In August/September 1995, Barrett gave the information about the parking tickets Harrington had dismissed on behalf of herself and her husband to a reporter at the Nashville Banner. This revelation resulted in unfavorable media attention for Harrington. (J.A., pp. 174, 181). On September 7, 1995, Harrington met with Toni Dew, a reporter for the Nashville Banner newspaper, who had requested an appointment to interview her. During this interview, which took

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place in the Judge's office behind the jail docket bench, Harrington discussed the parking tickets and stated that Barrett had been stalking, harassing, and otherwise intimidating her. (J.A., pp. 303-11). Harrington's statements appeared in Toni Dew's September 19, 1995 column in the Nashville Banner. (J.A., pp. 310, 345). 3

On September 12, 1995, Mr. Jay Korff, a reporter for WKRN Channel 2 News, showed...

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