Abbott v. Gordon, C.A. No. 04C-09-055 PLA (Del. Super. 3/27/2008)
| Decision Date | 27 March 2008 |
| Docket Number | C.A. No. 04C-09-055 PLA. |
| Parties | RICHARD L. ABBOTT, Plaintiff, v. THOMAS P. GORDON, individually and as County Executive of New Castle County, SHERRY L. FREEBERY, individually and as Chief Administrative Officer of New Castle County, and NEW CASTLE COUNTY, a political subdivision of the State of Delaware, Defendants. |
| Court | Delaware Superior Court |
Richard L. Abbott, Esquire, Hockessin, Delaware, Pro Se.
Charles E. Butler, Esquire, Wilmington, Delaware, Attorney for Defendants Thomas P. Gordon & Sherry L. Freebery.
Collins J. Seitz, Jr., Esquire, and Matthew F. Boyer, Esquire, CONNOLLY BOVE LODGE & HUTZ LLP, Wilmington, Delaware, Attorneys for Defendant New Castle County.
After losing his bid for reelection to the New Castle County Council in the 2002 Republican Primary on September 7, 2002, Plaintiff Richard L. Abbott, Esquire ("Abbott") filed a complaint on September 7, 2004 against (1) Thomas P. Gordon ("Gordon"), the then-New Castle County Executive; (2) Sherry L. Freebery ("Freebery"), the Chief Administrative Officer of New Castle County; and (3) New Castle County (the "County") (collectively, "Defendants"). In his Complaint, Abbott alleges that he has a right to hold office under the United States and Delaware Constitutions, which right was denied by virtue of the actions of his political opponents who defeated his initiatives and opposed his candidacy. He asserts claims for deprivation of his civil rights under 42 U.S.C. § 1983, based on alleged violations of his First Amendment and Equal Protection rights, a civil conspiracy claim, and a claim of libel and slander.1 Abbott seeks damages consisting of the salary and benefits he would have received had he won the primary and the general election in 2002, on the theory that Defendants' conduct cost him victory in the primary, which allegedly would have been "tantamount to victory" in the general election.
Shortly after the filing of the Complaint, Defendants moved to stay this action pending the resolution of criminal proceedings against Gordon and Freebery in Federal District Court. The stay was granted by the Superior Court until the criminal actions were concluded. On September 10, 2007, the United States District Court for the Eastern District of Pennsylvania entered a final judgment sentencing Freebery to time served and a fine of $250.00, based on her guilty plea to the felony of making a false statement to a federally insured bank. The following day, the same court sentenced Gordon to probation and a fine of $250.00, based on his guilty plea to two tax record-keeping misdemeanors. The Court dismissed all other criminal counts against the individual defendants, including counts upon which Abbott relied in this Complaint.
Now before the Court are Defendants' Motions to Dismiss the Complaint. After reviewing Abbott's Complaint and the extensive briefing in this matter, the Court concludes that Abbott has not stated a single claim for which this Court may grant him relief. Not only are his counts poorly pleaded, but Abbott fails to support any of his claims with any case law, no has he distinguished contradictory case law or offered any legal basis in support of the relief he seeks. For reasons explained more fully hereafter, Defendants' Motion to Dismiss is granted.
Abbott served as an elected member of the New Castle County Council for a single term that began on November 10, 1998 and expired on November 6, 2004. He alleges that, during his term, he took positions that "placed him at odds" with Gordon and Freebery (the "individual defendants").2 According to Abbott, Gordon and Freebery had "no tolerance for dissent or disagreement" and planned to control both the Executive and Legislative Branches of the County government to benefit themselves rather than the County citizens.3 Under Abbott's view of the facts, the individual defendants retaliated against him by, inter alia, conspiring to vote against him.4 They did not similarly attack other County Council members who enacted laws that supposedly benefited them.5
Abbott asserts in his pro se Complaint that, while serving his term as a Council member, he earned a reputation as an "honest, hardworking, dedicated Councilman" who was "recognized as... supporting community and nearby residents' positions...."6 By the time that campaigning began in earnest for the 2002 Republican primary, according to Abbott, Gordon and Freebery were determined "to try to force Abbott to resign from office or harm Abbott's ability to be re-elected."7 He alleges that Gordon and Freebery committed a myriad of actions in opposition to his candidacy including the following:
(1) using County resources to recruit candidates to run against him "beginning in or about the year 2001," and continuing into the year 2002;8
(2) developing discriminatory legislation — later dropped — with another Councilwoman that would prohibit Abbott from serving as a Councilman based on his status as an attorney in private practice;9 (3) using County resources to release false information relating to Abbott's representation of a developer;10
(4) orchestrating a meeting at the County Executive room on July 11, 2002, at which Abbott was attacked by unidentified real estate developers, allegedly for associating with an unidentified client;11
(5) pressuring other unidentified members of the Council to hold a special meeting in August of 2002 to "publicize further attacks" on Abbott, nearer to the primary election;12
(6) using the August 2002 meeting to "manufacture" attacks on Abbott and bolster the support of their "hand-picked candidate";13 and
(7) requiring employees, including law enforcement officers to campaign for their choice candidate by "falsely and maliciously alleg[ing]" that Abbott unethically represented developers.14
On September 7, 2002, Abbott lost the Republican primary for reelection to County Council. He claims that the loss is a direct result of the individual defendants' actions and manipulations of County government.
Abbott filed his complaint against Defendants on September 7, 2004, exactly two years after he lost the Republican primary election in his bid for reelection as the Third District Representative of the New Castle County Council.
Count I alleges that the individual defendants are liable for damages under 42 U.S.C. § 1983 for the denial of Abbott's First Amendment speech and association rights and his Fourteenth Amendment rights under the Equal Protection Clause. Gordon and Freebery allegedly used the County government to retaliate against Abbott and to discriminate against him because he opposed, criticized, and challenged their positions, and refused to be a "rubber-stamp" to actions by the Council.15 The County is allegedly liable to Abbott under the doctrine of respondeat superior or under a "custom or policy" theory.16
Count II asserts that Gordon and Freebery entered into a civil conspiracy. Abbott alleges that Gordon and Freebery: (1) violated Article I, Section 3 of the Delaware Constitution by using County resources to illegally steal the election from Abbott;17 (2) violated 9 Del. C. § 1183 by using County resources to discriminate against Abbott because of his differing political views;18 (3) violated the Delaware Campaign Financing and Disclosure Act (the "Campaign Act") by using County resources to support the campaign of Abbott's opponent;19 (4) violated New Castle County Code Sections 2.03.103 and 2.03.104 by using County resources to promote Abbott's opponent and by attacking Abbott "in retribution" for exercising his rights;20 and (5) violated Abbott's First Amendment Right to Free Speech under the U. S. and Delaware Constitutions, as well as his Fourteenth Amendment Right to Equal Protection under the U. S. Constitution.21 According to Abbott, had Gordon and Freebery not conspired against him, he would have won the primary. Because of his incumbency and the substantial Republican voter registration advantage in the Third County Council District, Abbott submits that primary success was "tantamount to election."22
The remaining Count of the Complaint alleges that Gordon and Freebery libeled and slandered Abbott by maliciously making false statements about him, causing him to lose the Republican primary. Specifically, Abbott submits in Count III that Gordon and Freebery falsely and maliciously accused him of engaging in unethical conduct by representing a well-known developer on a land use project.23 Abbott seeks the salary and benefits that he would have received as a County Councilman had he been elected, as well as damages resulting from the harm to his reputation and for the loss of the opportunity to continue as a County Council member.24
The County has raised numerous arguments in support of dismissal of the Complaint. As to Count I, the County argues that Abbott has failed to state a claim under 42 U.S.C. § 1983 ("Section 1983") because: (1) his claim is barred by the applicable statute of limitations; (2) he has no constitutional right to hold public office; (3) he has no First Amendment right to avoid partisan politics; (4) his Equal Protection Clause claim merely restates his First Amendment claim without supporting allegations; (5) the County cannot be held liable under the doctrine of respondeat superior or a "custom or policy" theory; and (6) any claims related to the petitioning of the County Council or the County Ethics Commission are barred by the Noerr-Pennington doctrine.25
With respect to Count II, it is argued that Abbott's civil conspiracy claim is also...
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