City of Keene v. Cleaveland, 2013–885

• Decision Date: 09 June 2015
• Docket Number: No. 2013–885,2013–885
• Parties: CITY OF KEENE v. James CLEAVELAND & a.
• Court: New Hampshire Supreme Court

167 N.H. 731

118 A.3d 253

CITY OF KEENE

v.James CLEAVELAND & a.

No. 2013–885

Supreme Court of New Hampshire.

Argued: October 15, 2014

Opinion Issued: June 9, 2015

Gallagher, Callahan & Gartrell, P.C., of Concord (Charles P. Bauer and Robert J. Dietel on the brief, and Mr. Bauer orally), for the petitioner.

Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally), for respondents James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, and Graham Colson.

Respondent Pete Eyre, for himself, filed no brief.

Nixon Peabody LLP, of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

New Hampshire Municipal Association, of Concord (Stephen C. Buckley, on the brief and orally) as amicus curiae.

BASSETT, J.

The petitioner, the City of Keene, appeals an order of the Superior Court (Kissinger, J.) dismissing its claims of tortious interference with contractual relations, negligence, and civil conspiracy, and denying its request for preliminary and permanent injunctive relief. The City filed suit against the respondents, James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, Graham Colson, and Pete Eyre, because they followed closely behind the City's parking enforcement officers (PEOs) on their daily patrols through downtown Keene, videotaping them, criticizing their work, and putting money into expired parking meters before a parking ticket was issued. After an evidentiary hearing, the trial court dismissed the action, ruling that the City's claims were barred by the First Amendment to the United States Constitution. U.S. CONST. amend. I. The trial court also denied the City's petition for preliminary and permanent injunctive relief. We affirm in part, vacate in part, and remand.

I

The following facts are drawn from the City's pleadings, or were adduced at the evidentiary hearing. The City employs PEOs to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a "save." When the respondents "save" a vehicle, they leave a card on the vehicle's windshield that reads: "Your meter expired! However, we saved you from the king's tariff!" The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as "f* * * * *g thief," "coward," "racist," and "b* * *h"; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a "threat against [the] people." The PEOs testified that they repeatedly asked the respondents to stop their activities, complained to the Keene police department, and reported the respondents' activities to the city attorney.

In 2013, the City petitioned for preliminary and permanent injunctive relief, alleging tortious interference with contractual relations and civil conspiracy to commit tortious interference.¹ The City asserted that the respondents, acting individually and in concert, tortiously interfered with the City's contractual relations with the PEOs by engaging in persistent and ongoing efforts to prevent them from performing their official duties, thus creating a hostile work environment for the PEOs. The City sought to enjoin the "Respondents, or anyone under their direction, supervision, employment, or control" from "coming within," "video recording" within, or "communicating with any PEO" within, "a safety zone of fifty (50) feet of any PEO while that PEO is on duty performing his or her employment duties as required by the City of Keene." The City did not seek to prevent the respondents from filling meters. The petition contained the following statement:

[The City] does not seek an Order to prevent Respondents from exercising their constitutional rights to video record the PEOs from a comfortable remove or otherwise to express their opinion; rather, [the City] seeks only to prevent Respondents from taunting, interfering with, harassing, and intimidating the PEOs by establishing a safety zone between the PEOs and [the] Respondents while the PEOs are performing their duties.

The respondents filed a motion to dismiss, arguing that the City's petition failed to state a claim for tortious interference, and that the claim violated their right to free speech under the First Amendment of the Federal Constitution and Part I, Article 22 of the New Hampshire Constitution, as well as their right to government accountability under Part I, Article 8 of the New Hampshire Constitution. See U.S. CONST. amend. I ; N.H. CONST. pt. I, arts. 8, 22.

Shortly thereafter, the City filed a separate civil complaint against the respondents, requesting a jury trial and seeking money damages for injuries sustained by the City because of the respondents' tortious interference with contractual relations and negligence. These claims were based upon the same factual allegations as those set forth in the City's petition for injunctive relief.

The trial court held a three-day evidentiary hearing and heard legal argument on both the City's petition for preliminary injunctive relief and the respondents' motion to dismiss. The PEOs testified that the close proximity of the respondents—sometimes only a foot away from them—caused the PEOs anxiety and made them feel harassed. One PEO testified that he was sometimes followed on his patrols by two or three of the respondents at the same time, and that they followed him so closely that if he turned around, they would bump into him. He ultimately resigned because "the constant harassment and intimidation [had] started to boil over into [his] personal life and [his] time off," and he felt he was "backed into a corner." Another PEO testified that she is "tense and uptight all the time" because of the "awful anticipation" of "waiting for [the respondents] to show up," and claimed that she is unable to do her job because she is "trying to avoid [the respondents]." A third, who complained that the respondents waited outside her car and followed her in and out of city buildings on her breaks, testified that she does not feel safe when the respondents follow her at work. She also testified that, on one occasion, one of the respondents grabbed her wrist when she attempted to remove one of the respondents' cards from a car windshield. She has changed her work schedule to avoid the respondents, and has considered quitting her job. The City also offered testimony about the risk to public safety: specifically, that the respondents distract the PEOs as they drive on city streets, and that the respondents "dart[ ] across" the street, which the City asserted could result in pedestrian injuries or vehicle collisions.

Several of the respondents testified as well. Cleaveland stated that an injunction requiring the respondents to stay away from the PEOs would be a "considerable infringement" on the respondents' ability to get their message to the public, and might create an antagonistic environment by requiring the respondents to raise their voices to be heard. The respondents also asserted that distances between five and fifteen feet away from the PEOs were "ideal" for their activities, and that videotaping required closer proximity to the PEOs than filling meters.

During the course of the hearing, the City narrowed its request for injunctive relief. First, rather than seeking the originally requested injunction that would bar the respondents "from coming within" 50 feet of any on-duty PEO, it modified its request, asking that the respondents be prohibited from engaging in "touching, taunting, obstructing, detaining, hindering, impeding, blocking, [and] intimidating or harassing" conduct within a 30–foot "safety zone" around the PEOs. The City explained that it was not seeking to enjoin the respondents from merely "being within the proximity of the officers"; rather, it was seeking to prohibit the respondents from being "in their proximity and engag[ing] in the behavior" alleged. (Emphasis added.) Next, at the close of the hearing, the City again narrowed its requested relief, asking the trial court to order a "safety zone" around an on-duty PEO of 15 feet—approximately the distance between two parking meters—or "any other reasonable injunction that the Court deems appropriate." The City emphasized that it did not seek to restrict the content of the respondents' speech, and acknowledged to the trial court that they had constitutionally protected rights to "videotape," "have discourse," and "get their message out" as long as they did so from "a reasonable distance back." See Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) ("The filming of government officials engaged in their duties in a public place ... fits comfortably within [First Amendment] principles."). The City sought to restrict only those aspects of the respondents' conduct that were interfering with the PEOs' ability to perform their jobs.

The trial court granted the respondents' motion to dismiss. After expressing skepticism as to the viability of the City's tortious interference claim under these circumstances, the trial court concluded that it "need not reach this issue as the enforcement of [the tortious interference claim] is an infringement [up]on the Respondents' right to free speech and expression under the First Amendment of the Federal...