How v. City of Baxter Springs, Kan.
| Decision Date | 10 May 2005 |
| Docket Number | No. 04-2256-JWL.,04-2256-JWL. |
| Citation | 369 F.Supp.2d 1300 |
| Parties | Charles HOW, Plaintiff, v. CITY OF BAXTER SPRINGS, KANSAS, Donna Wixon and Robert Myers, Defendants. |
| Court | U.S. District Court — District of Kansas |
Kate Bohon McKinney, Thomas S. Busch, Holman Hansen & Colville PC, Overland Park, KS, Sam L. Colville, Holman Hansen & Colville, PC, Kansas City, MO, for Plaintiff.
James J. Rosenthal, David R. Cooper, Terelle A. Carlgren, Fisher, Patterson, Sayler & Smith, Topeka, KS, Richard W. James, Edward L. Keeley, McDonald, Tinker, Skaer, Quinn & Herrington, PA, Wichita, KS, for Defendants.
On April 20, 2005, plaintiff filed his corrected first amended complaint in which he alleged four separate causes of action against the City of Baxter Springs ("Baxter Springs"), Donna Wixon, the city clerk of Baxter Springs, and Robert E. Mays, the city attorney of Baxter Springs. In count II of the amended complaint, plaintiff alleges that Baxter Springs Ordinance Number 762, Article 3, Section 3.9a (), which criminalizes some defamation, is unconstitutional because it violates plaintiff's First and Fourteenth Amendment Rights under the United States Constitution, as well as plaintiff's rights under the Constitution of the State of Kansas, Bill of Rights § 11, and plaintiff requests declaratory and injunctive relief. In count IV of the corrected first amended complaint, plaintiff alleges that all three defendants committed the tort of abuse of process when they caused him to be served with the charge of criminal defamation and a notice to appear.
This matter is currently before the court on defendant Wixon's motion to dismiss counts II and IV of plaintiff's corrected first amended complaint (Doc. # 40) for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The court finds that the criminal defamation ordinance is neither unconstitutionally vague in violation of the Fourteenth Amendment nor is it overbroad in violation of the First Amendment, and therefore, the court grants defendant Wixon's motion to dismiss count II. However, the court denies defendant Wixon's motion to dismiss count IV, as plaintiff alleged the essential elements for abuse of process.
Plaintiff wrote a political advertisement that was critical of defendant Wixon as Baxter Springs city clerk. On March 13, 2003, after having consulted with defendant Myers, defendant Wixon commenced a criminal proceeding against plaintiff in the name of the Baxter Springs by filing a sworn criminal complaint charging plaintiff with violation of the criminal defamation ordinance, stating that plaintiff placed the political advertisement criticizing defendant Wixon knowing the information to be false and with actual malice.
Plaintiff was served with the criminal complaint along with a notice to appear, stating that a warrant for plaintiff's arrest would be issued if plaintiff did not appear in person as directed therein. Defendant Baxter Springs through defendant Myers, as city attorney, began prosecution of plaintiff on this criminal complaint, which carried a penalty of a $2,500 fine and one year imprisonment. After charges had been brought, defendant Myers advised the municipal court that he had a conflict of interest in the criminal prosecution and that a special prosecutor would be needed to proceed. Because a special prosecutor was not obtained by June 3, 2003, the municipal court entered an order of dismissal without prejudice. Following the dismissal of the criminal prosecution, defendants Myers and Wixon conducted a press conference in which they publicly announced that the criminal charge against plaintiff would be re-filed, possibly with additional charges.
The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Aspenwood Investment Co. v. Martinez, 355 F.3d 1256, 1259 (10th Cir.2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Adams v. Kinder-Morgan, Inc., 340 F.3d 1083, 1088 (10th Cir.2003). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).
The court finds that the criminal defamation ordinance is neither unconstitutionally vague nor overbroad, and therefore, the court grants defendant Wixon's motion to dismiss count II. However, the court finds that plaintiff has pled the essential elements of a claim for abuse of process, so the court denies defendant Wixon's motion to dismiss count IV.
In count II of the corrected first amended complaint, plaintiff alleges that the criminal defamation ordinance is unconstitutionally vague in violation of the Fourteenth Amendment and in violation of the First Amendment by allowing a complaint to be filed for communicating information rather than a false statement of fact, and defendant Wixon moves to dismiss this claim because an issue of law is dispositive.2 Plaintiff further alleges that each defendant has threatened to re-file criminal defamation charges against him. Contending that the ordinance is unconstitutional, plaintiff requests declaratory and injunctive relief from future prosecutions.
The criminal defamation ordinance states.3
(a) Criminal defamation is communicating to a person orally, in writing, or by any other means, information, knowing the information to be false and with actual malice, tending to expose another living person to public hatred, contempt or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends.
(b) In all prosecutions under this section the truth of the information communicated shall be admitted as evidence. It shall be a defense to a charge of criminal defamation if it is found that such matter was true.
Criminal defamation is a Class A violation
Ordinance No. 762, Art. 3, Sec. 3.9a.4
Facial challenges to laws are not to be taken lightly. Article III of the Constitution ensures that federal courts are not "roving commissions assigned to pass judgment on the validity of the nation's laws," but instead address only specific "cases" and "controversies." Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289, 1295 (10th Cir.1980). As the Supreme Court recently observed, Sabri v. United States, 541 U.S. 600, 124 S.Ct. 1941, 1948, 158 L.Ed.2d 891 (2004) (internal citations omitted). Because facial challenges push the judiciary towards the edge of its traditional purview and expertise, courts must be vigilant in applying a most exacting analysis to such claims. Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
Defendant Wixon argues that the criminal defamation ordinance has already been found to be constitutional by the Tenth Circuit and the Kansas Appellate Court, citing Phelps v. Hamilton, 59 F.3d 1058 (10th Cir.1995) and State v. Carson, 95 P.3d 1042, 2004 WL 1878312 (Kan.App. Aug. 29, 2004), and asks that count II be dismissed as an issue of law is dispositive. In Phelps, the court addressed a facial challenge to a previous version of the Kansas criminal defamation statute that required that a defendant act "maliciously" instead of with "actual malice" to be found guilty of criminal defamation. 59 F.3d at 1070-71. The court construed the statute to require "actual malice" and found it to be constitutional. Id. at 1073.
In Carson, the Kansas Appellate Court heard a facial challenge to the Kansas criminal defamation statute where the defendant who was being prosecuted for criminal defamation argued that the use of the word "tending" in the statute reduced the burden of proof to something less than a reasonable doubt. 95 P.3d 1042, 2004 WL 1878312 at *2. There, the court found that the burden of proof had not been lowered because the jury instructions required that the jury find that the state had proven its case beyond a reasonable doubt for a guilty verdict. Id. 2004 WL 1878312 at * 3, 95 P.3d 1042.
Plaintiff does not dispute that the requirement of finding "actual malice" cures a potential constitutional problem or that the use of the word "tending" lowers the burden of proof to less than beyond a reasonable doubt, but instead he argues that the phrase "tending to expose another living person to public hatred, contempt or ridicule; tending to deprive such person of the benefits of public confidence and social acceptance; or tending to degrade and vilify the memory of one who is dead and to scandalize or provoke surviving relatives and friends" is unconstitutionally vague, and plaintiff argues that the filing of a criminal complaint for "communicating... information" violates the First Amendment of the United States Constitution, because the...
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