Kay v. Bruno, Civ. No. 84-679-D.

• Decision Date: 26 February 1985
• Docket Number: Civ. No. 84-679-D.
• Parties: Richard B. KAY v. George BRUNO, et al.
• Court: U.S. District Court — District of New Hampshire

605 F. Supp. 767

Richard B. KAY v. George BRUNO, et al.

Civ. No. 84-679-D.

United States District Court, D. New Hampshire.

February 26, 1985.

COPYRIGHT MATERIAL OMITTED

Donald A. Kennedy, Manchester, N.H., for plaintiff.

James R. Muirhead, Manchester, N.H., Robert A. Stein, Concord, N.H., for Bruno.

Kenneth G. Bouchard, Manchester, N.H., for Goble.

Peter W. Heed, Concord, N.H., for Powers.

Michael Lenehan, Concord, N.H., for Raiche.

Michael B. O'Shaughnessy, Manchester, N.H., for Manchester, King and Stewart.

Katherine Hanna, Warren S. Nighswander, Concord, N.H., for N.H. Democratic Party.

ORDER

DEVINE, Chief Judge.

A Floridian by residence, an attorney by profession, and Democratic in politics, plaintiff Richard B. Kay sought his party's 1984 presidential nomination. In the course of such quest, he attended in October 1983 a New Hampshire political gathering sponsored by Democrats. The events which overtook him in the course of such visit gave birth to the instant litigation.

Named as defendants are the New Hampshire Democratic Party ("Party"), and George Bruno, Ted N. Goble, Stephanie Powers, and Robert E. Raiche, who are described as holding varied positions with respect to the October 1983 meeting.¹ Plaintiff also sues the City of Manchester, a municipal corporation, its Chief of Police, Thomas King, and one of its police sergeants, Robert Stewart. All individual defendants are sued in both their individual and official capacities.

Plaintiff alleges that jurisdiction here exists on federal constitutional violations of Amendments I, V, VI, and XIV; Title 42 U.S.C. §§ 1973, 1981, 1983, and 1985; and Title 28 U.S.C. §§ 1331, 1343. Plaintiff also alleges a cause of action grounded on diversity jurisdiction, 28 U.S.C. § 1332, claiming damages in excess of $10,000, exclusive of interest and costs.

At this juncture of the proceedings, the issues presented to the Court for resolution arise from motions filed, respectively, by defendants Party, Bruno, Goble, Powers, and Raiche. Such motions seek dismissal pursuant to Rules 12(b) and (c), Fed.R. Civ.P. Their consideration brings into play the well-established and familiar requirement that the material facts alleged in the complaint are to be construed in the light most favorable to plaintiff and taken as admitted, with dismissal to be ordered only if plaintiff is not entitled to relief under any set of facts he could prove. Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff'd without opinion 745 F.2d 43 (1st Cir.1984) (and cases therein cited). Thus construed, the relevant facts are as follows.

Plaintiff announced his presidential candidacy on September 12, 1983, at the National Press Club in Washington, D.C. He subsequently became aware that New Hampshire Democrats were planning to hold a so-called Mini-Convention on October 29, 1983, at New Hampshire College ("NHC").² Plaintiff accordingly sent in the requisite fee for attendance at such meeting and came to New Hampshire on October 28. On the evening of such date he attended a social gathering held in honor of the incumbent Democratic Mayor of Manchester, who was running for reelection. At such gathering, plaintiff was introduced as and given equal attention to that afforded other announced presidential candidates who were then present.

On the morning of October 29, 1983, plaintiff proceeded from his motel to NHC, where he procured his credentials and met with defendant Bruno. Plaintiff informed Bruno of his desire to participate in the presidential candidates' forum which was scheduled to be held that afternoon. Bruno assured plaintiff that plaintiff would in fact be allowed to so participate. After "working the crowd", i.e., introducing himself to others arriving to participate in the meeting, plaintiff returned to his motel to prepare his remarks for participation in the afternoon forum.

On his return that afternoon to NHC, plaintiff discovered that a table had been set up for prospective participants in the forum with nameplates thereon. Noticing that his own name was absent, he again sought out Bruno, who then advised him that it had been decided that plaintiff would not be allowed to participate in the candidates' forum.

Unhappy with this turn of events, plaintiff took a seat at the table reserved for such candidates. A person identifying himself as a member of the security force requested plaintiff to leave this position, but plaintiff declined. Defendant Goble then appeared, identified himself to plaintiff as the Chief of Security, and again requested plaintiff to remove himself from the platform. Plaintiff again declined, the police were summoned, and plaintiff was arrested, handcuffed, and removed from the premises of NHC.

At the Manchester Police Station, plaintiff was booked on a charge of criminal trespass and subsequently released on bond. At a subsequent time, defendant King caused his offense to be reduced to a charge of "disorderly conduct". Trial on this latter charge was held in the month of November 1983 and resulted in plaintiff's acquittal.

Plaintiff alleges the acts of the defendants in "disinviting" him from participation in the candidates' forum were motivated by his known opposition to the position of most of the other candidates on the issue of "gay rights". His ten-page, 55-paragraph complaint sets forth three causes of action: (1) violation of his constitutional rights; (2) false arrest and false imprisonment; and (3) malicious prosecution. The Court discusses these claims seriatim.³

1. The Constitutional Claims

Plaintiff alleges that Party and the individual nonmunicipal employee defendants individually and in conspiracy with the police sought to injure him and deny him his constitutional rights of free speech and association pursuant to the First Amendment. Specifically, plaintiff alleges that the "Mini-Convention" was an official Democratic Party function in which plaintiff had been assigned a place as a forum participant and that denial of his participation therein deprived him of such constitutional rights. Plaintiff alleges that such actions of the defendants were under color of state law.

Otherwise stated, plaintiff's basic constitutional claim is that by "disinviting" his participation in the forum defendants violated his civil rights in derogation of the provisions of 42 U.S.C. § 1983 and the Fourteenth Amendment.⁴ Title 42 U.S.C. § 1983 does not reach private action, but rather "prohibits interference with federal rights under color of state law". Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982). The identical issues in determining the viability of suits under either § 1983 or the Fourteenth Amendment is whether "the alleged infringement of federal rights may be `fairly attributable to the State'". Id. at 838, 102 S.Ct. at 2770, quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). "The `state action' determination requires a fact-dependent inquiry into the degree of state control and involvement." Mendez v. Belton, 739 F.2d 15, 17 (1st Cir.1984). We commence such inquiry with a brief outline of New Hampshire's legislative approach to presidential primaries.

For most legislative purposes, the term "party" is defined to "mean any political organization which at the preceding state general election received at least 3 percent of the total number of votes cast for the office of governor". New Hampshire Revised Statutes Annotated ("RSA") 652:11 (Supp.1983).⁵ Since inception in 1949, the "first-in-nation" status of New Hampshire's presidential primary has been jealously guarded. RSA 653:9 (Supp.1983).⁶ Its purpose is the election of "delegates to a national party convention", RSA 652:6 (Supp.1983), such delegates being chosen by the voting of preference for presidential candidates. RSA 653:5 (Supp.1983).

In addition to the method of selection of national convention delegates, the New Hampshire statutes provide for the selection of delegates to state party conventions "in accordance with" certain geographical districts. RSA 653:6 (Supp.1983). A state party convention must be convened by the chairman of a state party committee, following the primary, and is to be held between the third Tuesday of September and the first Tuesday of October. RSA 667:21 (Supp.1983). Party nominees for certain state offices and delegates elected to attend the convention are to meet thereafter "for the purpose of adopting the platform of their party, nominating presidential electors and effecting an organization for the following 2 years." Id. Only such nominees or state delegates may participate in such state convention. RSA 667:23 (Supp.1983).

From the foregoing description, it is clear that the gathering at New Hampshire College on October 29, 1983, was not a statutorily mandated convention of the state Democratic Party. Rather, it was a gathering of those interested in the ideas of the Democratic Party, to which meeting were admitted all those who were able to pay the requested fee for such entry. Nor was the rental of a building at NHC, a private college, for the purpose of such meeting equivalent to the establishment of a public forum. Contrast Widmar v. Vincent, 454 U.S. 263, 267-68 n. 5, 102 S.Ct. 269, 273 n. 5, 70 L.Ed.2d 440 (1981) (while a state university which allows students to meet on its premises thus creates a public forum, there is no constitutional basis for a holding that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings).⁷

Without pun intended, it is also clear that the final ballots are not yet counted on the issue of whether political candidacy comprises a "fundamental right". Compare plurality opinion Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (per Rehnquist, J.) with dissent in same...