Lemoine v. Wolfe

• Decision Date: 17 March 2015
• Docket Number: No. 2014–CQ–1546.,2014–CQ–1546.
• Citation: 168 So.3d 362
• Parties: Scott D. LEMOINE; Beverly P. Lemoine v. Elizabeth P. WOLFE.
• Court: Louisiana Supreme Court

168 So.3d 362

Scott D. LEMOINE; Beverly P. Lemoine

v.Elizabeth P. WOLFE.

No. 2014–CQ–1546.

Supreme Court of Louisiana.

March 17, 2015.

Smith & Fawer, LLC, Michael Seth Fawer, New Orleans, LA, for Appellant.

Louisiana Department of Justice, James D. Caldwell, Atty. Gen., David G. Sanders, Bridget Benoit Denicola, Douglas Gist Swenson, Baton Rouge, LA, for Appellee.

Opinion

WEIMER, Justice.

Invoking Louisiana Supreme Court Rule XII,¹ the United States Court of Appeals for the Fifth Circuit certified to this court the following question of law:

Did the dismissal of Scott Lemoine's criminal cyberstalking prosecution pursuant to Louisiana Code of Criminal Procedure article 691 constitute a bona fide termination in his favor for the purposes of this Louisiana malicious prosecution suit?

Lemoine v. Wolfe, 575 Fed.Appx. 449, 463 (5th Cir.2014). We accepted certification² and, for the reasons set forth below, answer that question as follows: A dismissal of a criminal prosecution pursuant to La.C.Cr.P. art. 691 will constitute a bona fide termination in favor of the malicious prosecution plaintiff unless the charge is dismissed pursuant to an agreement of compromise, because of misconduct on the part of the accused or in his behalf for the purpose of preventing trial, out of mercy requested or accepted by the accused, because new proceedings for the same offense have been instituted and have not been terminated favorably to the accused, or when the dismissal is due to the impossibility or impracticality of bringing the accused to trial. Guided by these principles, we leave it for the Fifth Circuit to resolve whether there is sufficient evidence of a factual dispute as to the circumstances surrounding the dismissal of Scott Lemoine's criminal cyberstalking charge to preclude summary judgment on this element of a malicious prosecution cause of action.

FACTS AND PROCEDURAL HISTORY

The certified question arises from a malicious prosecution action in which the federal district court granted a motion for summary judgment in favor of the defendant, Judge Elizabeth P. Wolfe. The plaintiffs, Scott and Beverly Lemoine, appealed that decision. The facts of the case, as presented by the court of appeals, are consistent with appellate review of a summary judgment, which requires, when assessing whether a dispute exists as to any material fact, that the court refrain from making any credibility determination or weighing the evidence, and that all evidence be viewed in a light most favorable to the non-moving party and all reasonable inferences drawn in the non-moving party's favor. Lemoine, 575 Fed.Appx. at 454, citing Trinity Universal Ins. Co. v. Employers Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir.2010), and Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir.2014). As a result, the facts we recount below have been presented to us in a light most favorable to the Lemoines. Lemoine, 575 Fed.Appx. at 451.

This case originated in late 2008, when Scott Lemoine took up the cause of his disabled friend, Daniel Hoover. On learning the difficulties Daniel was allegedly having with his ex-wife, Kelly Wolfe, Lemoine authored posts on a local television news website and on Daniel's Facebook page. The posts included a vague suggestion that Kelly's new mother-in-law, Judge Elizabeth P. Wolfe, a Louisiana state district court judge, had involved herself in the judicial system for Kelly's benefit.³

Following the publication of these posts, Lemoine engaged in an internet dialogue with Daniel's sister, Lori Hoover Barrient, in which they debated the propriety of Kelly's actions. In September 2009, Lori complained to Detective Toby Aguillard of the Tangipahoa Parish Sheriff's Office that she felt harassed by Lemoine's posts. In November of that same year, Kelly also contacted Detective Aguillard, reporting that she “was being threatened and harassed by Internet postings that were authored by Scott Lemoine and others.”

According to the Lemoines, later that month, Judge Wolfe also contacted Detective Aguillard. Judge Wolfe disclosed that she, too, was upset by Lemoine's internet posts. Suggesting that Lemoine's conduct satisfied the elements of the misdemeanor crime of cyberstalking and that Detective Aguillard had probable cause to arrest Lemoine, Judge Wolfe indicated that she wanted the detective to do so.

In December, Detective Aguillard secured an arrest warrant for Scott Lemoine for alleged violations of Louisiana's cyberstalking statute, La. R.S. 14:40.3. The detective then invited Lemoine to stop by the police station. When Lemoine arrived at the station, he was placed under arrest.

Lemoine's bail was initially set at $25,000; however, that amount was later increased to $100,000, and the additional requirement that Lemoine wear a GPS tracking bracelet was imposed. Because there were no tracking bracelets available, Lemoine, who would have been able to post bond, remained incarcerated. At the time of his arrest, Lemoine was under federal supervised release on an earlier, unrelated charge. Following the arrest, his conditional discharge was revoked by a federal district court judge based on the results of an earlier routine drug screen and Lemoine was recommitted to the custody of an out-of-state federal medical center for the next ten months.

Two days following his arrest for cyberstalking, Lemoine was additionally charged with soliciting Judge Wolfe's murder. The charge was based on an accusation by a fellow inmate at the jail, Brian Register, who told authorities that Lemoine had solicited Judge Wolfe's murder and who, as evidence, produced fabricated drawings and letters that he attributed to Lemoine.⁴ After turning these materials over to authorities, Register, who had a criminal case pending before Judge Wolfe, penned a letter to the Judge in which he identified himself as the person who “set up” Lemoine and asked: “What should [I] tell [the police]?” Later, Register sent a second letter to Judge Wolfe, thanking her for sending a public defender to meet with him and asking for her assistance in having his bond reduced, stating that he could “prove a murder that happened a few years ago.” Judge Wolfe gave copies of both letters to the District Attorney. At some point, the originals were placed in Mr. Register's file, but no copies of the letters were placed in Lemoine's file.

Lemoine was formally charged by bill of information with cyberstalking and solicitation of murder on March 12, 2010. On August 24, 2010, a probable cause hearing was conducted on the solicitation for murder charge. The presiding judge found no probable cause to believe that Lemoine had committed the solicitation of murder offense, reduced the bail on the cyberstalking charge to the original amount of $25,000, and removed the GPS bracelet condition. Thereafter, Lemoine's attorney filed a motion to quash the cyberstalking charge. In September 2010, the District Attorney dismissed that charge, citing La.C.Cr.P. art. 691.⁵ Lemoine was released from custody on October 13, 2010.

As a result of the foregoing events, Scott Lemoine and his wife, Beverly, filed suit in federal district court against multiple defendants raising multiple claims under federal and state law. Among the claims asserted was a Louisiana tort law claim for malicious prosecution against Judge Wolfe. Judge Wolfe filed a motion for summary judgment as to this claim, alleging that the Lemoines failed to establish all of the elements of the malicious prosecution cause of action. The district court granted Judge Wolfe's motion for summary judgment and the Lemoines appealed.

On appeal, a three-judge panel of the United States Court of Appeals for the Fifth Circuit concluded that the Lemoines produced sufficient evidence to avoid summary judgment with regard to five of the six elements of a malicious prosecution action.⁶ As to the remaining element the Lemoines must satisfy—whether the dismissal of Scott Lemoine's criminal cyberstalking prosecution under La.C.Cr.P. art. 691 counts as a bona fide termination of the criminal proceeding in his favor—the Fifth Circuit pointed out that in Deville v. Marcantel, 567 F.3d 156 (5th Cir.2009), a different panel of that court had previously ventured an Erie⁷ guess that relied on and extended the holding of this court in Savoie v. Rubin, 01–3275 (La.6/21/02), 820 So.2d 486, to conclude that only a judgment on the merits in a criminal proceeding can serve as a bona fide termination and that a dismissal pursuant to La.C.Cr.P. art. 691 is not a judgment on the merits, but simply a unilateral dismissal of the charge by the prosecutor. Deville, 567 F.3d at 173. While acknowledging the Deville decision, the Fifth Circuit found its Erie guess problematic in light of a number of Louisiana intermediate appellate court decisions that have repeatedly reached a contrary conclusion and ruled that a district attorney's dismissal of a prosecution under La.C.Cr.P. art. 691 satisfies the bona fide termination element of a malicious prosecution action.⁸ Given the amount of contrary precedent in the Louisiana courts of appeal and certain enumerated policy considerations⁹ which call into question the holding in Deville, coupled with the lack of definitive guidance from this court on the issue, the Fifth Circuit declined to hazard a second Erie guess on what is the dispositive issue in the Lemoines' appeal. Rather, because “important state interests are at stake and the state courts have not provided clear guidance on how to proceed,” the Fifth Circuit certified the question stated above to this court.¹⁰

LAW AND ANALYSIS

The particular tort alleged in this case is the intentional tort of malicious prosecution. The tort is one that has been recognized since early in the jurisprudence of this state,¹¹ and while the cause of action in favor of one “whose liberty has been interfered with in an unwarranted manner” derives from the fault-reparation principles of La. C.C. art. 2315, ...