Rossignol v. Voorhaar, CIV.A.WMN-99-3302.

• Decision Date: 21 February 2002
• Docket Number: No. CIV.A.WMN-99-3302.,CIV.A.WMN-99-3302.
• Citation: 199 F.Supp.2d 279
• Parties: Kenneth C. ROSSIGNOL, et al. v. Richard VOORHAAR, et al.
• Court: U.S. District Court — District of Maryland

199 F.Supp.2d 279

Kenneth C. ROSSIGNOL, et al. v. Richard VOORHAAR, et al.

No. CIV.A.WMN-99-3302.

United States District Court, D. Maryland.

February 21, 2002.

COPYRIGHT MATERIAL OMITTED

Seth D. Berlin, Levine Sullivan & Koch, LLP, Washington, DC, Alice Neff Lucan, Law Office, Washington, DC, for Plaintiffs.

John F. Breads, Jr., Local Government Insurance Trust, Columbia, MD, Kevin Bock Karpinski, Allen Karpinski Bryant and Karp PA, Baltimore, MD, for Defendants.

MEMORANDUM

NICKERSON, District Judge.

Before the Court are: Plaintiffs' Motion for Summary Judgment on Liability Issues (Paper No. 69); Cross-Motion for Summary Judgment filed by Defendants Doolan, Long, Merican, Myers, Willenborg, and Young (Paper No. 73); Defendant Fritz's Cross-Motion for Summary Judgment (Paper No. 74); Cross-Motion for Summary Judgment filed by Defendants Voorhaar, Alioto, and Board of County Commissioners for St. Mary's County ("the County") (Paper No. 75).¹ The motions have been exhaustively briefed and are ripe for decision. Upon review of the pleadings and applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6) and that: all Defendants will be granted summary judgment as to Counts 1-3, which assert causes of action under 42 U.S.C. § 1983, and the remaining state law claims (Counts 4-6) will be dismissed for lack of jurisdiction.

I. FACTUAL BACKGROUND

The facts of this unusual case are, for the most part, undisputed. Plaintiff is the publisher of a weekly community newspaper called St. Mary's Today. Defendants include St. Mary's County Sheriff Richard Voorhaar, seven members of the Sheriff's Department,² St. Mary's County State's Attorney Richard Fritz, and the county Board of Commissioners. Late on the night of November 2, 1998, and in the early morning hours of November 3, a large number of St. Mary's Today newspapers were purchased en masse by several of the Sheriff's Department Defendants, among other people, just hours before the local election, in which Defendants Voorhaar and Fritz were candidates. Before describing the events of that night, however, the Court will provide some background information about the parties.

In 1990, Plaintiff Kenneth Rossignol began publishing St. Mary's Today, a weekly community newspaper serving St. Mary's County and two adjoining counties.³ In the autumn of 1998, Plaintiff printed⁴ approximately 6,500 copies per issue, most of which were sold in St. Mary's County. According to Plaintiff, about 2,600 newspapers were sold in retail stores in St. Mary's County, and about 1,100 were sold from newsboxes. The remaining newspapers were sold either to subscribers or at locations outside of St. Mary's County. Each issue of St. Mary's Today sold for 75 cents.

There is no question that articles appearing in St. Mary's Today have tended to generate a great deal of controversy. The paper often took a sharply critical stance toward public officials, including members of the St. Mary's County Sheriff's Department and the State's Attorney. According to Plaintiff, the paper's brand of journalism is "hard-hitting and not-infrequently controversial." Pl.'s Brief at 4. Defendants, however, refer to the paper as "unsavory," "scathing," and "outright lies." See, e.g., Merican Response to Interrogatory 1; Willenborg Dep. at 37-39; Fritz Dep. at 33.

Defendants have described in particular how they were portrayed by the newspaper. According to Defendant Fritz, the paper had referred to Defendant Doolan as a "drunk," and Defendant Long as a "child abuser" and a "lazy" officer. See, Fritz Dep. at 126-28. Defendant Willenborg claims that St. Mary's Today prints lies about his family, see Willenborg Dep at 37-39, 222; Defendant Merican recalled being referred to as a "shoeshine boy," as well as other insults. See, Merican Dep. at 27-30. Defendant Voorhaar reports that the paper has "written a lot of things about me for a long period of time," and that eventually he stopped reading St. Mary's Today. See, Voorhaar Dep. at 21. Plaintiff does not dispute this testimony, although he points out that at times St. Mary's Today has printed favorable coverage of the Sheriff's office. See Pl.'s Brief at 7.

Tuesday, November 3, 1998 was election day in St. Mary's County. Running for office that day were, among others, Sheriff Voorhaar, who was running for re-election as Sheriff, and Richard Fritz, who was running for State's Attorney for St. Mary's County. It was also the day that St. Mary's Today was scheduled to come out with its weekly issue. About a week before election day, some of the Sheriff's Department Defendants began to construct a plan to buy up a large number of St. Mary's Today papers on the night before the election, when the papers were scheduled to be delivered to stores and newsboxes. Defendant Willenborg was the first to come up with the idea. Shortly thereafter, Defendants Long, Merican, and Doolan agreed to participate in the plan. Defendant Willenborg has also testified that there was "passing conversation" about the plan with people at work, as people were "passing in the hallway." Willenborg Dep. at 211. Sheriff Voorhaar, who did not participate in the mass purchase, has stated that he knew about the plan about a week before election day, and had communicated his support for the idea.⁵ See, Voorhaar Dep. at 112.

There is little dispute about the planning of the mass purchase. Defendant Willenborg mentioned the idea to two civilians after a Fritz campaign meeting at Fritz's house. The civilians agreed to participate in the purchase, and suggested that they meet at the home of one of the civilians on the Sunday prior to the election, to plan which stores each would visit to make the purchases. Present at that meeting were Defendants Willenborg, Doolan, Merican, and Alioto, who were all off-duty, along with several civilians. Participants agreed that the members of the Sheriff's Department should "not wear anything that resembled the police," see Doolan Dep. at 65, and that they should drive private vehicles. Furthermore, they agreed to obtain receipts for the store-bought papers, and to videotape the newsbox purchases to document the fact that they had paid for each paper. See, e.g., Merican Dep. at 43. Defendants also testify that they agreed that if any store clerks refused to sell the papers, they would simply leave and not buy them. See, Merican Dep. at 42; Doolan Dep. at 115. Also at the meeting, Defendant Willenborg handed out a list of the locations of newsboxes and stores selling St. Mary's Today, which had been compiled by Defendant Long when he "drove around St. Mary's County one night checking places that sold St. Mary's Today." See, Willenborg Dep. at 199-200.

To fund the mass purchase, Defendants collected money from various sources. Sheriff Voorhaar contributed $500. Voorhaar Dep. at 41. Defendant Doolan gave $75. Doolan Dep. at 89. Defendant Fritz contributed $500, although he testified that he was merely passing along a contribution from his brother. Fritz Dep. at 47. One local resident contributed $2,500; others contributed smaller amounts. See, Willenborg Dep. at 146-48. Plaintiff has neither argued nor submitted evidence that the contributions came from any campaign or public funds.

At approximately 11:00 p.m. on November 2, 1998, Defendants Doolan, Merican, Young, Long, Myers, Willenborg, and Fritz met at Defendant Long's home. All six Sheriff's deputies were off-duty throughout the night.⁶ Stickers depicting a copy of St. Mary's Today going into a trash can were handed out, and some of the defendants wore them throughout the night.⁷ See, e.g. Willenborg Dep. at 71. At this meeting, some Defendants expressed concerns about the legality of their plan and asked Defendant Fritz for his opinion. Defendant Fritz suggested that they obtain receipts for their purchases, but otherwise advised the others that he believed Defendants had a right to purchase as many papers as they desired. See, Doolan Dep. at 270; Fritz Dep. at 17. After Defendant Fritz was dropped off at home, the other Defendants divided into two groups to carry out the purchases (Merican, Doolan, and Young; and Willenborg, Long, and Myers).

As planned, Defendants collected receipts from stores and videotaped themselves buying papers from newsboxes. At about 2:00 a.m., as Plaintiff was attempting to repair a jammed newsbox, he noticed that many of his newsboxes were empty. Plaintiff then began to drive around trying to replenish the supply of St. Mary's Today in various locations. Defendants saw Plaintiff's vehicle and began following him, purchasing many of the papers that Plaintiff had attempted to restock. See, Willenborg Dep. at 58. The purchases continued throughout the night, until about 7:00 a.m. on the morning of November 3, 1998.⁸

Plaintiff alleges that Defendants bought 1,379 newspapers during the night. See, Def. Doolan, et al. Reply at Exh. 19 (Plaintiff's listing of papers "seized"). Defendants do not dispute this calculation. Plaintiff also claims, however, that approximately 300 papers were taken without payment from various stores that were not yet open for business when Defendants arrived. See, Pl.'s Brief at Exh. 11, 14 (Pl.'s responses to interrogatories). Defendants deny that any papers were taken without payment. It is undisputed, however, that the papers in Defendants' possession on the morning of November 3, 1998, were bundled and placed in a barn on property owned, at least in part, by Defendant Fritz's family.

On the videotape of the newsboxes purchases, as well as in testimony prepared for this lawsuit, Defendants have expressed their purposes for executing the mass purchase of St. Mary's Today. Many Defendants state that they participated in the mass purchase because they had expected that the election day edition of St. Mary's Today would print something highly critical of Defendant Fritz, who was running for the office of State's Attorney and...