St Marie v. Jefferson Cnty.

• Docket Number: 3:22-cv-05893-DGE
• Decision Date: 25 August 2023
• Parties: JULIAN ELIZABETH ST MARIE, Plaintiff, v. JEFFERSON COUNTY et al, Defendant.
• Court: U.S. District Court — Western District of Washington

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JULIAN ELIZABETH ST MARIE, Plaintiff,
v.
JEFFERSON COUNTY et al, Defendant.

No. 3:22-cv-05893-DGE

United States District Court, W.D. Washington, Tacoma

August 25, 2023

ORDER ON MOTION TO DISMISS (DKT. NO. 9)

David G. Estudillo United States District Judge

I. INTRODUCTION

This matter comes before the Court on Defendants' Motion to Dismiss Claims Against Tuppence Macintyre. (Dkt. No. 9.)

II. BACKGROUND

Plaintiff Julian St. Marie filed her Complaint against Defendant Tuppence Macintyre and other defendants on November 16, 2022. (Dkt. No. 1.) The bulk of the Complaint alleges various claims relating to Plaintiff's prior employment at the Jefferson County Prosecuting Attorney's Office (“JCPAO”), which ended prior to Macintyre's employment there. The Court

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will discuss only those facts concerning Macintyre as the Motion to Dismiss focuses on Macintyre.

Upon her termination from the JCPAO, Plaintiff “entered private practice in Jefferson County." (Id. at 25.) A defendant in “a serious felony matter” retained Plaintiff and she entered an appearance on their behalf in that case on January 28, 2022. (Id.) The JCPAO appears to have assigned Macintyre as attorney in the case. (Id. at 26.)

On November 4, 2022, Macintyre informed Plaintiff that “she, along with the JCPAO through [Jefferson County Prosecutor] Kennedy had adopted a policy of only communicating with the Plaintiff in writing or on the record.” (Id.) Plaintiff alleges “[s]hort notice settings and compliance with other local rules require[ing] parties to confer were not available to the Plaintiff and her clients.” (Id.)

Plaintiff asserts the “JCPAO adopted [the policy of communication only on the record or in writing] months after the Honorable Keith Harper, Jefferson County Superior Court Judge admonished Macintyre and instructed her not to engage in this conduct.” (Id.) Since the November 4, 2022 letter, “Macintyre and the JCPAO continue to refuse to speak to Plaintiff unless it is on the court record or in writing.” (Id. at 27.)

Plaintiff alleges “[Jefferson County Chief Criminal Deputy Prosecutor] Ashcraft's continued verbal denigration has encouraged Macintyre's behavior toward her.” (Id. at 27.) She further alleges that as a result of “the disparate treatment . . . both she and her clients are prejudiced .... [and] [t]he JCPAO has tortiously interfered with [her] business expectations.” (Id.)

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III. DISCUSSION

A. Legal Standard

Federal Civil Procedure Rule 12(b) motions to dismiss may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 547.

In reviewing a motion to dismiss under Rule 12(b)(6), a court “may consider documents ‘whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the [plaintiff's] pleading.'” In re Silicon Graphics Inc. Securities Litigation, 183 F.3d 970, 986 (9th Cir. 1999) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994); see also United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment.”).

B. Cause of Action Number Three as to Macintyre - Retaliation - First Amendment

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In her third cause of action, Plaintiff asserts Macintyre and “Jefferson County violated Plaintiff's First Amendment right by imposing prior restraint upon Plaintiff's speech.” (Dkt. No. 1 at 34.) This claim is premised on Macintyre informing Plaintiff that the JCPAO would only communicate with Plaintiff in writing or on the record, which occurred on November 4, 2022. (Id. at 26.) As none of the parties dispute Macintyre informed Plaintiff of this policy by a letter dated November 4, 2022 (see Dkt. No. 10 at 5-6), it is proper for the Court to consider the contents of this letter in evaluating the Defendants' motion.

As to the third cause of action, Defendants assert “Macintyre enjoys qualified immunity” and Plaintiff “fails to identify a cognizable violation of the First Amendment.” (Dkt. No. 9 at 5.) “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). To establish qualified immunity, courts consider “(1) whether the evidence viewed in the light most favorable to the plaintiff is sufficient to show a violation of a constitutional right and (2) whether that right was ‘clearly established at the time of the violation.'” Sandoval v. County of San Diego, 985 F.3d 657, 671 (9th Cir. 2021) (quoting Horton by Horton v. City of Santa Maria, 915 F.3d 592, 599 (9th Cir. 2019). Courts “do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Courts have discretion to assess either prong of the qualified immunity test first. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

Plaintiff cites no authority whereby limiting an attorney's communications with a prosecutor to on-the-record contacts or in writing would constitute a clear violation of a

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constitutional right. Although the case law need not replicate the situation, the Court could not find any decision indicating this type of restriction is unlawful, let alone a decision identifying such conduct is a clearly established violation of the First Amendment. Unsurprisingly, Plaintiff recognizes the absence of any similar case. (Dkt. No. 13 at 16) (“Counsel was not able to find a comparable case as this action is unprecedented.”).

In contrast, in Clark v. Wells Fargo Bank, 2022 WL 203417 (D. Oregon, Jan. 14, 2022), a court limited a pro se plaintiff in a civil matter to communicating with opposing counsel in writing via email. In response to this limitation, the plaintiff asserted the court's order was “a prior restraint on his speech[.]” Id. at *2. The Oregon district court determined that even if this were considered a prior restraint on speech, plaintiff's motion would still fail because “prior restraints may be imposed if they amount to a reasonable time, place, and manner restrictions on speech.” (Id. at *3 (quoting Menotti v. City of Seattle, 409 F.3d 1113, 1143 (9th Cir. 2005)). The court noted that the plaintiff “was not prevented from speaking about his case either publicly or privately” and found that confining communications in writing by email were “reasonable time, place, and manner restrictions and [the plaintiff] ha[d] not shown that they violated his First Amendment rights.” Id.

As the Court is unaware of, and Plaintiff fails to identify, any authority clearly establishing a right to communicate orally with a prosecutor outside of a courtroom proceeding, Macintyre is entitled to qualified immunity.

Even assuming the absence of qualified immunity, limiting communications between a prosecutor and a defense attorney to writing or in court proceedings is not an unconstitutional prior restraint on speech. “A prior restraint [on speech] is an administrative or judicial order that forbids certain communications issued before those communications occur.”

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Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414 (9th Cir. 2014). The Ninth Circuit has held “that a statute permitting injunctions against speech is not per se unconstitutional and [has] further clarified that ‘[c]ontent-neutral injunctions that do not bar all avenues of expression are not treated as prior restraints.'” Id. at 431 (quoting Maldonado v. Morales, 556 F.3d 1037, 1047 (9th Cir. 2009)).

Moreover,

Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions. We have often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.

Clark v. Cmty. for Creative Non-Violence, 468 U.S....