Sutliffe v. Epping School Dist.

• Decision Date: 04 April 2008
• Docket Number: Civil No. 06-cv-474-JL.
• Citation: 2008 DNH 076,627 F.Supp.2d 41
• Parties: Thomas SUTLIFFE et al. v. EPPING SCHOOL DISTRICT et al.
• Court: U.S. District Court — District of New Hampshire

627 F.Supp.2d 41

2008 DNH 076

Thomas SUTLIFFE et al. v. EPPING SCHOOL DISTRICT et al.

Civil No. 06-cv-474-JL.

United States District Court, D. New Hampshire.

April 4, 2008.

COPYRIGHT MATERIAL OMITTED

Charles G. Douglas, III, Benjamin T. King, Douglas Leonard & Garvey, Concord, NH, for Thomas Sutliffe et. al.

Charles P. Bauer, Daniel J. Mullen, Ransmeier & Spellman, Concord, NH, Diane M. Gorrow, Soule Leslie Kidder Zelin Sayward & Loughman, Salem, NH, for Epping School District et. al.

ORDER

JOSEPH N. LAPLANTE, District Judge.

The defendants, who include municipal agencies, officials, and employees of the town of Epping, New Hampshire, have moved under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the bulk of the plaintiffs' second amended complaint, which alleges violations of their constitutional rights to free speech and equal protection. The defendants argue that the plaintiffs' claims are, variously, barred by res judicata, collateral and judicial estoppel, the Rooker-Feldman doctrine,¹ and the statute of limitations; have been brought by parties without standing; are not ripe; and fail to state a claim for relief.

Except as to those claims by plaintiffs who, as discussed infra, lack standing, this court has jurisdiction over this matter under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights).

The court heard oral argument on the motions to dismiss on March 25, 2008. For the reasons stated below, the motions are granted, except insofar as they seek dismissal of the claim that the Epping selectmen wrongfully required the plaintiff organization to disclose certain information about its membership and finances before the selectmen would consider allowing the organization to place a link to its website on the town's homepage.²

Applicable Legal Standard

Under Rule 12(b)(6), "[a] complaint should not be dismissed unless it is apparent beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Stanton v. Metro Corp., 438 F.3d 119, 123-24 (1st Cir.2006) (internal quotation marks omitted). In ruling on a motion to dismiss, the court must accept the well-pleaded factual allegations of the complaint as true, drawing all reasonable inferences in the plaintiff's favor. Id. at 123.

Although res judicata, collateral and judicial estoppel, and the statute of limitations are affirmative defenses, they may be adjudicated on a motion to dismiss under Rule 12(b)(6).³ See, e.g., In re Sonus Networks, Inc. Shareholder Deriv. Litig., 499 F.3d 47, 56 (1st Cir.2007) (collateral estoppel); Edes v. Verizon Comm'ns, Inc., 417 F.3d 133, 137 (1st Cir.2005) (statute of limitations); Banco Santander de P.R. v. Lopez-Stubbe (In re Colonial Mtg. Bankers Corp.), 324 F.3d 12, 15-16 (1st Cir.2003) (res judicata); Payless Wholesale Distribs. v. Alberto Culver (P.R.), Inc., 989 F.2d 570, 571 (1st Cir.1993) (judicial estoppel). Consistent with Rule 12(b)(6) standards, however, dismissal can occur only when facts that "conclusively establish the affirmative defense" are "definitively ascertainable from the allegations of the complaint, the documents (if any) incorporated therein, matters of public record, or other matters of which the court may take judicial notice," including the records of prior judicial proceedings. In re Colonial Mtg., 324 F.3d at 16.

BACKGROUND

Plaintiff Thomas Sutliffe serves as the chairman of plaintiff organization Epping Residents for Principled Government, Inc. ("ERPG"), a self-described "perennial thorn in [the town's] side opposing its profligate spending." The plaintiffs occupy one side of an "ongoing political debate" with local officials over municipal spending. The plaintiffs take exception to the officials' using taxpayer-funded mailings and other communications to argue their side of the debate, while allegedly denying the plaintiffs access to those materials to present their dissenting views.

In advance of the 2005 town election, Sutliffe, on behalf of ERPG, complained to both the board of selectmen and the school board about publicly funded communications disseminated in connection with the prior year's vote, demanding that an equivalent "opportunity be afforded to those residents who hold a different point of view on matters advocated by [the] Board[s]" (internal quotation marks omitted). When the boards refused to comply, Sutliffe and ERPG (the "state-court plaintiffs") sued them, and their chairmen (the "state-court defendants"), in Rockingham County Superior Court.

The state-court petition, filed pro se, alleged that the school board had deprived ERPG of an opportunity to express its views in mailings sent during the prior month, as well as "numerous fliers sent home with the students." As an exhibit to the petition, the state-court plaintiffs attached a letter they had written to the school board complaining about materials they found objectionable in this regard, including the elementary school newsletter Cool News, which allegedly "advertised and sought to advance the political agenda of a private organization called The Advocates," together with "other one-sided political bulletins" distributed via the students and the mails.⁴ The state-court plaintiffs also charged that the chairman of the school board and the police chief had illegally used the town's 2004 annual report to urge support for particular warrant articles at issue in the upcoming election. In its amended form, the petition claimed, inter alia, that this report, and its 2003 counterpart, violated the state and federal constitutions due to "unwarranted advocacy from a particular result on a particular warrant article," and sought a declaratory judgment to that effect and an injunction against the practice.

The superior court held a bench trial on the state-court plaintiffs' claims on June 1, 2005. In support of their position, the state-court plaintiffs submitted a packet of documents, including: copies of the Cool News newsletter from February and March 2004; a mailing from the school board about the 2005-2006 school budget and certain warrant articles, sent just in advance of the 2005 election; photographs showing that blueprints and a model of a school addition up for consideration in the 2005 election had been placed at the polls; and a mailing from the board of the selectmen in advance of the 2004 election about warrant articles then up for consideration.

Though the superior court accepted these exhibits, it expressed concern about an "open-ended" proceeding where "every time someone sends out a letter, I have to decide." The court therefore announced that "the only thing I am going to decide is whether the material referenced in your original petition is legal; is legal or illegal to send that out. That's my determination." In response, the state-court plaintiffs explained that the exhibits were intended as

some background basically on what transpired, because this all started in the year 2004. And in 2005, we were determined to ask that we be allowed to show opposing views.... We were denied that at all angles from the selectmen, the school committee, from any other planning board or conservation commission.

While the superior court "underst[ood] [this] position," it reiterated, "I am only going to address the denials that are contained in your petition." The state-court plaintiffs did not further object to this limitation or seek to amend their petition to seek relief from the additional communications.

The superior court issued a written order denying what it construed as the state-court plaintiffs' requests for relief as set forth in their amended petition. Epping Residents for Principled Gov't, Inc. v. Epping Sch. Bd., slip op. at 1, No. 05-E-0094 (N.H.Super. Ct. June 15, 2005) ("Superior Court Order"). The court concluded that "the First Amendment does not prevent the School Board Chairman or the Police Chief from urging support for their governmental proposals in the Town and School Annual Report," id. at 5, because "the United States Supreme Court has made it clear that the government may use public funds to endorse its own measures," id. at 4 (citing Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005)). The court also rejected the claim that the school board had violated the state-court plaintiffs' right to equal protection "by failing to publish opposing viewpoints in the annual report and other mailings," noting that they had "not presented evidence sufficient to demonstrate that the School Board impermissibly established classifications and therefore treated similarly situated individuals in a different manner." Id. at 5 (internal quotation marks omitted).

The state-court plaintiffs, still proceeding pro se, appealed the superior court's decision to the New Hampshire Supreme Court, which affirmed in an unpublished opinion. Epping Residents for Principled Gov't, Inc. v. Epping Sch. Bd., slip op., No. 2005-0600 (N.H. Oct. 6, 2006) ("Supreme Court Opinion"). First, the supreme court declined the state-court plaintiffs' request "to rule upon numerous statements by the [state-court defendants] upon which the trial court did not," invoking the "long-standing rule that parties may not have review of matters not raised in the forum of trial." Id. at 3. Observing that "the only statements upon which the trial court ruled were the statements made in the 2004 Town and School Annual Report," the supreme court explained, "If the [state-court plaintiffs] believed the trial court erred by confining its review ..., [they] should have raised this argument to the trial court in a motion for reconsideration."⁵ Id. at 3-4. The supreme court further observed that the state-court plaintiffs' pro se status below did not excuse their failure to take this step.⁶ Id. at 4.

Second, the supreme court noted that the state-court plaintiffs had conceded at oral argument before it that the challenged...