Sutliffe v. Epping School Dist.

• Decision Date: 17 September 2009
• Docket Number: No. 08-2587.,08-2587.
• Citation: 584 F.3d 314
• Parties: Thomas SUTLIFFE; Donald Sisson; Leo Grimard; Nancy Lee Grimard; Renee Victoria; Epping Residents for Principled Government, Inc., Plaintiffs, Appellants, v. EPPING SCHOOL DISTRICT; Town of Epping; Barbara D. Munsey, Superintendent of Schools, Administrative Unit #14; Harold K. Lapierre, Moderator, Town of Epping School District; Susan McGeough, Member, Town of Epping Board of Selectmen; Thomas Gauthier, Member, Town of Epping Board of Selectmen; Christopher Murphy, Member, Town of Epping Board of Selectmen; Kim Sullivan, Member, Town of Epping Board of Selectmen; Marci Morris, Chair, Epping School Board; Jeffrey Nollett, Member, Epping School Board; Susan Kimball, Member and Chair, Epping School Board; Pamela Tibbetts, Member and Chair, Epping School Board; Scott Booth, Member, Epping School Board; Robert Lonek, Member, Epping School Board; Jeffrey Leduc, Member, Epping School Board; Mark A. Vallone, Principal, Epping Elementary School, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

584 F.3d 314

Thomas SUTLIFFE; Donald Sisson; Leo Grimard; Nancy Lee Grimard; Renee Victoria; Epping Residents for Principled Government, Inc., Plaintiffs, Appellants, v. EPPING SCHOOL DISTRICT; Town of Epping; Barbara D. Munsey, Superintendent of Schools, Administrative Unit #14; Harold K. Lapierre, Moderator, Town of Epping School District; Susan McGeough, Member, Town of Epping Board of Selectmen; Thomas Gauthier, Member, Town of Epping Board of Selectmen; Christopher Murphy, Member, Town of Epping Board of Selectmen; Kim Sullivan, Member, Town of Epping Board of Selectmen; Marci Morris, Chair, Epping School Board; Jeffrey Nollett, Member, Epping School Board; Susan Kimball, Member and Chair, Epping School Board; Pamela Tibbetts, Member and Chair, Epping School Board; Scott Booth, Member, Epping School Board; Robert Lonek, Member, Epping School Board; Jeffrey Leduc, Member, Epping School Board; Mark A. Vallone, Principal, Epping Elementary School, Defendants, Appellees.

No. 08-2587.

United States Court of Appeals, First Circuit.

Heard June 1, 2009.

Decided September 17, 2009.

Benjamin T. King with whom Charles G. Douglas, III and Douglas, Leonard & Garvey, P.C. were on brief for appellants.

John T. Alexander with whom Daniel J. Mullen and Ransmeier & Spellman Professional Corporation were on brief for Town appellees.

Diane M. Gorrow with whom Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C. was on brief for school appellees.

Before LYNCH, Chief Judge, TORRUELLA and EBEL,^* Circuit Judges.

LYNCH, Chief Judge.

This unusual First Amendment case grows out of a dispute over access to government channels of written and electronic communication to conduct an ongoing debate over government spending in the Town of Epping, New Hampshire.

A citizens group that advocates reduced spending, Epping Residents for Principled Government ("ERPG"), along with its chairman Thomas Sutliffe and another member, in 2006 brought this suit under 42 U.S.C. § 1983 against various Town and school official defendants.¹ The complaint was later amended in 2007 to add as plaintiffs three other Town residents who were unaffiliated with ERPG. Plaintiffs claimed that defendants violated their First and Fourteenth Amendment rights when defendant Town and school officials advocated for approval of budgets and spending on school and Town purposes through school and Town newsletters, mailings, and other forms of communication including the Town website, while denying plaintiffs access to these same communication channels to express their opposing views.

The district court, in 2008, dismissed the claims of the three added plaintiffs for lack of standing. Sutliffe v. Epping Sch. Dist. (Sutliffe III), 627 F.Supp.2d 41, 48-50 (D.N.H.2008). It also dismissed the bulk of the original plaintiffs' claims on res judicata and collateral estoppel grounds, in light of a similar suit that plaintiffs had previously brought — and lost — in state court. Id. at 47-57. In a separate order later that year, the district court granted summary judgment to defendants on plaintiffs' remaining claims, concerning the Town website. Sutliffe v. Town of Epping (Sutliffe IV), No. 06-cv-474, 2008 WL 4922348 (D.N.H. Nov.13, 2008). We now affirm the rulings in both orders.

I.

ERPG, which describes itself as "a perennial thorn in [the Town's] side," has been engaged in a longstanding effort to curb what it sees as "profligate spending" by the Town and its school district.

As part of this effort, on January 31, 2005, in the lead-up to the March 8, 2005, local elections, ERPG's chairman, Sutliffe, sent a letter to the Epping School Board, accusing the school board of using public resources to engage in one-sided advocacy in certain unspecified mailers sent prior to the previous year's election. The letter also cited the Epping Elementary School newsletter, Cool News, which it claimed gave an unfair voice to a private organization called the Epping Advocates; the newsletter listed the address for the Advocates' website, which promoted a certain view (allegedly favorable to that of the school board) on the issues and candidates presented in the 2004 election. ERPG's letter demanded that the school board afford a similar opportunity to "those residents who hold a different point of view on matters advocated by your Board" and that all such materials distributed in the future, particularly with regard to the March 2005 election and future elections, "include both sides of [the] issue."

Sutliffe had sent a similar letter on behalf of ERPG on January 29, 2005, to the Town's Board of Selectmen. The letter accused the selectmen of producing and distributing, using public funds, a "flyer which . . . advocated the passage of certain warrant articles" before the previous election. As with the school board, the letter demanded that the Board of Selectmen provide ERPG with an opportunity to express its opposing opinion in any future materials from the selectmen, specifically those relating to the upcoming March 2005 election. Neither the school board nor the selectmen acceded to ERPG's demands.

A. The New Hampshire State Court Litigation

In response, on March 3, 2005, just days before the election, Sutliffe and ERPG filed a pro se, ex parte petition for injunctive and declaratory relief against both boards and their respective chairpersons (collectively the "state court defendants") in the Rockingham County Superior Court. The petition sought to enjoin the school board from sending any further mailings on issues pertaining to the election "without allowance for inclusion of a differing viewpoint" and to grant ERPG a "rebuttal mailing to be sent to all Epping residents prior to the March 8, 2005 election, at the School District's expense." It also requested that the court require the selectmen, before the March 8 election, to send an addendum to the 2004 annual report² with ERPG's views, again at the Town's expense. Failing this, the petition asked the court to delay the election.

The petition asserted that the state court defendants had violated the New Hampshire Constitution and the First and Fourteenth Amendments of the U.S. Constitution by "expend[ing] public monies for purposes of promoting or advocating a particular position on an election measure or issue." In support of this claim, ERPG's petition cited the 2004 annual report, which included sections written by both the school board and the selectmen. ERPG claimed that both sections contained advocacy in favor of the passage of certain warrant articles that were up for consideration in 2004. ERPG pointed to two statements in the section prepared by the school board's chairperson: (1) "We ask for your support of the three year paraprofessional contract and the warrant article general maintenance items." And (2) on another warrant article, "As always, your affirmative vote on the school budget is vitally important. This appropriation is the money needed to effectively run our schools on a day to day basis." ERPG also objected to material in the selectmen's portion, which contained a report by the police chief on another warrant article that stated:

I am not convinced that we can accomplish the mission of this department with the current staffing and ask the town to support our needs as we take on additional duties each year. Your support is vital and I am asking you again this year to vote favorably for the addition to our police force.

Plaintiffs' objections went beyond the 2004 annual report. The petition also cited Sutliffe's January 29 and 31 letters. It alleged that, in spite of its requests, the school board sent three mailings in the month that followed, along with numerous flyers sent home with students, all without giving ERPG a chance to express its viewpoint. The petition did not explicitly reference the Cool News newsletter or any other specific materials.

The superior court rejected plaintiffs' request for ex parte relief on March 3, 2005, the same day the petition was filed. Realizing that they would be unable to attain relief before the March 8 election, the plaintiffs filed a motion to amend the petition on March 4. In place of the relief requested in the ex parte petition, the amended petition requested that the court: (1) find that the 2003 and 2004 annual reports contained unwarranted advocacy and thus constituted invalid expenditures of public funds; (2) enjoin "all Epping public officials in the future from their continued use of unwarranted advocacy," as required by the New Hampshire and U.S. Constitutions; and (3) order that the 2005 and 2006 annual reports contain a statement advising citizens on the impermissibility of advocacy with the use of public funds.

On June 1, 2005, the superior court conducted a bench trial on the relief requested in the amended petition. At the trial, the plaintiffs submitted a packet of materials labeled as Exhibit 1. These materials included copies of the Cool News school newsletter from February and March 2004; school mailers from March 9, 2004, and March 8, 2005; photographs showing blueprints and a model of a proposed school addition which had been placed at the polls in the March 8, 2005 election; statements detailing the cost of mailing certain school flyers in 2004; and a March 1, 1996, memorandum to the Epping School District prepared by its attorney regarding the use of public funds for advocacy.³

The superior court admitted these exhibits into evidence, but stated that it would limit its review to the Town and school board statements to which the plaintiffs had referred in their petition.⁴ Plaintiffs explained that the materials were intended "to give . . . some background basically on what transpired because this all started in the year 2004." The evidence illustrated how the plaintiffs "were denied . . . from all angles[,] from the selectmen, the school committee, from any other planning board or conservation commission." The court again clarified...