Venable v. Keever

• Decision Date: 24 August 1999
• Docket Number: No. CIV. A.3:96-CV-580L.,CIV. A.3:96-CV-580L.
• Citation: 61 F.Supp.2d 552
• Parties: Don VENABLE and Richard Finlan, Plaintiffs, v. William KEEVER, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

61 F.Supp.2d 552

Don VENABLE and Richard Finlan, Plaintiffs, v. William KEEVER, et al., Defendants.

No. CIV. A.3:96-CV-580L.

United States District Court, N.D. Texas, Dallas Division.

August 24, 1999.

COPYRIGHT MATERIAL OMITTED

Don Venable, Dallas, TX, pro se.

Richard Finlan, Dallas, TX, pro se.

John Martin, Amy Hunt, James Coleman, Jr., Carrington Coleman Sloman & Blumenthal, Dallas, TX, for Keever, Defendant.

Austin England, Friedman, Driegert & Hsueh, L.L.C., Dallas, TX, for Friedman and Reese, Defendants.

Anthony Avey, Shannon Gracey Ratliff & Miller, L.L.P., Fort Worth, TX, for Eichelbaum.

Alan Rich, Baron & Budd, Dallas, TX, for Rich, Defendant.

MEMORANDUM OPINION AND ORDER

LINDSAY, District Judge.

Before the court is Defendants' Motion for Summary Judgment on Qualified Immunity From Suit, filed May 30, 1997. Also before the court are the following pleadings:

1) Plaintiff Venable's Response to Defendants' Motion for Summary Judgment on Qualified Immunity, filed June 16, 1997;

2) Defendant Eichelbaum's Reply Brief, filed June 26, 1997;

3) Defendants' Friedman's, Rich's and Reese's Reply to Venable's Response to Motion for Summary Judgment on Qualified Immunity, filed July 1, 1997;

4) Defendant Keever's Reply to Plaintiffs' Responses to Motion for Summary Judgment on Qualified Immunity, filed July 1, 1997;

5) Plaintiff Finlan's Response to Defendants' Motion for Summary Judgment —Immunity, filed July 2, 1997;

6) Defendants' Friedman's, Rich's and Reese's Reply to Finlan's Response, filed July 14, 1997;

7) Plaintiff Finlan's Supplemental Response to Defendants' Motion for Summary Judgment — Immunity, and Motion to Deny application of Keever for the Absolute Immunity Defense, filed March, 31, 1998;

8) Defendant Keever's Brief on the Relevance of Bogan v. Scott-Harris, filed April 29, 1998;

9) Plaintiff Venable's Responsive Brief to Defendant Keever's Brief on the Relevance of Bogan v. Scott-Harris, filed May 8, 1998;

10) Plaintiff Finlan's Response to Eichelbaum's Claim to Qualified Immunity, filed October 30, 1998;

11) Defendant Eichelbaum's Reply to Finlan's Response to Eichelbaum's Claim to the Qualified Immunity Defense, filed November 9, 1998;

12) Defendant Eichelbaum's Supplemental Authorities and Brief Relating to His Motion for Summary Judgment on the Issue of Qualified Immunity, filed December 4, 1998;

13) Plaintiff Venable's supplemental response, filed February 25, 1999;

14) Plaintiff Finlan's Supplement to his Response to Defendants' Motion for Summary Judgment — Immunity, filed February 25, 1999;

15) Plaintiff Venable's Supplemental Response to Defendant Eichelbaum's Supplemental Authorities and Brief Relating to his Motion for Summary Judgment on the issue of Qualified Immunity, filed February 25, 1999; and

16) Plaintiff Venable's Supplement to his Supplemental Brief in Response to Defendant Eichelbaum's Supplemental Authorities and Brief Relating to his Motion for Summary Judgment, filed February 25, 1999.

On June 28, 1999, the court held a hearing on Defendants' Motion for Summary Judgment. After careful consideration of the motion, the parties' myriad responses and replies thereto, supplemental responses and replies, and the applicable law, the court grants the motion for summary judgment of Defendant Keever and denies the motion for summary judgment of Defendants Eichelbaum, Friedman, Rich and Reese.¹

I. Factual and Procedural Background

This case initially began in 1994 when Don Venable and Richard Finlan (hereinafter referred to as "Plaintiffs" or "Venable and Finlan") sued Defendant Keever, who was the president of the Board of Trustees ("Board") of the Dallas Independent School District ("DISD"), to acquire Keever's campaign finance records. The other four defendants in this case, Dennis J. Eichelbaum, Lawrence J. Friedman, Alan Rich and David Reese, are attorneys who have represented DISD and Keever in this case and other cases. At the time Plaintiffs filed the action in 1994, they had been involved in extensive litigation against DISD involving numerous lawsuits over a period of years.

Plaintiffs' Joint Original Petition, filed in state court in October of 1994, alleged that Keever refused to allow Plaintiffs to inspect and copy his candidate/officeholder public records which they had requested. The petition specifically alleged causes of action for writs of mandamus and writs of permanent injunction pursuant to Tex. Const., art. I, § 8 and 42 U.S.C. § 1983, and for a writ of mandamus pursuant to Tex. Govt.Code, § 552.321. Plaintiffs asserted that "[a]s a ministerial duty of that office [elected member of the DISD Board], [Keever] is to collect, assemble and maintain certain public records containing public information" pursuant to the Texas Education Code. Thereafter, this case was removed to United States District Court because of the 42 U.S.C. § 1983 claims; however, Plaintiffs subsequently dropped their federal cause of action, and the case was remanded to state court.

In July of 1995, Keever filed a declaratory judgment counterclaim against Plaintiffs, seeking a construction of the Texas Open Records Act and an award of attorneys' fees. Specifically, Keever sought a determination that, as an individual member of the DISD Board, he was not a "governmental body" and had no duty to respond to an open records request. That declaratory judgment counterclaim was subsequently dismissed by the court with respect to Venable in October of 1995. In dismissing the counterclaim, the court held that "as a matter of well established law, the maintenance of a counterclaim by a defendant seeking a declaratory judgment on a subject matter already before a court is improper." Finlan was non-suited in January of 1996. Plaintiffs then filed separate counterclaims. Venable sued Keever and the four attorneys; Finlan sued the same individuals, with the exception of Reese. In February of 1996, the state court severed Plaintiffs' counterclaims, and Defendants immediately removed those severed counterclaims to United States District Court.

Venable's "Original Counterclaim" contends that Defendants abridged his First Amendment right to free and unfettered access to the legal system by retaliatory or abusively frivolous litigation which is actionable under 42 U.S.C. § 1983. He asserts that Defendants' "filing and purposeful continuation of the groundless counterclaim" is not an action protected by the First Amendment or Article I of the Texas Constitution because there is no right to prosecute a claim that is not cognizable in law.

Finlan's "Compulsory Counterclaim" contends that Defendants Keever, Friedman, Rich and Eichelbaum entered into a conspiracy to "drive [him] from the courthouse" by filing the declaratory judgment suit, using the potential award of attorneys' fees, to punish him for inquiring about Keever's campaign finances, and to put an end to his persistent requests for public information from and filing lawsuits against DISD and its board members. He claims retaliation for the exercise of his rights protected by the First Amendment and sues for violation of his civil rights pursuant to 42 U.S.C. § 1983.

Plaintiffs cite a June 22, 1995 DISD resolution ("Resolution"), which authorized the taking of legal action against Plaintiffs, as the basis for the allegedly retaliatory action. The Resolution stated:

In the opinion of the Board of Education, the litiation [sic] between Don Venable, Richard Finlan, Ed Grant, and the Dallas Independent School district, its employees, officials, and agents, which has over the last five (5) years involved multiple lawsuits, should no longer be permitted to expend such significant amounts of General Counsel's time from more pressing legal matters in representing the District. It is the opinion of the Board that Larry Friedman and Associates should be designated lead counsel in all such litigation. The Board of Education believes that it is appropriate to instruct its General Counsel, Dennis J. Eichelbaum, along with such other attorneys as its General Counsel may designate, to file such pleadings and law-suits [sic] as necessary to resolve all matters between Don Venable, Richard Finlan, Ed Grant, and the Dallas Independent School District, its employees, officials, and agents.

After consultation with the Board President and General Superintendent, through and with the consent of the District's General Counsel, designated counsel shall file these motions at a time believed to be appropriate.

Venable suggests that the Resolution at best authorized the filing of lawsuits in the name of DISD and did not authorize Keever's filing of the counterclaim in his own name. Finlan suggests that the Resolution evidences the DISD Board's official policy of retaliatory conduct against Plaintiffs by use of "legal hit men."

Defendants assert that they are each entitled to qualified immunity from suit because in filing the counterclaim Keever was performing a discretionary act, did not violate any clearly established constitutional right of which a reasonable person would have been aware, and the attorney defendants were acting on behalf of DISD and performing governmental functions. Plaintiffs contend that neither Keever nor the attorney defendants are entitled to qualified immunity because Keever either did not have authority to file the counterclaim or was acting outside the scope of his authority, and the attorney defendants as private parties are not entitled to qualified immunity.

In light of the allegations made in Plaintiffs' complaint, the issue presented to the court is whether the filing of an allegedly retaliatory counterclaim seeking a declaratory judgment in state court on a matter already pending before that court is a violation of the First Amendment right of access to the courts. Accordingly, the resolution of this issue will be dispositive of Defendants' summary judgment motion.

II. Summary Judgment Standard

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