King v. McKenna

CHRISTOPHER KING, J.D. d/b/a KINGCAST/MORTGAGE MOVIES, Plaintiff, v. BETTY LOU McKENNA, HOLLY MALONEand JOHN W. PARADEE, ESQUIRE, Defendants.

C.A. No: K15C-03-028 RBY

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

Submitted: June 23, 2015

June 29, 2015

Upon Consideration of Defendants' Motion for Judgment on the Pleadings

GRANTED

Upon Consideration of Plaintiff's Motion for Partial Judgment

DENIED

Upon Consideration of Plaintiff's Motion to Amend Complaint

GRANTED

Upon Consideration of Plaintiff's Motion for Reconsideration of Rule 155 Video Coverage

DENIED

ORDER

Christopher King, Pro se.

Joseph S. Shannon, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware for Defendants Betty Lou McKenna and Holly Malone.

Peter C. McGivney, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, Delaware for Defendant John W. Paradee, Esquire.

Young, J.

SUMMARY

The controversy surrounding the contested election for Kent County Recorder of Deeds ("Recorder of Deeds") continues to engender litigation. Christopher King ("Plaintiff") a self-proclaimed web video journalist from Washington State, arrived on the scene of the election, apparently, to investigate allegedly slanderous comments made against one of the candidates for the position, La Mar Gunn. During the course of Plaintiff's reporting, he claims to have attempted to enter the office of the Recorder of Deeds, in order to videotape its interior. Plaintiff avers that Holly Malone ("Defendant Malone"), Betty Lou McKenna ("Defendant McKenna"), the Recorder of Deeds, and John Paradee, Esq. ("Defendant Paradee" and, together with Defendant McKenna and Defendant Malone, "Defendants") thwarted his videotaping efforts, expelling him from the office.

As a result of these alleged events, Plaintiff brings constitutional and tort claims against each of the Defendants. In response, Defendants have filed motions for judgment on the pleadings with respect to all claims. Even accepting all of the factual allegations in the Complaint as true, the Court finds, as a matter of law, that both the constitutional and tort claims asserted against Defendants are unsustainable. Therefore, the Court GRANTS Defendants' motions for judgment on the pleadings.

Plaintiff has, additionally, filed a motion to amend the Complaint, as well as and a motion for reconsideration. The motion to amend the Complaint seeks to add a second constitutional claim. Given the liberal standard for granting such motions, the Court obliges Plaintiff's request, permitting him to add the claim. However, this ruling has no effect on the Court's findings with respect to the original claims, asdiscussed infra.

Plaintiff also seeks reconsideration of this Court's previous ruling, regarding the use of video recording in the Courtroom. The Court has already determined this issue. Pursuant to Administrative Directive 155, paragraph E, this is discretionary with the Court, which has declined video use in this matter. Plaintiff's motion fails to allege any legally recognizable justification for reconsideration of this matter. The motion is DENIED.

FACTS AND PROCEDURES

On or about November 25, 2014, Plaintiff, a web video journalist, attempted to enter the offices of the Recorder of Deeds, filming its interior with a video camera. Plaintiff claims that his purpose was to investigate purported allegations made against La Mar Gunn, a candidate for the Recorder of Deeds position, that he had engaged in voter fraud. Upon arriving, Plaintiff avers that his journalistic endeavors were met by the opposition of Defendant Malone, who informed him that administrative policy prevented the video recording of the offices. Plaintiff further alleges that Defendant Malone made two phone calls: one to Defendant McKenna, and one to Defendant Paradee, presumably, regarding this issue. Plaintiff alleges that he was told he would be arrested if he persisted in his efforts to videotape the offices.

By letter dated December 15, 2014, Mary Sherlock, Esq., a Kent County Row Office Attorney, responded to Plaintiff's inquiry regarding whether there was a policy forbidding video recording of the Recorder of Deeds office. Mary Sherlock, Esq. informed Plaintiff that there was no such policy.

Following receipt of this letter, in February of 2015, Plaintiff filed a Complaintwith the Kent County Court of Common Pleas, alleging constitutional and tort claims against Defendants. The Court of Common Pleas transferred Plaintiff's case to this Court on March 25, 2015.

DISCUSSION

I. Plaintiff's Motion to Amend the Complaint

By his Complaint, Plaintiff brings three claims against each of the Defendants: 1) claim for negligent infliction of emotional distress; 2) claim for intentional infliction of emotional distress; and 3) constitutional claim alleging violation of the U.S. First Amendment, and of Article 1 §5 of the Delaware Constitution, known as the Delaware Freedom of the Press. By motion dated June 1, 2015, Plaintiff requests leave to file an Amended Complaint. In essence, Plaintiff asks solely to add a second constitutional claim, alleging an equal protection violation.

Pursuant to Superior Court Civil Rule 15, such motions are to be granted liberally.¹ Only in the event there is prejudice to Defendant, shall such motions be denied.² Defendants have not asserted, and the Court does not find, any potential prejudice in permitting Plaintiff to plead an additional constitutional claim. Therefore, Plaintiff's motion to amend the Complaint is GRANTED. However, as discussed infra, the Court will, nonetheless, proceed with disposition of the claims currently pleaded in the Complaint, and addressed by the parties' pending filings.

II. Defendants' Motion for Judgment on the Pleadings & Plaintiff's Partial Summary Judgment Motion

a. First Amendment Claim³

Plaintiff's First Amendment claim is premised on his alleged attempt to enter and videotape the interior of the Recorder of Deeds office.⁴ Plaintiff's motivation was, ostensibly, to interview Defendant McKenna, or some other employee of the Recorder of Deeds, regarding allegations of voter fraud made against La Mar Gunn, a candidate for that office.⁵ Plaintiff holds himself out to be a type of guerrilla-style journalist, using the medium of video reporting, which he then uploads to the Internet.

According to Plaintiff, his efforts in collecting information regarding the purported allegations of voter fraud were thwarted by the actions of each Defendant. More precisely, Plaintiff alleges that Defendant Malone harshly rebuked his journalistic enterprise, informing him of an administrative policy, which prohibited the videotaping of the office interior. Plaintiff further claims that Malone's prohibitory statements were made with the consultation of Defendant McKenna andDefendant Paradee, via telephone conversations. In addition, Plaintiff contends that there was no such policy in place, and that Malone's statements, arguably made at the behest of McKenna and Paradee, were meant to mislead.⁶

Plaintiff contends that he had a constitutional right to videotape the offices of the Recorder of Deeds. That he was prevented from doing so is asserted to be a violation of this right, as per 42 U.S.C. § 1983. Specifically, Plaintiff argues that Defendants have violated the First Amendment to the U.S. Constitution, and the Delaware Freedom of the Press. In response, Defendants move for judgment on the pleadings.⁷

"A motion for judgment on the pleadings admits, for the purposes of the motion, the allegations of the opposing party's pleadings but contends that they are insufficient as a matter of law."⁸ Where there is any question of material fact, such motions must not be granted, as such motions raise, inherently, only questions of law.⁹ "It is the Plaintiff's burden to establish the existence of a genuine issue of material fact."¹⁰ Viewing the facts, by necessity, from Plaintiff's perspective, theCourt is presented with the following question: As a matter of law, did Defendants impinge upon Plaintiff's First Amendment right, by denying him the ability to film inside the Recorder of Deeds office?

The Court, first, addresses this question with respect to Defendant Paradee. As a matter of law, in order for there to be a violation of the First Amendment, there must be some form of state action.¹¹ Accepting the averments in Plaintiff's Complaint as true for purposes of his motion, Defendant Paradee argues that he was not a state actor. As articulated in Plaintiff's Complaint, Defendant Paradee was retained by Defendant McKenna to represent her in then-pending litigation, surrounding the Kent County Recorder of Deeds election.¹² However, "[r]epresenting a client is not, by virtue of being an officer of the court, a state actor under color of law."¹³ Defendant McKenna's happening to be the Recorder of Deeds is the only connection Defendant Paradee is alleged to have had to the Delaware state government in Plaintiff's Complaint. Interestingly, Plaintiff himself states, "[Defendant Paradee] is not a State Actor..."¹⁴ Based solely upon the facts presented in the Complaint, and accepting all of them as true, the Court finds Defendant Paradee not to have been a state actor. Asa matter of law, therefore, Defendant Paradee cannot have violated any constitutional rights of Plaintiff. Defendant Paradee's motion for judgment on the pleadings regarding the First Amendment claim is GRANTED.

As concerns the remaining Defendants (hereinafter, "State Actor Defendants"), the Court must determine into what First Amendment protection the alleged factual circumstance of denied video recording falls. To begin, the First Amendment provides that "Congress...shall make no law...abridging the freedom of speech, or of the press." "This means that, with a few, carefully crafted exceptions, the government can neither interfere with anyone who is attempting to speak or publish nor punish him or her thereafter for having done so."¹⁵ In the parties'...