King v. McKenna ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR KENT COUNTY
CHRISTOPHER KING, J.D. d/b/a :
KINGCAST/MORTGAGE MOVIES, : C.A. No: K15C-03-028 RBY
:
Plaintiff, :
:
v. :
:
BETTY LOU McKENNA, HOLLY :
MALONE and JOHN W. PARADEE, :
ESQUIRE, :
:
Defendants. :
Submitted: June 23, 2015
Decided: 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.
King v. McKenna, et. al.
C.A. No.: K15C-03-028
June 29, 2015
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, as
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discussed 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 Complaint
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with 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.
1
Super. Ct. Civ. R. 15 (motion to amend “shall be freely given when justice so requires”).
2
Homsey Architects, Inc. v. Harry David Zutz Ins., Inc., 2000 WL 973285, at *6 (Del.
Super. Ct. May 25, 2000).
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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 and
3
Plaintiff and Defendants have filed separate dispositive motions with regard to
Plaintiff’s First Amendment claim. The Court addresses these motions in tandem.
4
For all intents and purposes, the analysis under the U.S. First Amendment and the
Delaware Freedom of the Press is the same. Gannet Co. v. State, 571 A.2d 735, 749 n.9 (Del.
1989). Therefore, the Court will refer to the claims as “First Amendment claim” for ease of
readability. In addition, the U.S. First Amendment applies to Delaware by incorporation through
the U.S. Fourteenth Amendment. Schneider v. New Jersey, 308 U.S. 147 (1939).
5
The Court notes that in subsequent filings, Plaintiff avers that his purpose at the
Recorder of Deeds was to uncover evidence of interstate mortgage fraud. However, as this Court
considers these matters under a judgment on the pleadings standard, the Court adheres to the
facts as set out by Plaintiff in the Complaint.
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Defendant 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, the
6
To his Complaint, Plaintiff has attached a letter received from Mary Sherlock, a Kent
County Row Office Attorney, informing Plaintiff that no official policy exists prohibiting the
videotaping of the office interior.
7
Plaintiff, by separate motion, moves for partial summary judgment of his First
Amendment claim. As discussed infra, the Court resolves the matter concerning this claim as a
judgment on the pleadings.
8
Dickerson v. Phillips, 2012 WL 2236709, at *1 (Del. Super. Ct. Jun. 13, 2012).
9
Id.10
Id.7
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Court 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. As
11
Doe v. Cape Henlopen School Dist., 759 F.Supp.2d 522, 530 (D. Del. 2011).
12
Complaint, at ¶ 5.
13
Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981)(internal quotations omitted); see also
Wilkerson v. Sullivan, 593 F.Supp.2d 689, 691 (D. Del. 2009) (“[n]or is a private attorney
considered a state actor. To act under color of law a defendant must be clothed with the authority
of state law”)(internal quotations omitted).
14
Complaint, at ¶ 5.
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a 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’ respective recitation of case
law, two competing versions of this First Amendment protection arise. Although not
articulated as such by Plaintiff, the cases to which Plaintiff cites would view his claim
as a restriction on speech in a public forum. 16 As such, the analysis would be whether
the State Actor Defendants’ conduct was a permissible time, place and manner
restriction on speech.17 The State Actor Defendants, on the other hand, following the
view of the U.S. Third Circuit Court of Appeals, present this as an issue of a
15
Capital Cities Media, Inc. v. Chester, 797 F.2d 1164, 1167 (3d Cir.1986) (citing
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323(1974); N.Y. Times v. U.S., 403 U.S. 713 (1971); N.Y. Times v. Sullivan, 376 U.S. 254 (1964);
Near v. Minnesota ex rel Olson, 283 U.S. 697 (1931)).
16
See e.g., Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) (court analyzed
restriction on Plaintiff’s ability to videotape police activities as a restriction on speech in a public
forum); Gilk v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (same).
17
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
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constitutional right to access information.18
The Court deems State Actor Defendants’ citation to Whiteland Woods, L.P.
v. Township of West Whiteland, particularly instructive.19 In that case, the Third
Circuit was faced with the similar factual situation of a Plaintiff denied video
recording privileges at a public space.20 Specifically, the Whiteland Woods Plaintiff
had attempted to record a planning commission meeting.21 Although recognizing that
other jurisdictions, as well as the court below, had analyzed the video recording of
public events/areas under the speech forum analysis, the Third Circuit was “not
convinced that forum analysis is necessary to resolve such restrictions on the right of
access.”22 The Whiteland Woods Court found that the forum approach did not truly
cover the video recording of public events, as, at its core, such analysis applies to
“expressive or speech activity.”23 In preventing the Whiteland Woods Plaintiff from
videotaping the planning commission meeting, the Third Circuit reasoned that
Defendants had not “interfered with [Plaintiff’s] speech or other expressive
18
See e.g., Whiteland Woods L.P. v. Township of West Whiteland, 193 F.3d 177 (3d Cir.
1999); Capital Cities, 797 F.2d 1164.
19
193 F.3d 177.
20
Id.21
Id.22
Id. at 182-183.
23
Id. at 183.
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activity.”24 Instead, “the alleged constitutional violation consisted of a restriction on
[Plaintiff’s] right to receive and record information.”25 Much the same can be said of
Plaintiff in the case at bar’s purported constitutional affront. Plaintiff’s attempt to
videotape the interior of the Recorder of Deed’s office was not, in and of itself,
expressive activity. Rather, Plaintiff was gathering information to be used in a later
form of speech – apparently an internet video. This is, therefore, an issue of the right
to access government information under the guise of the First Amendment.
Although the U.S. Supreme Court has recognized that “news gathering is not
without First Amendment protections,” this “in no sense implie[s] a constitutional
right of access to news sources.”26 Stated more precisely, “[t]he public’s interest in
knowing about its government is protected by the guarantee of a Free Press, but the
protection is indirect. The Constitution itself is neither a Freedom of Information Act
24
Id.25
Id.; see also D’Amario v. Providence Civic Ctr Authority, 639 F.Supp.1538, 1541
(D.R.I. 1986) (“the issue before the court is not whether the plaintiff may be restricted from
communicating or displaying information he has already garnered. His problem is precisely the
opposite: he has come away empty-handed, having been denied license to let his camera rove at
will. Seen in its true perspective, the issue is whether a photographer (or photojournalist) may
have special rights of access to information, that is, to subjects which he desires to photograph.
The distinction is a critical one”)(internal quotations omitted)(emphasis added); Westmoreland v.
Columbia Broad. Sys., Inc, 752 F.2d 16, 21-22 (2d Cir. 1984)(“[w]hatever public forum interest
may exist in litigation, that interest is clearly a speaker’s interest, not an interest in access to the
courtroom. Because of the ability of neither General Westmoreland nor CBS to express views at
trial is altered by the presence or absence of television cameras, [the] public forum argument is,
by itself, inapposite”)(emphasis added).
26
Houchins v. KQED, Inc., 438 U.S. 1, 10 (1978).
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nor an Official Secrets Act.”27 Importantly, neither does the press have a greater right
to access government information.28 The reasoning behind these holdings is the
premise that the judicial branch is ill equipped to make case-by-case determinations,
as to which information the public is entitled.29 The Supreme Court feared that to find
otherwise would result in a series of inconsistent rulings by various different courts.30
Instead, the Supreme Court concluded that “the choice as to the most effective and
appropriate method [for disclosure of government information] is a policy decision
to be resolved by legislative decision.”31 Further supporting its point, the Supreme
Court referenced “The Freedom of Information Act” as an example that “[f]orces and
factors other than the Constitution must determine what government held data are to
be made available to the public.”32
Despite announcing that, as a general rule, there is no First Amendment
guarantee of access to all government information, the Supreme Court has, on
27
Id., at 14 (emphasis added).
28
Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (“the First Amendment does not
guarantee the press a constitutional right of special access to information not available to the
public generally”).
29
Houchins, 438 U.S. at 14 (“[b]ecause the Constitution affords no guidelines, absent
statutory standards, hundreds of judges would...be at large to fashion ad hoc standards, individual
cases, according to their own ideas of what seems desirable or expedient”)(internal quotations
omitted).
30
Id.31
Id., at 13.
32
Id., at 13 n.7.
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occasion, determined that the First Amendment does protect both the public’s and the
press’s right to compel certain types information.33 The Third Circuit in Capital
Cities Media, Inc. v. Chester, nicely and succinctly summarized the two part test for
recognition of a First Amendment right of access as follows: 1) “access [to the
information in question] has traditionally been afforded to the public” and 2) “that
access plays a significant positive role in the functioning of the particular process in
question.”34
Thus far, the U.S. Supreme Court has applied this test only to situations
involving access to certain judicial proceedings.35 The Third Circuit, however, has
considered this issue as concerns video reporting, in the aforementioned Whiteland
Woods, which this Court, again, finds of great aid.36 To this two part test, the Third
Circuit, in the context of video recording, added the consideration of alternative
33
See e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)(holding that
public has First Amendment right of access to criminal trials); Globe Newspaper Co. v. Superior
Court, 457 U.S. 596 (1984) (holding that public has First Amendment right of access to trials
involving minor victims of sexual offenses); )Press-Enterprise Co. v. Superior Court, 464 U.S.
501 (1984) (holding that public has First Amendment right of access to voir dire proceedings); El
Vocero de Puerto Rico v. Puerto Rico, 508 U.S. 147 (2004) (holding that public has First
Amendment right of access to preliminary hearings).
34
Capital Cities, 797 F.2d at 1174 (citing Press-Enterprise Co. v. Superior Court, 478
U.S. 1, 7-8 (1986)).
35
See e.g., Richmond Newspapers 448 U.S.; Globe Newspaper Co., 457 U.S. 596; Press-
Enterprise Co., 464 U.S. 501; El Vocero, 508 U.S. 147.
36
193 F.3d 177.
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means of access.37 That is, even if access has been historically permitted, and is of
functional significance, the government may, in some instances, still restrict this
access, without impinging upon First Amendment protections.38 Although the
Whiteland Woods Plaintiff may have been prohibited from videotaping the planning
commission meeting, he was not “prohibit[ed] from attending meetings or...gathering
information by other means...Spectators were free to take notes, use audio recording
devices, or even stenographic recording.”39 Further, the Court did not find an
“essential nexus between the right of access and the right to videotape.”40 As long as
access to the information is available in some form, the First Amendment remains
untarnished.
Applying this constitutional analysis to the Plaintiff in this matter, it’s clear
from Plaintiff’s pleading that Plaintiff had no First Amendment right to film the
Recorder of Deeds office. Indeed, even assuming arguendo that Plaintiff were
constitutionally protected, his access was not so restricted as to be deemed a
37
Id., at 183 (“[t]he First Amendment does not require states to accommodate every
potential method of recording its proceedings, particularly where the public is granted alternative
means of compiling a comprehensive record”)(emphasis added)(citing Combined
Communicating Corp. v. Finesilver, 672 F.2d 818 (10th Cir. 1982) (upholding ban on television
coverage of court-ordered negotiations where member of the press were permitted to attend the
meetings and take notes); Garrett v. Estelle, 556 F.2d 1274 (5th Cir. 1977)(upholding prison’s
prohibition on filming execution because there were other methods of informing the public of the
execution); Johnson v. Adams, 629 F.Supp. 1563(E.D. Tex. 1986)(holding county commissioners
may ban video recording of meetings where audiotaping is permitted)).
38
Whiteland Woods, 193 F.3d at 183.
39
Id.40
Id.14
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constitutional violation. As an initial matter, Plaintiff makes no argument for the
“existence of a tradition of public access to” the interior offices of the Recorder of
Deeds.41 Furthermore, the Plaintiff does not contend that the function of the Recorder
of Deeds is positively promoted by granting access to its interior offices. Thus, the
Court finds that filming the employees of the Recorder of Deeds in their cubicles or
at the water cooler fails to create a database of property ownership, among other
raisons d’etre. “As [Plaintiff] cannot satisfy both tests of [historical access and
function], a qualified First Amendment right of public access does not attach.”42
Assuming for the moment, that Plaintiff had demonstrated that public access
to the Recorder of Deeds office has been historically permitted, and that this access
furthers the Recorder of Deeds’ functions, the Court would still determine the State
Actor Defendants’ conduct not to be in violation of the First Amendment. The Court
recognizes that with respect to, for example, the various property records found in the
Recorder of Deeds office, the argument can be made that such documents have been
both historically open to the public, and that the function of the Recorder of Deeds
is to compile and make these items available for public use. However, even if this
position had been asserted by Plaintiff, and the Court were to accept that as a fact,
Plaintiff cannot be said to have been denied access to these records. Although the
State Actor Defendants’ effort to enforce a nonexistent policy would have prevented
Plaintiff from videotaping his review of the records, no indication or allegation exists
41
Capital Cities, 797 F.24 at 1175.
42
Id., at 1176 (citing Press-Enterprise, 478 U.S. at 7-8)(internal quotations omitted).
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that Plaintiff would not have been able to access the records by alternative means. For
example, Plaintiff could have been able to go through the numerous documents held
in the Recorder of Deeds office, making notations either on a notepad or his tablet
computer of their contents. Additionally, it is possible that a computerized scan or a
photocopy of these documents would have been available to him. The point of the
matter is, as the Whiteland Woods Court noted, there is no “essential nexus between
the right of access and the right to videotape.”43 Plaintiff had ample alternative
options to access the documents held by the Recorder of Deeds. That he was not
permitted to videotape this access is not significant.
In formulating his position on the First Amendment right to videotape the
Recorder of Deeds office, Plaintiff repeatedly cites to the U.S. District Court for the
District of Rhode Island’s decision in Cirelli v. Town of Johnston School Dist.44
Plaintiff vigorously asserts that Cirelli puts into question the holding of Whiteland
Woods. Although (unlike Whiteland Woods) Cirelli has no precedential impact on a
Delaware court, an analysis of it demonstrates that it is inapposite to the issues in the
case at bar. Briefly, Cirelli involved the prohibition of a teacher filming alleged
threats to the health and safety of the students and other staff of the public school, at
which she was employed.45 The Cirelli Court held that, absent a considerable
disruption to “the government’s interest in efficient performance of its duties,” the
43
193 F.3d at 183.
44
897 F.Supp. 663 (1995).
45
Id.16
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“First Amendment right of a government employee to comment on matters of public
concern” may not be restricted.46 The Court notes that the holding of Cirelli, and the
authority on which it relies, presupposes that the Plaintiff alleging the violation of the
First Amendment is a government employee. Based upon the pleadings alone, there
is no indication that Plaintiff was, at the time of the alleged restriction, an employee
of the State of Delaware. Stated simply, Plaintiff does not fall into this narrow First
Amendment protection.47
Accepting all of the factual allegations in Plaintiff’s Complaint as true, the
Court finds, that as a matter of law, State Actor Defendants have not violated the
Plaintiff’s First Amendment right to access government information. Within the
context of video recording the offices of the Recorder of Deeds, either Plaintiff had
no right to access, or, assuming that he did, Plaintiff had multiple alternative modes
46
Id., at 665 (emphasis added)(citing Pickering v. Bd. of Educ., 391 U.S. 563 (1968)).
47
The Court further notes Plaintiff’s citation to a number of extra-jurisdictional cases
whose holdings, although involving a video reporter attempting to film a public event, were not
based upon First Amendment analysis: Iacobucci v. Boulter, 1997 WL 258494, at *1 (D. Mass.
Mar. 26, 1997)(holding rested upon whether Officer had probable cause to arrest video reporter
for recording public event, implicating the Fourth Amendment); Tarus v. Borough of Pine Hill,
916 A.2d 1036 (N.J. 2007) (holding found that video reporter had right to access public event
because of New Jersey common law permitting public access to public events)(emphasis added);
Peloquin v. Arsenault, 162 Misc. 2d 306 (N.Y. Sup. Ct. 1994) (finding that ban on video
recording of Village Board’s meetings violated New York State Open Meetings Law); Matter of
Csorny v. Shoreham Wading Riv. Cent. School Dist., 305 A.D. 2d 83, 91 (N.Y. App. Div. 2003)
(finding that ban on video recording by public school district violated New York State Open
Meetings Law. However in so doing, court recognized that the First Amendment does not
“guarantee the right to videotape government meetings”)(citing Whiteland Woods, 193 F.3d
177)).Needless to say, these cases are all inapplicable to the First Amendment question presently
before the Court.
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of gathering legitimate information. Therefore, the Court GRANTS the State Actor
Defendants’ motion for judgment on the pleadings, with respect to Plaintiff’s First
Amendment claims.48
b. Intentional/Negligent Infliction of Emotional Distress Claims49
Defendants move for judgment on the pleadings of Plaintiff’s intentional and
negligent infliction of emotional distress claims. As previously noted, the Court
accepts all allegations in Plaintiff’s Complaint as true.50 The Court reviews the
claims’ sufficiency as a matter of law.51
The Court considers the motion of State Actor Defendants first. The State
Actor Defendants argue that, as a matter of law, Plaintiff cannot assert claims of
intentional or negligent infliction of emotional distress against them, as they are
protected by Delaware’s County and Municipal Tort Claims Act, 10 Del. C.§ 4010,
et seq. (“Tort Claims Act”). The Torts Claims Act provides “immunity for all
government entities and their employees with certain narrow exceptions.”52 This
48
The Court, thus, for the same reasons, DENIES Plaintiff’s partial summary judgment
motion on the identical matter.
49
Only Defendants have filed arguments concerning the Intentional and Negligent
Infliction of Emotional Distress claims.
50
Dickerson, 2012 WL 2236709 at *1.
51
Id.52
Sekscinski v. Harris, 2006 WL 509541, at *3 (Del. Super. Ct. Jan. 18, 2006); see also
10 Del. C. § 4011(a) stating in relevant part: “all governmental entities and their employees shall
be immune from suit on any and all tort claims...”
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applies both to torts involving negligence and to intentional torts.53 The Court finds
that the State Actor Defendants’ status as government employees is not in dispute.54
Therefore, unless either Defendant fits into one of the exceptions to the Tort Claim
Act’s immunity, Plaintiff’s claims are statutorily barred.
The Tort Claims Act contains two exceptions to general tort immunity, found
in 10 Del. C. § 4011 and § 4012. Section 4011(c) provides in relevant part:
An employee may be personally liable for acts or omissions causing property
damage, bodily injury or death in instances in which the governmental entity
is immune under this section, but only for those acts which were not
performed within the scope of employment or which were performed with
wanton negligence or willful and malicious intent.55
The Court deems the § 4011(c) exception most relevant to Plaintiff’s claim of
intentional infliction of emotional distress. In Delaware, the Restatement (Second) of
Tort’s definition of this cause of action controls: “[o]ne who by extreme and
outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress.”56 Plaintiff asserts that he
is suing the State Actor Defendants in both their “official” and “personal”
53
Willis v. City of Rehoboth Beach, 2005 WL 1953208, at *3 (Del. Super. Ct. Jun. 24,
2005) (“[Tort Claims Act] makes no distinction of tort claims for damages based upon the state
of mind of the torfeasor”).
54
Indeed, in alleging constitutional violations by Defendant Malone and Defendant
McKenna, Plaintiff, by necessity, admits to their government employment.
55
10 Del. C. § 4011(c).
56
Doe v. Widley, 2012 WL 1408879, at *4 (Del. Super. Ct. Mar. 29, 2012)(emphasis
added).
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capacities.57 Section 4011(c), permits the intentional infliction of emotional distress
claim only if the State Actor Defendants were acting in their personal capacities
(implying conduct outside of scope of employment), or, if in their official capacities,
then with the requisite intent. However, Delaware courts have held that the “bodily
injury” contemplated by § 4011(c) does not include emotional distress.58 Plaintiff has
pled no other injury. Thus, the § 4011(c) exception to the Tort Claims Act’s immunity
does not apply to Plaintiff’s claim for intentional infliction of emotional distress
against the State Actor Defendants.
The same can be said of the § 4012 exceptions. Section 4012 concerns the
negligent acts of government employees, providing that, with a few limited
exceptions, such acts are immune from liability.59 To the extent Plaintiff’s claim for
negligent infliction of emotional distress might proceed, it would have to be covered
57
Complaint, at ¶ 5-6.
58
Dickerson, 2012 WL 2236709 at *2 (“[i]t is well established allegations of emotional
distress do not amount to bodily injury for purposes of [§ 4011(c)]”); McCaffrey v. City of
Wilmington, 2012 WL 3518119, at *3 (Del. Super. Ct. Aug. 9, 2012)(“this Court...reaffirm[s] the
principle that emotional distress does not constitute bodily injury for purposes of the exception to
municipal immunity under Section 4011(c)”).
59
Sekscinski, 2006 WL 509541 at *3. Exceptions limited to governmental entity: “1)in its
ownership, maintenance or use of any motor vehicle, special mobile equipment, trailer, aircraft or
other machinery or equipment, whether mobile or stationary; 2) in the construction, operation or
maintenance of any public building or appurtenances thereto, except as to historic sites or
buildings, structures, facilities or equipment designed for use primarily by the public in
connection with public outdoor recreation; 3) in the sudden and accidental discharge, dispersal,
release or escape of smoke, vapors, soot, fumes, acids, alkalines and toxic chemicals, liquids or
gases, waste materials or other irritants, contaminants or pollutants into or upon land, the
atmosphere or any watercourse or body of water” 10 Del. C. § 4012.
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by one of these exceptions. However, “none of those exceptions is applicable in the
case at issue.” 60 As a matter of law, Plaintiff’s claim of negligent infliction of
emotional distress against the State Actor Defendants is barred by the Tort Claims
Act. State Actor Defendants’ motion is GRANTED.
The Court next turns to the negligent and intentional infliction of emotional
distress claims asserted against Defendant Paradee. As it has been established that
Paradee is not a government employee, the Tort Claims Act does not protect him from
liability to Plaintiff. The Court, therefore, proceeds with the review of Plaintiff’s
claims.
Plaintiff’s emotional distress claim against Defendant Paradee is premised on
the allegation that Paradee either advised or ordered Malone and/or McKenna to
expel Plaintiff from the Recorder of Deeds office. Although thinly formulated, the
Court understands the Plaintiff to aver that he suffered emotional distress, as a result
of Defendant Paradee’s having prevented Plaintiff from videotaping the interior of
the office.
As a starting point, the Court can expeditiously dispose of Plaintiff’s negligent
infliction of emotional distress claim. In Delaware “[n]egligent...emotional distress
requires some physical manifestation of the emotional harm caused.”61 Where
“[plaintiff] fail[s] to offer any proof or even allege with specificity what type of
60
Sekscinski, 2006 WL 509541 at *3.
61
Pekala v. E.I. duPont de Nemours Co., Inc., 2006 WL 106275, at *4 n.12 (Del. Super.
Ct. Mar. 31, 2006).
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physical injury he suffered” the claim must, by necessity, fail.62 Here, where Plaintiff
has merely alleged suffering emotional distress, without any reference to physical
manifestations, the Court finds, as a matter of law, that Defendant Paradee cannot be
liable to Plaintiff on this claim as Plaintiff has pled it.
Where “no claim of physical harm [is made] in the complaint, the conduct
causing emotional distress must...be established to be intentional and outrageous.”63
This leads the Court to Plaintiff’s claim of intentional infliction of emotional distress
against Defendant Paradee. As has been stated, “[o]ne who by extreme and
outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress.”64 “Outrageous conduct is
considered conduct with exceeds the bounds of decency and is regarded as intolerable
in a civilized community.”65 “Severe emotional distress occurs where distress
inflicted is so severe that no reasonable man could be expected to endure it.”66
Based upon the sparseness of facts alleged by Plaintiff concerning any
outrageous conduct of Defendant Paradee, or the severe emotional distress that
Plaintiff suffered, this Court must grant Defendant Paradee’s motion for judgment on
the pleadings on this claim. The Court is further convinced of the necessity to do so,
62
Waterhouse v. Hollingsworth, 2010 WL 8250801, at *6 (Del. Super. Ct. May 3, 2010).
63
Pekala, 2006 WL 106275 at *4.
64
Doe, 2012 WL 1408879 at *4.
65
Pekala, 2006 WL 106275 at *4 (internal quotations omitted).
66
Doe, 2012 WL 1408879 at *4 (internal quotations omitted).
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given a prior Delaware court’s description of the extent of outrageousness that
Defendant Paradee’s actions would have to reach, in order to justify liability:
It is not enough that a Defendant acted with tortuous or criminal intent,
intended to inflict emotional distress, or even that his conduct has been
characterized by malice or a degree of aggravation that would entitle the
plaintiff to punitive damages under another tort.67
Once more, following the motion for judgment on the pleadings standard, assuming
all Plaintiff’s factual allegations to be true, preventing Plaintiff from videotaping
cannot reach the level of extreme and outrageous conduct contemplated by the above
description. Thus, as a matter of law, Defendant Paradee is not liable to Plaintiff for
intentional infliction of emotional distress. The Court GRANTS Defendant Paradee’s
motion as to both claims of emotional distress.
III. Plaintiff’s Motion For Reconsideration
Plaintiff moves for reconsideration of this Court’s prior denial of video
recording privileges during a discovery hearing before Commissioner Freud.
Plaintiff’s argument, in essence, is that this Court misinterpreted Supreme Court
Administrative Directive No. 155, concerning the use of electronic media within the
Courtroom.
In Delaware, the law concerning motions for reargument is well settled: “[a]
motion for reargument will be denied unless the Court has overlooked controlling
precedent or legal principles, or the Court has misapprehended the law or facts such
67
Pekala, 2006 WL 106275 at *5 (citing Thomas v. Hartford Mut. Ins. Co., 2004 WL
1102362, at *3 (Del. Super. Ct. Apr. 7, 2004)).
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as would have changed the outcome of the underlying decision.”68 Furthermore, “[a]
motion for reargument is not intended to rehash the arguments already decided by the
Court.”69
The Court’s position regarding Supreme Court Administrative Directive No.
155 remains the same. By this Directive,“trial judges in their discretion” retain the
ability to “permit electronic media coverage in certain proceedings.”70 This Court
chose not to allow the electronic media coverage at issue. The Court has neither
misapprehended the law nor overlooked controlling precedent. Plaintiff is merely
“rehashing arguments already decided by the Court.”71 The Court DENIES Plaintiff’s
motion for reconsideration.
The Court notes that, couched within the motion for reconsideration, there is
an allegation that Plaintiff’s likeness was posted throughout the Kent County
Courthouse. Plaintiff further asserts that he filed a “Public Information” request with
the Prothonotary’s office.72 Simply as a matter of observation, the Court is unaware
of any images of Plaintiff being displayed within the Courthouse. In any event, this
is not the proper filing by which to raise either concern. Thus, the Court takes no
68
Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Ct. Jan. 31, 2006)
(internal quotations omitted).
69
Id., at *2.
70
See Ex. 1 to Defendants’ Joint Answer & Opposition to Plaintiff’s Motion for
Reconsideration.
71
Kennedy, 2006 WL 488590 at *2.
72
Plaintiff’s Motion for Reconsideration, at ¶ I.
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action.73
CONCLUSION
For the foregoing reasons the Court: 1) GRANTS Plaintiff’s motion to
amend the Complaint; 2) GRANTS Defendants’ motions for judgment on the
pleadings; 3) DENIES Plaintiff’s motion for partial summary judgment; and 4)
DENIES Plaintiff’s motion for reconsideration.
IT IS SO ORDERED.
/s/ Robert B. Young
J.
RBY/lmc
File & ServeXpress
oc: Prothonotary
cc: Counsel
Christopher King (via certified mail)
Opinion Distribution
File
73
Into this already over-saturated motion for reconsideration, Defendant reasserts his
prior position regarding a stay of discovery pending resolution of dispositive motions. Looking
past the fact that this request’s placement within this filing was improper, the Court has already
made its decision regarding the stay of discovery pending disposition of the pending motions .
See this Court’s Order dated May 21, 2015. The ruling stands.
25