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City of Keene v. Cleaveland

Supreme Court of New Hampshire

June 9, 2015

City of Keene
v.
James Cleaveland & a

Argued October 15, 2014.

Page 254

Cheshire.

Gallagher, Callahan & Gartrell, P.C., of Concord ( Charles P. Bauer and Robert J. Dietel on the brief, and Mr. Bauer orally), for the petitioner.

Backus, Meyer & Branch, LLP, of Manchester ( Jon Meyer on the brief and orally), for respondents James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, and Graham Colson.

Respondent Pete Eyre, for himself, filed no brief.

Nixon Peabody LLP, of Manchester ( Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord ( Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

New Hampshire Municipal Association, of Concord ( Stephen C. Buckley, on the brief and orally) as amicus curiae.

BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

OPINION

Page 255

Bassett, J.

The petitioner, the City of Keene, appeals an order of the Superior Court ( Kissinger, J.) dismissing its claims of tortious interference with contractual relations, negligence, and civil conspiracy, and denying its request for preliminary and permanent injunctive relief. The City filed suit against the respondents, James Cleaveland, Garrett Ean, Kate Ager, Ian Bernard a/k/a Ian Freeman, Graham Colson, and Pete Eyre, because they followed closely behind the City's parking enforcement officers (PEOs) on their daily patrols through downtown Keene, videotaping them, criticizing their work, and putting money into expired parking meters before a parking ticket was issued. After an evidentiary hearing, the trial court dismissed the action, ruling that the City's claims were barred by the First Amendment to the United States Constitution. U.S. Const. amend. I. The trial court also denied the City's petition for preliminary and permanent injunctive relief. We affirm in part, vacate in part, and remand.

I

The following facts are drawn from the City's pleadings, or were adduced at the evidentiary hearing. The City employs PEOs to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a " save." When the respondents " save" a vehicle, they leave a card on the vehicle's windshield that reads: " Your meter expired! However, we saved you from the king's tariff!" The respondents also: videotaped the PEOs from a close proximity;

Page 256

called the PEOs names such as " f*****g thief," " coward," " racist," and " b***h" ; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a " threat against [the] people." The PEOs testified that they repeatedly asked the respondents to stop their activities, complained to the Keene police department, and reported the respondents' activities to the city attorney.

In 2013, the City petitioned for preliminary and permanent injunctive relief, alleging tortious interference with contractual relations and civil conspiracy to commit tortious interference.[1] The City asserted that the respondents, acting individually and in concert, tortiously interfered with the City's contractual relations with the PEOs by engaging in persistent and ongoing efforts to prevent them from performing their official duties, thus creating a hostile work environment for the PEOs. The City sought to enjoin the " Respondents, or anyone under their direction, supervision, employment, or control" from " coming within," " video recording," or " communicating with any PEO" within " a safety zone of fifty (50) feet of any PEO while that PEO is on duty performing his or her employment duties as required by the City of Keene." The City did not seek to prevent the respondents from filling meters. The petition contained the following statement:

[The City] does not seek an Order to prevent Respondents from exercising their constitutional rights to video record the PEOs from a comfortable remove or otherwise to express their opinion; rather, [the City] seeks only to prevent Respondents from taunting, interfering with, harassing, and intimidating the PEOs by establishing a safety zone between the PEOs and [the] Respondents while the PEOs are performing their duties.

The respondents filed a motion to dismiss, arguing that the City's petition failed to state a claim for tortious interference, and that the claim violated their right to free speech under the First Amendment of the Federal Constitution and Part I, Article 22 of the New Hampshire Constitution, as well as their right to government accountability under Part I, Article 8 of the New Hampshire Constitution. See U.S. Const. amend. I; N.H. Const. pt. I, arts. 8, 22.

Shortly thereafter, the City filed a separate civil complaint against the respondents, requesting a jury trial and seeking money damages for injuries sustained by the City because of the respondents' tortious interference with contractual relations and negligence. These claims were based upon the same ...


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