The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
YORK, ss. DOCKET NO. CV-04-018
PRr. yf oe 4 fii
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COURTNEY J. GAVIN,
Plaintiff
Vv. ORDER AND DECISION
JOHN D. KENNEDY and oe
PETER D. FAULKNER, aCey i
Defendants
iwAY 21 2004
The plaintiff in this case Courtney Gavin was the defendant in a protection from
harassment action, see 5 M.R.S.A. §4651-et seq., brought by his neighbor Lorraine
Fecteau in the District Court in Springvale. A temporary order for protection from
harassment was signed and a hearing date scheduled for October 3, 2003. It is claimed
by Mr. Gavin that on October 3, 2003 District Court Judge John D. Kennedy improperly
contacted Peter D. Faulkner, the lawyer for the Fecteau family, and, after a brief ex parte
communication continued the hearing that had been scheduled for October 3, 2003. It is
also alleged that on December 5, 2003 Judge Kennedy further denied Mr. Gavin his
right to be heard by hearing a motion for preliminary injunction filed by Attorney
Faulkner in a related case without giving Mr. Gavin a chance to respond, by not hearing
Mr. Gavin’s motion to dismiss, and by issuing a consolidated interim order governing
both the protection from harassment action and the separate civil suit filed by Mr.
Gavin against Ms. Fecteau and her husband. That consolidated interim order restricted
Mr. Gavin’s access to real estate that he believes is on his side of the boundary with the
Fecteaus. The Fecteaus were also prohibited from using the disputed land.
While Mr. Gavin has no direct evidence that any improper ex parte
communication took place or that any conspiracy existed to deprive him of his
constitutional rights he believes that wrong doing must have taken place as no other
plausible explanation for what happened exists. He has brought suit against both Judge
Kennedy and Mr. Faulkner claiming deprivation of his civil rights under 42 U.S.C.
§1985. Both defendants have filed motions to dismiss, written arguments were
submitted and oral argument held.
On a motion to dismiss, the court must assume that what the plaintiff claims is
true. If true, would the plaintiff be entitled to any relief through his lawsuit? It should
be noted that Judge Kennedy, through the assistant attorney general who is
representing him, has presented a different view of what took place which would
suggest that nothing even remotely improper took place. It is not the purpose of a
motion to dismiss to determine what actually did or did not happen.
Mr. Gavin has sought a variety of remedies against Judge Kennedy including
monetary damages and injunctive relief. Judge Kennedy is absolutely immune from
civil suits for damages arising from his actions taken in his judicial capacity. There are
numerous decisions establishing this proposition. In Stump v. Sparkman, 435 U.S. 349
(1978) an Ohio judge was sued for signing an order authorizing a tubal ligation of a
minor who did not consent and was unaware of the nature of the surgical procedure
that was performed upon her. That judge had judicial immunity as he had jurisdiction
over that type of case and his acts, however wrongful, were judicial acts. The actions of
Judge Kennedy were judicial acts of granting or denying motions, conducting hearings
and signing orders. The two cases that he acted upon were clearly within the
jurisdiction of the Maine District Court. Judge Kennedy has an absolute immunity from
suit. Also see an endorsement of and recognition of this principle in Slotnick v.
Staviskey, 560 F.2d 31, 32 (1° Cir. 1977), Snyder v. Talbot, 836 F. Supp. 19, n.1. (D. Me.
1993), an Richards v. Ellis, 233 A.2d 37, 38-9 (Me. 1967).
None of the decisions of Judge Kennedy were final decisions, remaining trial
level rights exist, appeal rights exist and procedures for judicial discipline, in
appropriate cases, exist. See concerns of Justice Powell in dissent in Stump at 369, 370.
The request for injunctive relief against Judge Kennedy should also be dismissed
as the companion real estate case has already been transferred to the Superior Court for
a hearing under a standard York County procedure involving the trial of lengthier
District Court non-family cases in the Superior Court. Additionally, Judge Kennedy has
recused himself from further proceedings and appellate rights exist.
As none of the remaining claims have legal merit the motion to dismiss
regarding defendant Kennedy will be granted.
Attorney Faulkner has also filed a motion to dismiss. He claims that the civil
rights action against him should be dismissed because he is not a “state actor”. While
this is true, a person who is a private party and not an official of the State of Maine can
be liable if there is involvement of a state official, Judge Kennedy, with Mr. Faulkner in
the claimed conspiracy. See, for example, Adickes v. Kress & Co., 398 U.S. 146, 152 (1970).
Therefore, Mr. Faulkner’s argument that there is no “state action” and he is nota “state
actor” fails. As then Chief Judge Coffin stated, “...we have taken the position that
private parties who conspire with immune officials may be sued under §1983.” Slotnick
at 32.
Defendant Faulkner has also argued that Mr. Gavin's complaint does not have
sufficient specificity. While the accusations may have been false and only the product
of an overly suspicious mind there is sufficient detail alleged as to what is claimed to
have happened. Slotnick at 33-4.
Attorney Faulkner has an additional argument which is persuasive. He has been
sued, in part, pursuant to 42 U.S.C. §1985. It is important to examine the actual text of
that section and some of the Supreme Court decisions interpreting it. Subsection (1) is
entitled “Preventing officer from performing duties “and has no applicability. The first
part of subsection (2) prohibits the use of force, intimidation or threat to interfere with
witnesses or jurors in a federal court and is not applicable for multiple reasons. The
second part of subsection (2) states
“... or if two or more persons conspire for the purpose of impeding, hindering,
obstructing, or defeating, in any manner, the due course of justice in any State or
Territory, with intent to deny to any citizen the equal protection of the laws, or to
injure him or his property for lawfully enforcing, or attempting to enforce, the
right of any person, or class of persons, to the equal protection of the laws.”
At first look that provision might be applicable here if Mr. Gavin’s allegations turn out
to be correct. However we need to examine Kush v. Rutledge, 460 U.S. 719, 724-5 (1983)
and Griffin v. Breckenridge, 403 U.S. 88, (1971). As Kush indicates at 725 the second part
of §1985(2) “... contains language requiring that the conspirators’ actions be motivated
by an intent to deprive their victims of the equal protection of the laws.” In this case
Mr. Gavin cannot establish any “class-based animus”, Kush at 726. His status as a white
adult male who did not have an attorney does not afford him the protections provided
by 42 USC §1985 which is derived from the Civil Rights Act of 1871. See, for example,
the final two portions of §1985 found at §1985(3) which protect against the Ku Klux
Klan and similar cowardly bigots who “go in disguise on the highway...” and which
provide some protection for federal voting rights. Also see Snyder at note 9 on page 25,
“Class-based animus” goes beyond race but does not extend as far as Mr. Gavin would
like. Lastly the portions of the complaint based on Title 18 U.S.C. or Title 17-A M.RS.A.
fail as they either apply to federal court proceedings or fail to provide a private cause of
action.
The entry is:
Motions to dismiss are granted. Complaint dismissed.
Dated: April 14, 2004
Saul (oh rete
Paul A. Fritzsche
Justice, Superior Court
Courtney J. Gavin (pro se) - PL
Peter J. DeTroy, Esq. - DEF. PETER D. FAULKNER
Russell B. Pierce, Jr., Esq.
Christopher C. Taub, AAG - DEF. JOHN D. KENNEDY