Yesterday it came to my attention that a fellow named Mel Thompson has brought suit against a number of folks, including some bloggers. (Connecticut Bob interviews Thompson here) Apparently he was frustrated in an attempt to run for Mayor of Derby, and he has now started a federal court action. I must confess that I was blissfully unaware of these events until yesterday, occurring as they are on the other side of the state. We here in the east are normally ignored by the rest of the state, and I sometimes choose to return the favor.
In any event, I am in a position to review the complaint Mr. Thompson filed with a somewhat unbiased perspective, since I remain pretty much unaware of the background facts. All I know is what I’ve read in the complaint (available from Connecticut Bob at the link above). For what it’s worth, here’s my take.
I’m going to assume, by the way, that the well pleaded facts are substantially true. An allegation that the defendants “conspired” or words to that effect is not a well pleaded fact, it is simply a legal conclusion. One must plead and prove underlying facts to prove a conspiracy. Another caveat: Most of what I’ll say here is off the top of my head, based on what I’ve learned in my 32 years at the bar.
First, this is a federal complaint, meaning that the court has jurisdiction over the case (since everyone involved is a Connecticut resident) only if there is a federal question involved. Claims of libel and slander (defamation), for instance, can be added as “pendent” claims only if there is some federal issue arising out of the same cluster of facts. This is particularly important in the case of the action against the bloggers, since there doesn’t seem to be anything alleged that actually connects them with the facially legitimate federal claims. He appears to be aware of the weakness of the conspiracy claims. I don’t pretend to be an expert, but it struck me as odd that he alleges that the defendants conspired “directly and indirectly”. I’m not sure there’s any such a thing as an indirect conspiracy. Even Adickes v. Kress required a meeting of the minds.
The federal claims all involve civil rights claims. Some require proof that the person taking a specific action was involved in “state action”, but some only require proof that the persons sued were involved in a conspiracy to deprive the plaintiff of his civil rights.
Assuming the truth of the allegations, it certainly appears that Mr. Thompson may have a claim against Laura Wabno, the town clerk that allegedly failed to notarize his petitions and failed to pass them on to the appropriate state officials. Whether that claim rises to the level of a civil rights claim is another story, but at least he’s in the ballpark on that one.
Beyond that, the case gets a bit murky. First, although the word conspiracy appears often in the complaint, there are precious few, if any, facts alleged from which one can conclude that a conspiracy exists. A conspiracy consists of concerted action by two or more individuals to use legal means to achieve illegal ends, illegal mean to achieve a legal end, or illegal means to achieve an illegal end. In any case, there has to be concerted action. If you and I have the same objective, but pursue it independently, the fact that we seek the same outcome does not make us conspirators.
The complaint starts off by alleging a conspiracy among the town clerk, the Mayor of Derby, an assistant Town Clerk a blogger (Connecticut’s Smallest City Blog) and a commenter on that blog. Mr. Thompson goes to great lengths to make it clear that the Town of Derby was in no way, shape or form connected to the conspiracy. I assume that he wants to make it clear he is suing the defendants as individuals only. I’m not sure why, unless he’s trying to deny them insurance coverage. In any event, in the introductory paragraphs of the “Facts” section, he alleges the existence of a conspiracy, but alleges no concrete facts in support of that allegation. He then details the failure of the town clerk to properly process his petition, but relates no actual facts from which one can conclude that the screw up was anyone’s but hers. After relating this chain of events he abruptly switches gears, and alleges that the “Derby defendants” (everyone except the elections officer, Bysiewicz and Connecticut Local Politics) engaged in a conspiracy to deny him ballot access by directing racial epithets at him or by allowing others (in the case of the blogger) to do so.
I don’t see that he pleads a single fact from which one can conclude that there was any connection between the town clerk’s actions and those of any of the other defendants. Oddly enough, he chose not to sue the only person that he quotes uttering a racial epithet or using language that can be considered a threat.
My guess is that most of these defendants will get the cases against them thrown out relatively early, though he may be able to spin it out somewhat by claiming a need to conduct discovery. The claims against Connecticut Local Politics and its proprietors are particularly vulnerable. Unless I’m missing something, only Count Twelve (Defamation) is aimed at them. That’s a state law claim, and you can’t get away with only asserting state claims against some defendants by trying to lump them in with other defendants and unrelated claims. Oddly enought, unless I’m once again missing something, there are no federal claims alleged against Bysiewicz or her underling. So they should come out of the case too.
Some more points on the defamation claims. First, as a public figure he has to prove actual malice, which he hasn’t alleged. In addition, I believe he has to allege the specific defamatory statements, or at least allege with sufficient particularity so that the defendants know what he’s talking about. Maybe he’s satisfied that requirement, but if so, just barely. I haven’t read the posts or comments to which he refers, but my guess is that they involve protected speech. As Harry Truman once said, “If you can’t stand the heat, get out of the kitchen”. For better or for worse, politics is a rough and tumble business. He alleges three specific defamatory acts: The use of a racial epithet, an allegation that he is mentally ill, and another that he bought his law degree. The first is not defamation (publication of an untrue statement); the second, in context, was probably an expression of opinion, and the third is probably fair comment. From what I’ve been able to find out about the law school in question (and I’ve looked), it appear that one could reasonably take the position that it is a diploma mill.
It will probably not be lost on the judge hearing this case that Mr. Thompson is claiming that these defendants violated his rights to free speech by engaging in speech, and probably highly protected speech (the bloggers at least) at that.
There’s some other stuff with which one might nit-pick, but the biggest problem with the complaint is that Mr. Thompson has attempted to manufacture a conspiracy where none appears to exist, and he has attempted to sue at least some defendants for engaging in protected speech. He probably should have stuck to suing the clerk and the Town of Derby if they did in fact fail to properly process his forms. If what he says is true he might actually have grounds to have his name put on the ballot, though the court might defer to the state court on that issue. On that one issue, he stands a decent chance of winning, though oddly enough he may be in the wrong court, and pursuing the wrong legal theories.
I wouldn’t put too much stock in his claims to 100 million dollars in damages. That’s pure puffery. He could have made the figures billions instead and they would have had as much legal effect.
UPDATE: As Gramma points out, the link doesn’t work. That’s because CT Bob took the post down.