2004 | Cited 0 times | D. Maine | July 6, 2004


In this lawsuit removed from state court in 2001, DorothyLaFortune originally sought only injunctive relief. She claimedin her Third Amended Complaint that the City of Biddeford and itsthen mayor violated her constitutional rights by prohibitingrebroadcast of her Maine Forum program, What Price Justice, onBiddeford's public access cable television channel and by banningher for at least one year from appearing on that channel. Sherequested injunctive relief against any prior restraint of herFirst Amendment rights, against any forfeiture of her rightsunder an Access User's Agreement the City used, against anyfailure to implement the Cable Television Committee's ("CTVC")order that her program What Price Justice be rebroadcast threeadditional times, and against enforcement of two particular CityCouncil Orders. She also sought declaratory relief as to one ofthe orders. After summary judgment motions, the Magistrate Judgerecommended a ruling in LaFortune's favor on one issue (requiringa written release from every non-public official mentioned on theair constitutes an unconstitutional prior restraint and violates47 U.S.C. § 544(f)(1)); resolution on a stipulated record of thestate 80B appeal process for one City Council Order; and a rulingin the City's favor on all other issues. However, I dismissed theComplaint as moot when Biddeford thereafter shut down entirelyits public access channel for several months with no suggestionthat it soon would reactivate it. The First Circuit Court ofAppeals later reversed my mootness determination, stating thatBiddeford had not met its heavy burden to show mootness. Thecourt of appeals remanded the case for further proceedings,leaving open the possibility of reconsidering mootness on a moredeveloped record. I held a conference on the record with Ms.LaFortune and the defendants' lawyers on July 2, 2004. Beforethat conference the parties made filings as directed by aProcedural Order I entered.

At this time, based upon my de novo review of the MagistrateJudge's Recommended Decision of April 30, 2002, I affirm hisrecommendation in all respects. As a result, (i) the defendants'motion for summary judgment is GRANTED as to Counts III and IVof the Third Amended Complaint and as to so much of Count I asrefers to events other than the defendants' interpretation of theAccess User's Agreement, and otherwise is DENIED; (ii) thedefendants' motion to remand Count II is DENIED; and (iii) the plaintiff's motionfor summary judgment is GRANTED as to the claim in Count I thatany requirement that the plaintiff obtain written releases fromall private individuals who may be mentioned during thebroadcasts of her program on the Biddeford public-access cabletelevision channel is unconstitutional and otherwise DENIED.

The defendants would have preferred that I declare the entirelawsuit moot once again.1 In light of the court ofappeals' decision and in the interests of judicial efficiency,however, I consider it more prudent at this point simply to ruleon the merits.

At the conference on July 2, 2004, Ms. LaFortune requestedpermission to amend her complaint. She stated repeatedly that theinjunctive relief she sought initially is no longer important toher. What she wants now is damages, or restitution as she callsit, and a return to public access. Apparently the City has seizedand sold her home in Biddeford by a tax lien procedure. Ms.LaFortune has challenged that action in various state courtlawsuits, Ly v. LaFortune, 2003 ME 119, 832 A.2d 757 (2003),LaFortune v. City of Biddeford, Docket No. AP-02-36 (Me. Super.Ct.),2 so far unsuccessfully. In this court she wouldlike to advance the claim that the City's actions were designed toprevent her from exercising her First Amendment rights and to gether out of Biddeford so that she no longer can have access as aresident to whatever public access channel might be available.She therefore wants to seek damages for the seizure and sale ofher home and an order that the City treat her as a resident. Idecline to permit the amendment. Discovery has already closed,the case was fully briefed on summary judgment on the originalinjunction issue, a decision was rendered in this court (firstthe Magistrate Judge's recommended decision, then my declarationof mootness) on that issue, and the court of appeals has reviewedit in that context. What Ms. LaFortune wishes to pursue now is awhole new lawsuit, based on a new set of events. It can only makefor confusion of the record and any further proceedings in thiscourt and the court of appeals to treat this new claim as only anamendment of the original injunctive relief lawsuit.3 Themotion to amend is DENIED.

I express no view on the merits of this new claim Ms LaFortunewants to make against the City. It is apparent that she is deeplyaggrieved by what Biddeford has done, and believes that Biddefordhas singled her out for this use of the tax lien procedure. (Shealso announced several times that she would like to resolve thematter without a lawsuit, but it may be too late for that.)

I am concerned about the remaining claim in this lawsuit, thestate law 80B appeal of the City Council Order 2001.80. It seemsfrom what was said at the conference that neither party caresvery much about this claim. Nevertheless, the original CityCouncil Order 2001.80 prohibiting rebroadcast of What PriceJustice is still in effect. As a result, right now technicallyno one can rebroadcast the program (if anyone is so motivated)and the original CTVC's decision ordering three more broadcasts(the decision that the City Council's Order overruled) has neverbeen carried out. The 80B appeal of Order 2001.80 is thereforenot moot. Perhaps in light of Ms. LaFortune's repeated assurancesthat the injunction is no longer the issue, she will choose todismiss the 80B appeal. Or perhaps the City Council will rescindthe Order in question. But until either of those events occurs,the Rule 80B appeal will proceed. The Magistrate Judge shallenter a procedural order accordingly.


1. Although I am told that the situation has changed since myearlier ruling, and that the City has once again resumed publicaccess programming, the City's lawyers also tell me that it nolonger is using the procedures that Ms. LaFortune found offensive(requiring written releases from non-public figures prior tobroadcast) and that any prohibition on her use of public accesshas expired or will not be enforced.

2. The City argues that these other lawsuits collaterallyestop Ms. LaFortune from asserting her new claim for damages. Iam skeptical that those decisions have collateral estoppeleffect. Ms. LaFortune did not advance her constitutional claimsin those lawsuits. One was a Forcible Entry and Detainer lawsuitwith the property's new purchaser. It is difficult to see how Ms.LaFortune could have raised her First Amendment claim against theCity there. The other was an attack on the City's tax lienprocedures and, in particular, retention of surplus funds theCity recognized on the sale. At any rate, it is not necessary todecide the collateral estoppel issue now in light of my denial ofthe motion to amend.

3. In addition to damages, Ms. LaFortune says she wants to useBiddeford's public access channel and that she believes Biddefordwill deny her access on the basis that she is not a resident. Shechallenges that potential decision, claiming that she still is aresident of Biddeford, apparently claiming intent to return tothe seized and sold property. In that respect, she claims to havea basis for injunctive relief. But this residency dispute ispremature. At this point I do not know where Ms. LaFortune lives,what Biddeford's rules are for determining residence, or whetherthe City will apply them fairly to Ms. LaFortune. There are alsoapparently other ways for her to have access even if she is nota resident.

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