ROBERT B. YOUNG, J.
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
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 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
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 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.
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.
II. Defendants' Motion for Judgment on the Pleadings & Plaintiff's Partial Summary Judgment Motion
a. First Amendment Claim
Plaintiff's First Amendment claim is premised on his alleged attempt to enter and videotape the interior of the Recorder of Deeds office.
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 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.
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.
"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."
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.
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."
The Court deems State Actor Defendants' citation to Whiteland Woods, L.P. v. Township of West Whiteland, particularly instructive.
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."
Despite announcing that, as a general rule, there is no First Amendment guarantee of access to all government information, the Supreme Court has, on occasion, determined that the First Amendment does protect both the public's and the press's right to compel certain types information.
Thus far, the U.S. Supreme Court has applied this test only to situations involving access to certain judicial proceedings.
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 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.
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 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."
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.
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 of gathering legitimate information. Therefore, the Court
b. Intentional/Negligent Infliction of Emotional Distress Claims
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.
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."
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:
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."
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.
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."
Where "no claim of physical harm [is made] in the complaint, the conduct causing emotional distress must . . . be established to be intentional and outrageous."
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, 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:
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
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 as would have changed the outcome of the underlying decision."
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."
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.
For the foregoing reasons the Court: 1)