kingcast v. ayotte rule 27 appeal

7/31/2019 KingCast v. Ayotte Rule 27 Appeal

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IN THE UNITED STATES COURT OF APPEALSFIRST CIRCUIT

BOSTON MASSACHUSETTS

CHRISTOPHER KING, J.D. ) CASE NO.12-1891

a/k/a KINGCAST.NET, ) LOWER CASE NO. 2010-CV-501Plaintiff-Appellant,

v. )

FRIENDS OF KELLY AYOTTE, et al., ) ORAL ARGUMENT REQUESTEDDefendants-Appellees.

PLAINTIFFS MEMORANDUM IN SUPPORT FOR LEAVE TO CONDUCT DISCOVERYTARGETED TO ELUCIDATE CRUCIAL ISSUES IGNORED BY THE LOWER COURT

Now Comes Plaintiff-Appellant per FRCP 27(b) to note, inter alia, that the

presence of uniformed Nashua Police personnel who were likely paid by the public, is

a strong indicia that the events held in Nashua, New Hampshire are more public in

nature than private in nature when it comes to the rights, responsibilities and

privileges of the Fourth Estate. Further in-depth analysis of the salient issues,

demonstrating why discovery is warranted, follows throughout this Memorandum.

This case is at the core of a bourgeoning issue in America: The question of what

role the alternative press is to have going forward, particularly those of us with real-

World experience and diligence. Having chaired a New England News and Press

Association panel on this very issue, Plaintiff-Appellant asserts that he, and others like

him, are the original pamphleteers in the modern era. The American and World public

shall not be unreasonably denied any of our input when it comes to attending and

reporting on publicly-advertised political events held on properties subject to

substantial licensing and permitting -- particularly in the presence of area police

working on taxpayer-subsidized salaries. See Moose Lodge No. 107 v. Irvis, 407 U.S.

163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). Oral argument on this matter is hereby

requested.

Respectfully submitted,

/s/Christopher King, J.D.__________________________________KingCast.netBy and through Christopher King, J.D.617.543.8085m


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INTRODUCTION

Now Comes Plaintiff-Appellant, having tendered full funds to prosecute his

Appeal before this Court, to note that some measure of discovery is fully warranted in

this matter, for the reasons stated herein. The Court must be aware that the issues of

race and First Amendment violations (i.e. unlawful chilling) co-exist but are yet

distinct and separate and a finding for either one is not a prerequisite to the other 1

At the outset it is relevant to note that Appellant has never received the due

consideration or respect from the Lower Court to which he was entitled: Magistrate

McCafferty was forced to recuse herself after Plaintiff-Appellant discovered that she

worked at McLane, Graf -- the same law firm as Defendant Ayotte and under direct

supervision of Plaintiffs opposing counsel Jennifer Parent and Jack Middleton. She

issued a Memorandum negative in every material aspect and yet this memorandum was

never set aside even though the conflict clearly existed prior to the Court hearing.

Every lawyer and judge in the World knows that Her Honor should have mentioned the

relationship: It is Judicial Ethics 101.

Further Jennifer Parent as NH Bar President and Senior Litigation counsel

should have mentioned the relationship. And when confronted with the matter Judge

Paul Barbadoro should have done more than just insouciantly state The Motion for

Recusal is completely without merit, as he did.2

This Appeal comes after the Defendants issued public invitations and specific

RSVP invitations to the press to publicly-advertised events that were accepted by

Plaintiff-Appellant, only to alternately allow him in and kick him out, using a variety

of purported nondiscriminatory rationales.3 The primary events included:

1 A money order in the amount of $455 was dispatched via overnight U.S. Mail on 16 October,2012.2 Her Honor only recused herself after vigorous video campaigns exposed the relationship. See

http://www.youtube.com/watch?v=2vT7_uhnElQ Judge McCafferty Backdoor Recusal Taints NH

Bar Ass'n & Courts in Free Press Racial case. Plaintiff told the Court We both graduated from Case

Western Reserve School of Law and they dont graduate any dummies.3Plaintiff-Appellant is quite certain that this Court is aware of the general McDonnell-Douglasframework that provides that a Jury is entitled to hear the case on the merits if there are anumber of purported, legitimate nondiscriminatory rationales that do not jibe. Plaintiff didexpose some of these, but of course by truncating discovery the Court put Plaintiff in animpossible position in order to make this case go away. But this case is not going away, thiscase is going to SCOTUS and the American and World public are going to know exactly what theissues are that the lower court buried.


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1. A Manchester, NH Kelly Ayotte Facebook rally, advertised as open to thepublic. Plaintiff-Appellant appeared as the only black face in the crowd and

was called a bigot and Ayotte Veterans Chair and former U.S. Marshal

Stephen Monier called the police on Plaintiff as he stood on the sidewalk

with his money in hand.

2. A Nashua, NH publicly-advertised event The Joe Arpaio Steak-Out held atthe Crowne Plaza, a locus consonant with political activity throughout the

years.

3. A Nashua, NH RSVP event at the VFW hall, where this country celebratesmen and women who fight to preserve Americas freedoms. The Nashua

Telegraphs Patrick Meighan wrote a story about the fact that Plaintiff-

Appellant had indeed RSVPd and wondering what would happen. Senator

John McCain the same Senator who had recently expelled a sole black

reporter without explanation at one of his rallies was sharing the floor

with Defendant Ayotte that day. Defendant Ayotte ended up ignoring the

very public RSVP given by Plaintiff-Appellant.

http://www.nashuatelegraph.com/news/968730-196/senators-past-

dispute-with-former-nashua-blogger.html Curiously, the reporter noted this

very same history as being a likely influence on the case at bar.

4. Note that Appellant has clearance to photograph the President of theUnited States, who appears in the background two years ago:


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The Parties are all aware Plaintiff provided video of several discriminatory acts on

the part of Nashua PD, including but not limited to:

a) admonishment not to strike anyone else by Defendant Hargreaves when inpoint of fact he ignored the fact that a white woman had struckPlaintiff=Appellants camera with a GOP flier; Appellant had NEVER struckanyone he had just completed a professional interview with guest of honorJoe Arpaio (Crowne Plaza);

b) threatening to arrest Plaintiff long after he had left the Leased Premises of theGOP at the Crowne Plaza, which unnecessarily chills First Amendment exerciseCrowne Plaza event).

c) admonishment to stay on the sidewalk when Plaintiff was on the sidewalkalready so that Defendant Fisher could continued to talk over Plaintiff andtrammel his First Amendment rights to ask the questions of the candidate hewanted to ask, free from unreasonable police intervention (VFW RSVP event).


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d) admonishment by Defendant Fisher to stay away from a backing car,

interrupting Plaintiffs attempted questioning of Defendant Ayotte on severalmatters, including but not limited to her policy on allowing for UnconstitutionalDNA reporting for NH children; (VFW RSVP event)

Plaintiffs request must be granted unless there is evidence of some sort of

fishing expedition aiming to obtain information to initiate an entirely different

complaint against someone not a party to the original action. See Myles v. Women &

Infants Hosp., 504 A.2d 452 (Rhode Island 1986).

The trial justice pointed out that plaintiff was seeking to invoke Rule 27(b) fora purpose for which it was not designed. He stated that the purpose of the ruleis to preserve and perpetuate testimony pending appeal for future use and thatit was not designed to permit a plaintiff to obtain new evidence that wouldthen serve as a basis for a second malpractice suit. Furthermore, the trialjustice found that denial of the motion would not defeat the interests ofjustice because the lack of a finding in the pathology report concerningrecanalization was a speculative and an insufficient reason to warrant anextension of time for plaintiff to depose the pathologist. We agree.

But in this case the parties are all the same and the information is in the

publics best interests to ensure that the free and critical press is allowed to attend

publicly-advertised events at places of public accommodation pursuant to NAACP v.

Thompson, 648 F.Supp. 195 D.Md.,(1986), Pruneyard v. Robbins, 447 U.S. 74 (1980).

Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).


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RACIAL AND FIRST AMENDMENT CONCERNS:A PROMINENT AND RELEVANT HISTORY IGNORED BY THE TRIAL COURT

As noted in the Report and Recommendations by Magistrate Landya B.

McCafferty there was an acrimonious past between Defendant Ayotte and Plaintiff-

Appellant. This acrimonious past however is and was steeped in racial and First

Amendment under and overtones because Defendant Ayotte, as NH Attorney General,

supported frivolous but hurtful civil and criminal litigation against Plaintiff-Appellant

as NAACP Legal Chair. Appellant had simply issued a Demand Letter to a subsequently-

fired Police Chief (Jaffreys Martin Dunn) after he had read police reports and

interviewed a black New Hampshire man who faced three (3) drawn police guns held

by white officers and a visual body cavity search for LOITERING. That activity is

squarely within the advisory ambit of an NAACP Legal Chair yet Ayotte continued on

with attempted prosecution on civil and criminal fronts even after she was on Actual

Notice via Affidavits that Appellant had not misrepresented anyone or anything in

terms of whether he was a licensed attorney in New Hampshire or anywhere else for

that matter.

But the kicker is, that even though the mans underlying case was dismissed

sua sponte from the bench, Defendant Ayotte never did anything to investigate the

racial context of this situation, a fact that Appellant put up front and center on his

online journals.4

While all charges of attempted felony extortion and unauthorized practice of

law against Plaintiff-Appellant were dismissed, withdrawn or nol-prossed (after

Plaintiff sat patiently through voir dire) the fact remains that this sort of

background between the parties could allow a jury to infer that there is indeed

racial animosity, and the events culminated just a handful of years (4) prior to the

onset of the events that spawned this litigation so they are hardly remote in time.

4Plaintiff-Appellant has a formal background in media and news reporting learned in collegeand on the job as Editor of The Ohio Call & Post (a statewide Ohio newspaper) and as areporter for the Indianapolis Star, in addition to dozens of freelance jobs over the years priorto and after law school.


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In this case the information sought can help the Court determine the true

nature of the event in the fact-driven and historical context to determine whether

the limitations on media coverage were unlawful in light of the case law provided

by Appellant and not the irrelevant case law cited by the Court or Opposing

Counsel.

RULE 27 ANALYSIS AS APPLIED TO THE CASE AT BAR

(1) In General. The court where a judgment has been rendered may, if an appeal hasbeen taken or may still be taken, permit a party to depose witnesses to perpetuatetheir testimony for use in the event of further proceedings in that court.

It is crucial to remember that this case was dismissed on a Motion to Dismiss

level, without benefit of any discovery whatsoever. What if Plaintiffs sought discovery

resulted in a finding that the GOP alternative press policy was to include any and allalternative press?

Then we would have a deviation from that policy that, when coupled with the

prior history of Defendant Ayottes prior failed attempts to restrict Plaintiff Kings

First Amendment Rights, could prove probative of racial animus.5

In prior pleading that was summarily ignored, Plaintiff-Appellant noted:

We dont even know what arrangements the Nashua PD had while they wereat this private event. They were wearing uniforms so taxpayer dollars are likelybeing expended for the private Nashua events. These details are typically paid

for with private funds for truly private events. See generally Kim v. LowellLodge # 87 B.P.O.E., 17 Mass. L. Rep. 429 (Middlesex 2004).This is yet another crucial distinction that the lower court failed to grasp but

which is a distinction of paramount importance: If Nashua PD were present and in

uniform then they were likely being paid for by public funds. That, in conjunction with

the public nature of the invite, the public nature of the subject matter (i.e. a public

Federal election campaign) and the public policy directive to allow for coverage of

publicly-advertised political events all militates in favor of a finding that this was

5 Defendants were quick to argue that Defendant Ayotte was entitled to ProsecutorialDiscretion and Immunity with respect to her attempts to imprison Plaintiff as NAACP LegalChair. However that analysis is perfunctory and limited: As a matter of law, a Jury is stillentitled to conclude in this Civil Case that her actions taken against a leader of the NationsOldest Civil Rights organization demonstrate racial animus in a First Amendment context. TheLower Court attempted to whitewash all of this away, but this Court can be certain thatAppellees would have been the first ones to raise the issues had Defendant Ayotte prevailed.i.e. this is yet another specious First Amendment argument by Mr. King, who tried and lost onprior occasion..


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indeed a public, rather than private event. This is precisely why Plaintiff-Appellant

offered a reasonable solution that campaign events held at a private residence, or

true GOP strategy sessions could pick and choose reporters. These events were not

held at private residences nor were they GOP strategy sessions.

The Lower Court clearly committed reversible error in preventing discovery to

ensue in this case. Further, the Courts cited case of Cape Cod Nursing Home Council

v. Rambling Rose Rest Home, 667 F.2d 243 (1st Cir 1981) does not involve a Reporters

Right to observe and report, but instead involved an area not consonant with mass

general public use for political rallies, such as the Crowne Plaza. While Plaintiff is

quite certain that the measure of permitting and licensing of a nursing home is quite

substantial, it fails on the public policy prong of this analysis and cannot be used for

this particularized evaluation. In sum, The entrance into a nursing or rest home is

hardly a "traditional public channel of communication."(Cape Cod at 240).

But a political rally, however, open to the public and press by mass

invitation, is precisely such a venue.

It is crucial at this point to again go through the careful analysis offered by

Plaintiff on prior occasion before this Court, but which was not addressed in the

Decision:

As stated above, NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986)(issued

AFTER Cape Cod, supra, is a case factually similar to the instant action. In Thompson,

the Court held that blacks may attend -- but not actively participate in -- the KKK rally

at a private home.

The Court attempted to downplay the relevance and significance of Thompson

at Fn. 7 by stating:

that case involved a county-issued permit system used to exclude certainmembers of the public based on race. The active state involvement critical inThompson simply does not exist here.

That is not accurate because both cases involved the issuance of facially-

neutral permitting for host venues that was then misused by host venues to

discriminate. It is not as if the State itself was practicing the discrimination, as the

lower court erroneously implied: In this case we have places of public accommodation

that could not operate or house the events in question without substantial licensing

and permitting where the licensee is practicing unlawful discrimination.


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Once again, note that Thompson even reached into the private residence realm

where Plaintiff in the case at bar is taking a substantially more moderate approach

contemplated by Pruneyard, Thompson and the other cases cited below, including but

not limited to Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d

627 (1972).

Courts must reasonably consider persuasive law from another Federal

Jurisdiction in order to compare apples-to-apples and when it does, the yield supports

Plaintiff: As NAACP v. Thompson, 648 F.Supp. 195 D.Md.,(1986) shows Plaintiff has a

certifiable constitutional question, the Court can take Judicial Notice that the VFW

and Crowne Plaza have to have State and Local permits (liquor, lodging, food &

beverage) to operate so there has to be a legal analysis conducted to see whether the

amount of permitting and licensing equates to the type noted in Thompson, as

Thompson used the Pruneyardrationale the same exact way that Plaintiff used it

in the TRO hearing, much to the chagrin of Attorney Middleton:It bears repeated emphasis that we do not have under consideration theproperty or privacy rights of an individual homeowner or the proprietor of amodest retail establishment. A handful of additional orderly persons solicitingsignatures and distributing handbills in connection therewith, under reasonableregulations adopted by defendant to assure that these activities do notinterfere with normal business operations ... would not markedly dilutedefendant's property rights. Pruneyardat 78, 100 S.Ct. at 2039 (citationsomitted).

From Pruneyardat 81, 100 S.Ct. at 2040 (citations omitted)......It may well be that Mr. Kelly, by opening his private farm property to thepublic for a Klan rally did not bestow upon attendees of that rally any right tospeak during that rally or to require the Klan to call upon anyone to speak atthe rally other than as the Klan desired. But, herein, plaintiffs do not seek theopportunity to speak at such a rally; rather, plaintiffs complain herein of beingexcluded entirely from attending such Klan rallies.6

............But, by choice of its owner, the property was, on the occasion ofeach Klan rally, made open to the public. Having made that choice,the private property owner cannot complain that he has been deprived of his

privacy, or of his freedom to use his own private property as he desires, if he isrequired not to discriminate among the members of the public by excluding allpersons belonging to a particular race or to a particular religious group.

6 KingCast note: That is precisely the distinction Plaintiff is making between Kay v. Bruno, 821f.2d 31 (1987), and his desire to merely be present and to gather news.


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A private property owner can surely invite whomever he selects to attenda private gathering on his property. But when he offers his private property tothe public, he has placed himself in a position which enables the government,if it so desires, to impose certain requirements upon him.7

If, as in Pruneyardand in Hudgens, a state or federal statute can require ashopping center owner to permit certain solicitation or picketing within theshopping center, then there would appear no federal constitutional barrier toFrederick County requiring the Klan to hold an open-to-all, non-racially, non-religiously discriminating, public rally on private property before issuing apermit.

KingCast submits that such an analysis is entirely consistent with principles of

Heart of Atlanta, supra. Lastly, Justice Rehnquist added in Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972),

Lastly, as to Defendants specious claim that they are immune from liabilitybecause they are not State Actors, Plaintiff states the following. First, as inthe words of U.S. Supreme Court Justices William Rehnquist -- in Moose LodgeNo. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972),

Our cases make clear that the impetus for the forbidden discrimination neednot originate with the State if it is state action that enforces privatelyoriginated discrimination. Shelley v. Kraemer, supra.

Put simply, the question of whether state action is implicated is a factual

matter that cannot be summarily determined on a Motion to Dismiss and withoutdiscovery. Plaintiff has sufficiently pled that state action was involved in order to

survive the hurdle of F.R.C.P. 12(b)(6) under Iqbal and Twobly, and Moose Lodge,

especially given the fact that the taxpayers probably footed the bill for police

coverage.

7 KingCast note: Plaintiffs offer of compromise made in Open Court did not include the Ayottehome. It was, and is, a valid attempt to balance private property rights against matters ofpublic interest as noted in Thompson, supra.


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SUMMATION AND EXPECTED AREAS OF TESTIMONY AND DOCUMENT PRODUCTION

Plaintiff-Appellant served Discovery Requests that were unlawfully ignored and notenforced by the trial court. The Plaintiff now seeks to conduct discovery consistentwith the following concerns relating only to named Defendants:

Nashua Police Chief Conley:The number of meetings or any communication held with GOP Nashua and GOP NewHampshire officials in which access to media was discussed and his recollections ofthese meetings. Further, the issue of payment, Plaintiff will seek to have DefendantConley bring any and all payment records for the Crowne Plaza and VFW Hall events todetermine whether private parties or the taxpayers paid for the coverage of theseevents.

Nashua Police Sergeant HargreavesThe number of meetings or any communication held with GOP Nashua and GOP NewHampshire officials in which access to media was discussed and his recollections ofthese meetings. Also why he stated to Plaintiff just dont strike anyone else, and

also why he threatened Plaintiff with arrest AFTER he had left the leased premises andclearly told them This is no longer the event, this is a place of publicaccommodation.

Nashua Police Officer John FischerWhy was he singling Plaintiff out for being too close to a backing car when other whitepeople were clearly closer to the car. Who at the campaign told him that Plaintiff-Appellant was not allowed in and when?

Dennis Hogan:Nashua Republican City Committee Chair. His knowledge of the GOP policy onjournalist access, vis a vis why he decided to grant entrance to Plaintiff-Appellant at

the Crowne Plaza, and whether he received notice to expel Plaintiff and if so fromwhom and why? Did he receive any directives from Ryan Williams or Kelly Ayotte orNashua PD. Why was Appellants RSVP denied at Crown Plaza after he secured it.

Ryan Williams:GOP Communications chair. His knowledge of the GOP policy on journalist access, vis avis why he decided to expel Plaintiff. Everything he remembers about our conversationand why he asked me to leave the Joe Arpaio Steak Out at Crowne Plaza. Why wasmy RSVP denied at VFW Lodge after I secured it.

Kelly Ayotte:

When and why did you decide that Plaintiff-Appellant was not entitled to attend yourcampaign events. Did John McCain influence your decision not to allow Plaintiff-Appellant to attend the RSVP VFW event to which Plaintiff reserved his presence?Were you aware that John McCain had recently ejected Stephen Price, the only blackreporter at one of his events, without explanation? What is the GOP policy onjournalist access vis a vis why you decided to expel Appellant. State why you neverinvestigated any possible racism in the Willie Toney matter in Jaffrey.


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CERTIFICATE OF SERVICE

I the undersigned, solemnly swear that a true copy of this Motion & Memorandum wasElectronically delivered on 17 October, 2012 to:

Jennifer Parent and Jack Middleton, Esq.City Hall Plaza900 Elm Street

Manchester, NH 03101

Gordon MacDonald, Esq.Nixon Peabody LLP

900 Elm StreetManchester, NH 03101

Brian Cullen, Esq.10 East Pearl Street

Nashua, NH 03060

/s/Christopher King, J.D.__________________________________

KingCast.netBy and through Christopher King, J.D.

617.543.8085m

kingcast v. ayotte rule 27 appeal

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