A federal judge has ruled that the St. Mary's County state's attorney, the former sheriff and six deputies are liable for civil damages for violating the First Amendment rights of a local newspaper publisher when they participated in a plan to purchase newspapers en masse to keep unflattering stories away from the public on Election Day 1998.
The ruling from the U.S. District Court in Baltimore is the latest move in the lawsuit by Kenneth C. Rossignol, publisher and editor of the St. Mary's Today tabloid, over what became known in St. Mary's as the "newspaper caper."
Rossignol published a front-page story on Election Day 1998 headlined "Fritz Guilty of Rape," detailing Republican Richard D. Fritz's 1965 conviction for carnal knowledge of a minor as well as a story about then-Sheriff Richard J. Voorhaar's handling of a sexual harassment complaint.
Fritz and Voorhaar were on the ballot. Fritz was elected to his first term as state's attorney that day, and Voorhaar was reelected sheriff.
Rossignol alleged that St. Mary's County sheriff's deputies, acting with the approval of Fritz and Voorhaar (R), went out in the pre-dawn hours of Nov. 3, 1998, and purchased 1,300 or more copies of the newspaper to keep the articles from being read by voters before they went to the polls.
That, Rossignol said, was a violation of his First Amendment rights. Fritz, Voorhaar and the deputies said they did nothing wrong since they purchased the papers and were not acting as law enforcement officials.
Rossignol's lawsuit alleged that the deputies abused the power of their office by intimidating convenience store clerks into allowing them to buy the newspapers.
The deputies split into two groups, with Capt. Steven M. Doolan, Sgt. Michael R. Merican, Deputy 1st Class Harold Young in one, and Sgt. Edward Willenborg, Sgt. Lyle E. Long, Deputy 1st Class Steven Myers in the other.
Each group videotaped itself through the night buying stacks of newspapers by depositing coins into news boxes.
In January 2003, the Richmond-based U.S. Court of Appeals for the 4th Circuit reversed an earlier District Court ruling against the newspaper. The 4th Circuit decided that Fritz, Voorhaar and the off-duty deputies had acted under color of law. In an order sending the case back to the lower court for trial, the appellate judges called it a "classic example of the kind of suppression of political criticism which the First Amendment was intended to prohibit."
Last week, U.S. District Judge William M. Nickerson, whose options were largely narrowed by the appellate court's ruling, granted summary judgment in favor of Rossignol and the newspaper on claims that the defendants violated provisions of the U.S. and Maryland constitutions.
Nickerson also rejected the defendants' arguments that they were entitled to "qualified immunity" -- which shields government officials from civil liability if they do not overstep their power in the course of their duties.
Also named in the lawsuit were Daniel Alioto, the only deputy on duty on the night of the newspaper purchases, and the Board of County Commissioners.
In his May 5 ruling, Nickerson said the evidence linking Alioto to the incident is disputed and will have to be decided by a jury after a trial. The judge did grant summary judgment in favor of the Board of County Commissioners on the grounds that the main individual defendants are state employees, not county employees.
One of Rossignol's attorneys, Seth Berlin, said that the court expects to convene a jury to begin a trial in December to decide damages.
The suit asks for unspecified compensatory and punitive damages for Rossignol.
"We are seeking to address Mr. Rossignol's economic injuries as well as the injury that flows from actions that prevent a newspaper from getting information about a contested election into the hands of its readers," Berlin said.
Rossignol, who said his 14-year-old weekly newspaper has about 25,000 readers, hailed the decision as a victory.
"The judge's decision is a remarkable one in that it reaffirms and guarantees not only my right to publish without interference from public officials acting in any capacity," Rossignol said, "but also, it protects the right of newspaper readers everywhere from official interference into their right to make their own decisions about what to read."
Baltimore attorney Daniel Karp, who represents all but one of the seven deputies involved in the investigation, and Kevin Karpinski, attorney for Fritz, did not return repeated calls to their offices Monday and Tuesday. Attorney John Breads, who represents Voorhaar, Alioto and the Board of County Commissioners, was unavailable Tuesday.
In 1965, when he was 18, Fritz pleaded guilty to carnal knowledge of a minor in an incident involving a 15-year-old girl. The incident had also been raised in an earlier bid for public office by Fritz, who has maintained that his sexual encounter with the girl was consensual. However, under Maryland law a 15-year-old was not considered legally competent to consent to sex.
Both Fritz and Voorhaar had previously said that the deputies acted alone, but according to a February 2002 ruling in the case by a federal judge, Voorhaar and Fritz had advance knowledge of the plan and contributed money to the effort, though they did not order it.
Alice Neff Lucan, another of Rossignol's attorneys, said she was also pleased with the outcome.
"When a publisher is critical of law enforcement officials, they have at least two recourses. They can sue him for defamation or they can speak out themselves in any number of ways," Lucan said. "What they cannot do is stop the reader from getting the publisher's newspaper."
Voorhaar retired and did not run in the 2002 election, in which Fritz won his second term. Attempts to reach Fritz for comment were unsuccessful.