Claim dropped against town manager

Following a blunt suggestion from a three-judge panel, an attorney for former Raymond Selectman Dana Desjardins quickly discarded his client’s longstanding complaint against Town Manager Don Willard, during oral argument Jan. 6 at a Boston federal appeals court.

The hearing was held in response to an August 2013 complaint in which Desjardins’ attorney, John Campbell, accused Willard and Selectman Michael Reynolds of defamation of character, negligent infliction of emotional distress, intentional infliction of emotional distress and invasion of privacy, among other claims.

The lawsuit that led to the appeal was the result of nearly a year of what Desjardins called “harassment” by Willard and Reynolds, beginning with an incident on Jan. 8, 2012, when a Cumberland County sheriff’s deputy pulled over Desjardins on his way to a selectmen’s meeting for speeding 5 mph above the limit. Desjardins argued that Willard and Reynolds used a December 2011 selectmen’s meeting – and the allegation that he had attended drunk – as a false pretext to ask the sheriff’s deputy to pull him over. Desjardins is seeking undisclosed damages.

Following a June 20, 2014, ruling by U.S. District Court Judge Nancy Torreson to dismiss the complaint “in its entirety,” Campbell appealed the case to the United States 1st Circuit Court of Appeals in Boston. The court is expected to rule on the case in the coming months.

The court has released a recording of the oral arguments.

Midway through the oral argument, Judge Bruce Selya suggested that Campbell would “improve” his chances of having the case sent back to a Maine state court if he dropped Willard from the complaint.

Validating Willard’s claims that he was just doing his job when he contacted law enforcement about Desjardins’ behavior at town meetings, Selya said the notion that Willard had violated Desjardins’ rights was implausible.

“There’s no plausible basis for a finding that Willard engaged in tortious conduct,” Selya said.

Then, Chief Judge Sandra Lynch addressed Campbell even more directly, suggesting that his complaint against Willard was not going to work.

“Let me give you a bit of advice,” she said. “It makes it far easier for us if Willard is no longer in the case to accomplish the end result you seem to want.”

“In that event, we are not pressing the appeal seriously as to Mr. Willard,” Campbell responded.

The oral argument – which was also heard by former U.S. Supreme Court Justice David Souter – represents a long-sought victory for the Raymond town manager, who has been battling the harassment charges for nearly a year and a half.

“I’ve had great faith in the legal process, and it has not let me down,” Willard said. “I am grateful to serve the residents of the town of Raymond. I have always felt throughout my career, which has been over 30 years, that you can never go wrong by doing the right thing. This result confirms the truth of that statement.”

“I did nothing defamatory,” Willard said. “I was just doing my job.”

For Desjardins, the news was less uplifting.

“I didn’t want to drop any cases on anybody,” he said. “My attorney did what he had to do.”

Last fall, Willard and Reynolds’ attorney, Daniel J. Murphy of Bernstein Shur law firm, moved the suit to U.S. District Court and filed two motions on behalf of each client to dismiss the case. Desjardins opposed the motions.

Murphy’s second motion to dismiss cited Maine’s statute barring strategic lawsuits against public participation (SLAPP) – expensive lawsuits designed to bully a party into silence. Campbell has since argued that the state’s anti-SLAPP statute, enacted in 1995, does not apply to federal law claims, and that the case should not be dismissed.

Murphy’s successful use of Maine’s anti-SLAPP statute was a core focus of the oral argument, with the judges indicating that they would consider sending the case to the Maine Law Court.

“The purpose of this appeal, apparently, is to get the federal court to decide that question for the Maine Supreme Court as to what the state constitution means and there is a sort of visceral response on the part of federal judges that that isn’t our job,” Selya said. “So why should we be involved in resolution of a very difficult question arising under the Maine constitution?”

Murphy said it was unclear whether the court would uphold the District Court’s decision, remand it to the Maine Law Court, or send it back to Cumberland County Superior Court.

“It’s really up in the air at this moment,” he said. “Sometimes when there’s an issue of state law, they will send a question to the highest court in the state to answer the legal question and that will allow them to make their decision.”

During the oral argument, Selya also said that Reynolds had sent emails about Desjardins that were “arguably defamatory.”

Reynolds said he was celebrating the decision to drop the complaint against Willard while eagerly awaiting the federal appeals court’s decision.