BRENTWOOD — Superior Court Judge Andrew Schulman dismissed a defamation lawsuit brought against Portsmouth City Councilor Chris Dwyer by Toyota of Portsmouth owner James Boyle.
Boyle filed suit against Dwyer in November, claiming she defamed him during her recent re-election campaign, and specifically when she responded to questions published on PortsmouthNH.com about Boyle.
In a question regarding whether the city should have settled with Boyle, Dwyer answered: “Certainly not. Mr. Boyle purchased a building on wetlands, which had been sold to him by the N.H. Department of Education; the building was sold because it was sinking. The wetland and the sewer line are clearly marked on the deed to the property. Ever since then, he has been trying to get the taxpayers of the city of Portsmouth to pay for his apparent mistake through filing various lawsuits.”
Boyle’s attorney, John Kuzinevich, contends the responses Dwyer made were “false, defamatory and intended to cast Mr. Boyle and his business in a negative light,” Kuzinevich stated in the suit.
But Schulman in a ruling issued this week granted Dwyer’s motion to dismiss Boyle's lawsuit. He stated in his 18-page ruling that “regardless of the merits of the underlying property dispute” between the city and Boyle, the defamation claims made by the car dealership owner “are groundless.”
“The statements alleged in the complaint are a combination of clearly constitutionally protected political speech, non-actionable and constitutionally protected opinion and facts (that) are non-defamatory on their face,” Schulman states in the decision.
In the lawsuit, Kuzinevich also said Dwyer’s statements “were made to harm Mr. Boyle and his business” and because Dwyer made them, she has libeled and slandered both Boyle and his business.
Kuzinevich stated Minato Auto LLC, Boyle’s company, has “advantageous business relationships with existing customers” and could add customers throughout the Portsmouth area.
“Mrs. Dwyer either intentionally or negligently interfered with these relationships by making false and disparaging statements of fact, which would dissuade customers and potential customers of Minato from buying its goods and using its services,” Kuzinevich stated in the lawsuit. “Minato has been damaged by Mrs. Dwyer on account of such interference.”
But again Schulman ruled against that, stating “there is no cause of action for negligent interference with contractual relations. ... More important, the alleged statements are constitutionally protected speech."
The judge concluded Boyle’s suit “strikes at the heart of the political and democratic process.”
“Suing a political candidate for constitutionally protected political speech is unacceptable,” Schulman wrote. “This is especially so in this case because the candidate was voicing her opposition to paying” Boyle $10 million in taxpayer funds.
The city’s insurance company, Primex, paid for Dwyer’s attorney fees to defend her against the lawsuit Boyle filed, because Dwyer claimed – and City Manager John Bohenko agreed – she was acting in her role as a city councilor when she answered the questionnaire.
Schulman disagreed with “Dwyer’s claims of statutory and official immunity,” he said in his ruling. “She was not acting in her capacity as a city councilor, but rather in her capacity as a private citizen running for reelection to the City Council. Her statements were made in response to a candidate survey.”
Reached Thursday, Dwyer said she had a chance to “glance through” the decision but hadn’t read it completely yet. “It seems about what I expected and I’m pleased with that,” Dwyer said.
Asked about Schulman’s ruling that she wasn’t acting as a city councilor, Dwyer said, “I think it’s a complicated thing. I would say what I was describing were votes I had taken as a councilor, and describing my actions as a councilor and I was a sitting councilor."
Boyle said he plans to file a motion for the judge to reconsider his decision. “The judge got numerous things confused. … I don’t see how he can say no matter how ill-motivated and false, all political speech is protected,” he said.
His biggest take away from the ruling is that Schulman determined Dwyer was “acting as a private citizen,” he said. “I think that again, Bohenko should immediately require her to pay the legal bills,” Boyle said.
He also pledged to take the case to the state Supreme Court if necessary. “This group in Portsmouth thinks they can say anything about anybody and there’s no consequences,” Boyle said Thursday. “I’ve got news for them, there are consequences and their consequences are coming.”
Bohenko called the judge’s ruling “a positive decision for” Dwyer. Asked about Schulman’s ruling on Dwyer acting as a private citizen, Bohenko said, “That’s why until a judge makes a determination you can only go by the best advice you get from staff.”
Bohenko said he will not decide whether to ask Dwyer to reimburse the city’s legal costs until he talks to City Attorney Robert Sullivan.