Delaware Agency Sues Homeowners Because They Sued Allegedly Disabled Neighbors Over Nonconforming Fence

From Tuesday’s decision by Judge Kathleen Miller (Del. Super. Ct.) in Delaware Human & Civil Rts. Comm’n v. Welch: which seems correct to me:

Shortly after Elaine and James Cahill … purchased a home in the Wilmington neighborhood of Boulder Brook Development …, they erected a six-foot stockade fence around the backyard. The Development is subject to a deed restriction which prohibits the erection of any fence without prior approval of 1/3 of the residents in the Development, including the residents of each contiguous or adjacent lot. If approval is obtained, the fence must be “open face” and no more than four feet.

The Cahills did not seek approval before erecting the fence. The adjacent residents, Elmer and Wilma Yu … and Christine Welch …, objected to the fence. When the Cahills refused to remove it, the Yus and Welch filed a petition in the Court of Chancery seeking a declaration that the fence violated the deed restriction and a mandatory injunction compelling its removal.

After the action proceeded for over six months, the Cahills asserted that the fence was a reasonable accommodation for their ongoing health issues, as provided in the Delaware Fair Housing Act …. Thereafter, the Cahills moved to stay that action to allow them time to pursue a claim with the Delaware Human and Civil Rights Commission … for violation of the Act. The stay was denied.

After the Senior Magistrate issued a Final Report ruling in favor of the petitioners and ordering removal of the fence, the Commission filed this action. The Commission claims that the Court of Chancery petitioners (defendants here) violated the Fair Housing Act by continuing to pursue that action after they learned of the Cahills’ need for a reasonable accommodation. {The complaint asserts that Mrs. Cahill is disabled, … [and] utilizes an emotional support animal [a Yorkshire Terrier]. The complaint alleges that despite knowing of Mrs. Cahill’s disabilities and need for a reasonable accommodation [apparently referring to fencing that would keep the terrier from escaping -EV], the Chancery Petitioners engaged in discriminatory conduct by pursuing the Chancery Action, which resulted in an order mandating removal of the Fence.} The Court of Chancery action is now stayed pending resolution of this case.

The Commission, on behalf of Elaine Cahill, seeks an injunction, a finding that the fence is a reasonable accommodation which supersedes the deed restriction, and an award of damages….

The Noerr-Pennington doctrine, which flows from the First Amendment, protects parties against liability for seeking redress from the government, including the courts. The defendants exercised their right to petition the government and sought relief in the Court of Chancery. No exception to the doctrine applies, and therefore, this action is barred by the Noerr-Pennington doctrine….

The First Amendment guarantees the right “‘to petition the Government for a redress of grievances’ and is ‘the most precious of the liberties safeguarded by the Bill of Rights.’” The Noerr-Pennington doctrine ensures that one may seek government redress without liability. The doctrine was initially pronounced in antitrust actions, Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. and United Mine Workers v. Pennington, which found that the First Amendment allows competitors to influence government action without liability, regardless of their motives. The doctrine has since been extended to allow “‘use … [of] courts” and “‘extends to all departments of the Government.’” The doctrine has also been applied to areas of the law beyond antitrust, including civil rights and fair housing claims.

To balance the important right of seeking redress from the courts and protection against “‘illegal and reprehensible practice[s] which may corrupt the … judicial process[es],’” the Supreme Court recognized the “sham” litigation exception to the Noerr-Pennington doctrine. Courts will apply a two-prong test to determine if the exception applies: “First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits.” Next, the litigant’s subjective motivation must “conceal[ ] ‘an attempt to interfere directly with business relationships of a competitor … through the use [of] the governmental process—as opposed to the outcome of the process ….” …

The Chancery Petitioners sought government redress through the courts by pursuing the Chancery Action. Thus, unless an exception applies, the Noerr-Pennington doctrine protects the Chancery Petitioners from liability. The Commission does not challenge the Chancery Action as a sham litigation; nor could it. The Senior Magistrate found that the Deed Restriction is enforceable, and the violating Fence must be removed.

The Commission argues, however, that the Noerr-Pennington doctrine does not apply because the Chancery Action “did not involve the government [as a litigant] or a petition seeking governmental action,” rather, it is an action between two private citizens…. [But the precedents] do not stand for the proposition that the government must be a litigant for the Noerr-Pennington doctrine to apply. The doctrine may be triggered by private citizens seeking redress from a court (i.e., the government). The Chancery Petitioners did just that in seeking relief from the Court of Chancery.

Finally, while the Commission does not argue otherwise, the Court finds that the Noerr-Pennington doctrine applies to alleged violations of the Fair Housing Act. As recognized by Chancellor McCormick, the right of citizens to petition the government for redress of grievances

is ‘essential to freedom,’ liberty and self-government. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as the whole realm of ideas and human affairs.

Civil rights statutes, such as the Fair Housing Act, provide important protections. However, those rights do not eclipse the constitutional protections of the right to petition the government. The Court finds persuasive the authority from the Third Circuit, and other courts, that have applied the doctrine to civil rights claims.

Accordingly, the defendantsChancery Petitioners’ efforts to enforce the Deed Restriction are immunized under the Noerr-Pennington doctrine….

Brian Demott (McCollom D’Emilio Smith Uebler LLC) represents defendants.

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