Man Loses Racketeering Claim Over Election Ads

(CN) - The 10th Circuit stalled a Kansas man's campaign against a county judge, ruling that a local newspaper, a county attorney and others did not conspire to keep his paid advertisements critical of the judge out of the paper.

In 2006 George M. Hall paid the Coffey County Republican to run two advertisements urging voters to unseat Judge Phillip M. Fromme in an upcoming election, apparently because he did not like "the manner in which Judge Fromme presided over litigation involving Mr. Hall's mother."

The paper ran only one of the ads, and then published an ad signed by Coffey County Attorney Douglas P. Witteman and several attorneys that told voters to ignore Hall's claims and re-elect the judge.

Hall sued the newspaper, Fromme, Witteman and others, claiming they violated his First and 14th Amendment rights and federal RICO laws.

The lower court dismissed Hall's lawsuit for failure to state a claim. Hall appealed, but the Denver-based appeals court backed up the lower court.

Writing for the three-judge panel, Judge Harris Hartz found that Hall's complaint was based on the incorrect belief that Witteman, as a county attorney, had influenced the newspaper as a state actor merely by signing on to the ad.

"Mr. Hall's essential concern about Mr. Witteman's official position is not that Mr. Witteman was exercising any of his official powers, but that his official title gave him prestige that would influence voters reading [the ad]," Hartz wrote. "This is not the stuff of which state action is made."

Hall's RICO allegations also failed to convince the court, Hartz wrote, because Hall was unable to prove that there was a continuing threat of racketeering.

"At best, what plaintiff alleges is a closed-ended series of predicate acts constituting a single scheme to accomplish a discrete goal directed at only one individual with no potential to extend to other persons or entities," Hartz concluded.

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