Scott D. Lemoine Beverly P. Lemoine v. Elizabeth P. Wolfe
168 So. 3d 362
| La. | 2015Background
- Scott Lemoine posted accusatory internet statements about Judge Elizabeth P. Wolfe and was arrested under Louisiana’s cyberstalking statute; bail conditions and a GPS bracelet requirement led to prolonged incarceration and revocation of federal supervised release.
- Lemoine was later charged with solicitation of Judge Wolfe’s murder based on inmate Brian Register’s fabricated materials; those materials were later shown to be fabricated.
- The state filed bills of information for cyberstalking and solicitation; after a probable cause hearing dismissed the murder solicitation for lack of probable cause, the DA entered nolle prosequi dismissals under La. C.Cr.P. art. 691, and Lemoine was released.
- Lemoine and his wife sued Judge Wolfe for malicious prosecution in federal court; the district court granted summary judgment for Wolfe on the ground that the DA’s Article 691 dismissal did not constitute a bona fide termination in Lemoine’s favor.
- The Fifth Circuit found disputed facts on most elements of malicious prosecution but certified the narrow legal question whether an Article 691 dismissal can satisfy the bona fide termination element under Louisiana law.
- The Louisiana Supreme Court answered: an Article 691 dismissal (nolle prosequi) does constitute a bona fide termination in favor of the accused unless the dismissal is for reasons inconsistent with innocence (e.g., compromise, defendant misconduct to avoid trial, mercy, pending new proceedings, or impossibility/impracticability of trial). The court remanded factual disputes to the Fifth Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a dismissal under La. C.Cr.P. art. 691 is a "bona fide termination" for malicious prosecution | Lemoine: A nolle prosequi may indicate lack of reasonable grounds and therefore can be a favorable termination; circumstances (timing after motion to quash, DA language re: insufficient evidence, failure to refile) support that inference | Wolfe: The Article 691 dismissal was procedural due to impracticability (DA policy not to extradite misdemeanants while Lemoine was in out-of-state custody), so it does not indicate innocence | Held: Yes — a DA dismissal under art. 691 can be a bona fide termination unless the dismissal resulted from compromise, defendant misconduct to prevent trial, mercy, a new pending prosecution, or impossibility/impracticability of trial; factual disputes remain for the appellate court/trier of fact |
Key Cases Cited
- Jones v. Soileau, 448 So.2d 1268 (La. 1984) (articulates elements of malicious prosecution)
- Savoie v. Rubin, 820 So.2d 486 (La. 2002) (dismissal on venue ground is not a bona fide termination)
- Deville v. Marcantel, 567 F.3d 156 (5th Cir. 2009) (federal panel previously suggested only a merits judgment qualifies as bona fide termination)
- Garnier v. Bernard, 14 So. 189 (La. 1893) (nolle prosequi plus failure to refile can satisfy favorable termination)
- Banken v. Locke, 66 So. 763 (La. 1914) (nolle prosequi terminates prosecution for the present and supports malicious prosecution suit)