Court rules in favor of judge, county in Lemaster lawsuit

By TONY FYFFE

BSN Editor

ASHLAND — A federal judge last week ruled in favor of the Lawrence County Fiscal Court and Judge-Executive Phillip Carter filed by the owners of a local wrecker service.

U.S. District Judge David L. Bunning granted summary judgment to the fiscal court and Carter in a lawsuit brought by Billy and Amanda Lemaster, owners of Lemaster Towing and Recovery.

The Lemasters claimed in their 2020 lawsuit that Carter interfered and caused their towing company to lose business. They said in the complaint that their towing service is on the call list maintained by Lawrence County and used by emergency personnel when a tow truck is needed by law enforcement.

“Prior to interference by the Lawrence County Judge Executive, Phillip Carter, Lemaster Towing would receive five to six towing calls per month from the county needing towing services,” the lawsuit says. “However, following interference by Carter with the towing call list, Lemaster Towing started receiving zero to as little as one call per month.”

The suit said that when Carter was first elected in January 2019, the couple expressed concerns to him that they were receiving “very little or no calls” from the county using the tow call list. Carter told them he would investigate and make sure they began receiving more towing calls, the suit says.

In April 2019, Billy Lemaster “expressed his personal opinions on Facebook concerning a recent firing of a Lawrence County EMS employee and was critical of the County’s decision,” the suit said. “On April 14, 2019, Defendant Carter called Billy Lemaster and demanded that he remove his Facebook post concerning his personal opinions because of the post’s poor reflection on Defendant Carter as Judge Executive. In exchange for removing the negative Facebook post, Defendant Carter stated that he would go to the Lawrence County EMS office in the morning to make sure Plaintiff began receiving more towing calls. Plaintiff Billy Lemaster agreed to remove the negative Facebook post according to Defendant Carter’s wishes.”

The suit says Carter went the next day to the county EMS office to “fix the issue with the tow call list and to make sure” that the Lemasters began receiving more calls, the lawsuit said.

The Lemasters’ company began receiving more calls from the list and had a “steady volume” of calls throughout the summer of 2019.

The Lemasters alleged in their lawsuit that in September 2019 Carter began “substantially interfering” with operations at Cherryville Fire and Rescue, where Billy Lemaster was serving as head chief at the time.

The Lemasters said in their lawsuit that they discovered that Carter had informed the Lawrence County EMS dispatch that Cherryville Fire and Rescue would not be responding to emergency calls.

“Plaintiffs learned that such interference by Defendant Carter caused a house to burn to the ground, because the EMS dispatch was directed to not dispatch Cherryville Fire Department,” the suit says.

Billy Lemaster resigned as chief at the department in September 2019 due to the conflict with Carter, the suit said.

The lawsuit said that the Lemasters discovered that Carter called the Kentucky Fire Commission to have Cherryville Fire and Rescue audited. Once the audit was completed, the information was relayed to Carter, the suit says.

Carter had no “reasonable justification or authority to command such audit,” the suit says.

In January of this year, Carter “caused the Kentucky State Police to show up at the Cherryville Fire Department were Lemaster was employed in order to inspect the premises, which is a task designated to the Kentucky Fire Commission,” the lawsuit said.

Also in January, the Lemasters received a phone call from the sheriff asking why he was getting calls from Carter requesting that the sheriff do an inventory of the fire department.

“On January 17, 2020, Plaintiffs received a call from the Lawrence County Sheriff’s Department that Defendant Carter instructed the Sheriff’s department to cut the locks off the doors in order to inspect Cherryville Fire and Rescue, having no right, justification or authority to make such commands,” the lawsuit said.

The lawsuit alleges that ever since Carter’s interference with Lemaster at the Cherryville Fire Department, the Lemasters experienced a sudden drop in the amount of towing calls they were receiving from the county starting in September 2019.

Bunning had previously ruled in favor of the fiscal court and Carter concerning claims against Carter in his official capacity, a Kentucky Civil Rights Act violations claim and a “tortious interference claim” concerning the county.

The defendants said in a motion for summary judgment on the remaining claims that Carter was entitled to qualified immunity as a defense to the allegations against him in his individual capacity. Bunning agreed.

“While it appears that Judge Carter may have made questionable choices with respect to the towing rotation, and while there was undoubtedly a personal dispute between the Lemasters and Carter that spilled over into the operations of the county government, this Court is not in the business of mediating personal disputes,” Bunning wrote in his Jan. 26 opinion. “This Court is in the business of adjudicating disputes solely within its limited jurisdiction, and in this case, the Court’s jurisdiction rests on a First Amendment claim. For this constitutional claim to survive, Plaintiffs must show (1) protected speech, (2) adverse action, and (3) a causal connection between the two.

“Even if Carter did have a ‘retaliatory mindset’ in removing the Lemasters from the towing rotation, a ‘retaliatory mindset’ purely stemming from a personal dispute, and even one intensified by a few rash Facebook posts, is unfortunately not actionable under Section 1983 and the First Amendment,” Bunning said. “After all, ‘action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway.’ In the modern world of social media, as made clear by this case, it is easy to air one’s grievances in a public forum, but airing grievances in a public forum does not always invoke the Constitution and its protections, no matter how messy or problematic the surrounding dispute may be. As previously mentioned, courts are tasked to critically analyze constitutional claims, as ‘it would trivialize the First Amendment’ to hold that every dispute involving public speech is constitutionally actionable. In sum, because no reasonable jury could find for Plaintiffs on this claim, summary judgment must be granted in favor of Defendants on Plaintiffs’ Section 1983 claim against Carter in his individual capacity.”

The Lemasters also brought a claim against the county concerning municipal liability for allegedly suffering constitutional injuries resulting from Lawrence County’s policies or procedures, specifically that Carter violated them.

Bunning entered summary judgment in favor of the county on the claim, saying that “even a rogue county official violating a policy is not necessarily a constitutional violation.”

Bunning said that due to summary judgment being granted in favor of the fiscal court and Carter on the other issues, the question of whether Carter is entitled to qualified immunity was moot.