An appeal has already been filed after a Delaware County Common Pleas judge on Monday dismissed an ongoing lawsuit between a former Liberty Township trustee and seven township residents.
The lawsuit was filed by Mike Gemperline in 2020 and accuses seven township residents of abuse of process, defamation and intentional infliction of emotional distress in connection with a petition they filed in 2019 to remove Gemperline from office.
Gemperline alleged in his lawsuit that the seven Liberty Township residents used speculation that he wanted to dismantle Liberty Township EMS and instead rely on Delaware County EMS for emergency services to get residents to sign the petition. Gemperline said the speculation was false, and he never planned to reduce services in the township. The petition succeeded, and a complaint was filed against Gemperline, though it was later voluntarily dismissed.
In 2020, Delaware County Common Pleas Judge David M. Gormley dismissed the lawsuit, but a successful appeal to the Fifth District Court of Appeals allowed the abuse of process claim to continue against the defendants: Domenico Franano, Karen Slavik, Rebecca Mount, Susan Miceli, Kerry Daly, William Houk and Gary R. Johnson.
However, on Monday, Gormley granted the defendant’s January motion to dismiss the lawsuit based on the Noerr-Pennington doctrine, which broadly immunizes individuals who petition the government by invoking the First Amendment.
“Federal courts in Ohio have held that the First Amendment and the Noerr-Pennington doctrine protect petitioning activity, regardless of its harmful effect and regardless of the petitions’ motive,” Gormley wrote in his decision to dismiss the case. “I hold that the Noerr-Pennington doctrine applies to this case and to abuse-of-process claims in Ohio. Defendants are entitled to its presumption of immunity for their petitioning activity in filing the July 2019 removal petition against Gemperline.”
Gormley added the fraud or sham-litigation exceptions to the Noerr-Pennington doctrine do not apply in this case because the petition was not “objectively baseless.”
“Allowing a public official to sue his constituents for abuse of process for attempting to remove him from office would have a chilling effect on the right to petition, which is guaranteed by the First Amendment … as well as a chilling effect on the use of Ohio’s removal statute,” Gormley wrote.
Gormley also dismissed Gemperline’s claim for punitive damages and ordered him to pay all court costs.
Gemperline, who lost his bid for reelection to the Liberty Township Board of Trustees in November 2021, filed an appeal to the Fifth District Court of Appeals on Tuesday.