Stella v. Kelley ( 1995 )


Menu:
  • USCA1 Opinion








    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    _________________________


    No. 95-1223

    CHARLES STELLA, ET AL.,

    Plaintiffs, Appellees,

    v.

    JOHN J. KELLEY, JR., ET AL.,

    Defendants, Appellants.

    __________________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. A. David Mazzone, Senior U.S. District Judge] __________________________

    __________________________

    Before

    Selya, Cyr and Lynch,

    Circuit Judges. ______________

    __________________________

    Richard E. Brody, with whom Thomas M. Elcock and Morrison, _________________ _________________ _________
    Mahoney & Miller were on brief, for appellants. ________________
    Harvey A. Schwartz, with whom Schwartz, Shaw & Griffith was __________________ _________________________
    on brief, for appellees.

    __________________________

    August 23, 1995

    __________________________




















    SELYA, Circuit Judge. This appeal, which requires us SELYA, Circuit Judge. ______________

    to apply the teachings of Johnson v. Jones, 115 S. Ct. 2151 _______ _____

    (1995), furnishes virtually a textbook model of the limits of

    interlocutory review of qualified immunity matters in the post-

    Johnson era. We conclude that we have jurisdiction over only one _______

    facet of the appeal and, on that facet, we affirm the challenged

    order.

    I. BACKGROUND I. BACKGROUND

    This case comes before us for the second time. See ___

    Stella v. Town of Tewksbury, 4 F.3d 53 (1st Cir. 1993). We ______ __________________

    retell the tale only to the extent necessary to put the issues

    that we must decide into workable perspective.

    In Tewksbury, Massachusetts (the Town), the five

    members of the Zoning Board of Appeals (the Board) are appointed

    for fixed terms by the Town's governing body (the Board of

    Selectmen) and may be removed during their terms only for cause.

    Plaintiffs Charles Stella, J. Peter Downing and Bruce Gordon

    formerly served on the Board. In that capacity, they voted to

    grant several controversial variances. When residents complained

    and the selectmen urged stricter enforcement of the Town's zoning

    code, the Board balked. Even after the selectmen instigated a

    citizens' petition demanding greater rigor, and succeeded in

    attracting over 1,000 signatures, the Board did not mend its

    ways.

    In October of 1989, the selectmen created a two-member

    subcommittee to investigate the Board's performance. The


    2












    subcommittee held public hearings at which various complaints

    were aired. When the Board refused to change course, the

    selectmen decided to clean house. After the Commonwealth's

    attorney general thwarted an effort by two selectmen, John J.

    Kelley, Jr. and William J. Hurton, to reduce the size of the

    Board from five members to three, the selectmen instituted

    proceedings regarding the possible removal of Board members for

    cause.1 This time, a bare majority of the selectmen Kelley,

    Hurton, and Thomas Camara succeeded in ousting members of the

    Board from office on a series of three-to-two votes.2

    In May 1991, three of the casualties of this putsch

    filed suit against Kelley, Hurton, Camara, and the Town pursuant

    to 42 U.S.C. 1983 (1988). Their flagship claim was that the

    selectmen cashiered them in retaliation for their speech (the

    votes they had cast), thus abridging the First Amendment.3

    We need not recount the murmur of skirmishes that

    ensued. It suffices to say that after two notoriously false

    ____________________

    1The selectmen acted in pursuance of a statute providing in
    relevant part that any member of a municipal zoning board of
    appeals "may be removed for cause by the appointing authority
    upon written charges and after a public hearing." Mass. Gen. L.
    ch. 40A, 12 (1975).

    2The selectmen held a separate hearing for each Board
    member. The hearings occurred on various dates from September to
    December, 1990. Separate votes were taken with regard to each
    ouster.

    3Although the complaint contained other statements of claim,
    e.g., an allegation that the selectmen improperly conducted the
    removal hearings, thus depriving the plaintiffs of procedural due
    process, the instant appeal relates solely to the First Amendment
    claim and, hence, we confine our account to that claim.

    3












    starts (one of which sparked the parties' earlier journey to this

    court) the selectmen moved for summary judgment on qualified

    immunity grounds. The district court at first granted the motion

    but, on reconsideration, reversed its field. The selectmen now

    appeal from the order denying summary judgment.

    II. DISCUSSION II. DISCUSSION

    We begin with the architecture of the qualified

    immunity defense. We then consider the teachings gleaned from

    Johnson v. Jones. Finally, we apply the lessons we have learned _______ _____

    to the problems that confront us.

    A A

    Public officials accused of civil rights violations may

    raise the defense of qualified immunity as a shield against

    claims for damages arising out of their actions. If, however,

    the official's conduct violated some right emanating from federal

    law, and if the law was clearly established at the time of the

    infringement, so that an objectively reasonable actor would have

    realized that his conduct violated the plaintiff's rights, then

    the qualified immunity defense is unavailable. See Harlow v. ___ ______

    Fitzgerald, 457 U.S. 800, 818-19 (1982); Buenrostro v. Collazo, __________ __________ _______

    973 F.2d 39, 42 (1st Cir. 1992). Thus, the doctrine of qualified

    immunity limits a plaintiff's damages against state actors

    "insofar as their conduct does not violate clearly established

    statutory or constitutional rights of which a reasonable person

    would have known." Harlow, 457 U.S. at 818. ______

    The meaning of the adjectival phrase "clearly


    4












    established," as it operates in the qualified immunity arena, has

    not always been clearly established. The Court has, however,

    attempted to explicate the phrase:

    The contours of the right must be
    sufficiently clear that a reasonable official
    would understand that what he is doing
    violates that right. This is not to say that
    an official action is protected by qualified
    immunity unless the very action in question
    has previously been held unlawful, but it is
    to say that in the light of preexisting law
    the unlawfulness must be apparent.

    Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation ________ _________

    omitted); see also Crooker v. Metallo, 5 F.3d 583, 585 (1st Cir. ___ ____ _______ _______

    1993); Rodi v. Ventetuolo, 941 F.2d 22, 30 (1st Cir. 1991). We ____ __________

    recently wrote: "The inquiry into the nature of a constitutional

    right for the purpose of ascertaining clear establishment seeks

    to discover whether the right was reasonably well settled at the

    time of the challenged conduct and whether the manner in which

    the right related to the conduct was apparent." Martinez v. ________

    Colon, 54 F.3d 980, 988 (1st Cir. 1995). _____

    B B

    The qualified immunity defense is, in part, an immunity

    from trial as well as an immunity from damage awards. See ___

    Siegert v. Gilley, 500 U.S. 226, 232 (1991). Thus, the defense _______ ______

    may be asserted by a pretrial motion and, if the motion is

    rejected, immediate appellate review is sometimes available. See ___

    Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). ________ _______

    In Johnson v. Jones, the Supreme Court cast new light _______ _____

    on the circumstances under which an immediate appeal will lie


    5












    from the denial of a pretrial motion asserting a qualified

    immunity defense. The plaintiff, Houston Jones, brought a

    section 1983 action against five police officers, claiming that

    they used excessive force incident to his arrest and detention.

    Three of the five officers proffered a qualified immunity defense

    and moved for summary judgment, contending that they knew nothing

    about the alleged beating. The district court denied the motion,

    finding enough circumstantial evidence to raise genuine issues of

    material fact anent the movants' liability. The movants pursued

    an interlocutory appeal, arguing that the record reflected no

    trialworthy questions. The Seventh Circuit dismissed the appeal,

    discerning an absence of appellate jurisdiction. 26 F.3d 727,

    728 (7th Cir. 1994).

    The Supreme Court granted certiorari and, resolving a

    split in the circuits,4 held that "a defendant, entitled to

    invoke a qualified-immunity defense, may not appeal a district

    court's summary judgment order insofar as that order determines

    whether or not the pretrial record sets forth a `genuine' issue

    of fact for trial." Johnson, 115 S. Ct. at 2159. Thus, on the _______

    one hand, a district court's pretrial rejection of a proffered

    qualified immunity defense remains immediately appealable as a

    collateral order to the extent that it turns on a pure issue of
    ____________________

    4Prior to the Court's decision in Johnson, several courts of _______
    appeals (including this court) permitted interlocutory review of
    pretrial "evidence insufficiency" claims made by official
    defendants asserting qualified immunity defenses, while several
    other courts of appeals refused to afford such review. See ___
    Johnson, 115 S. Ct. at 2154 (delineating the division in the _______
    circuits and citing representative cases).

    6












    law, notwithstanding the absence of a final judgment. See id. at ___ ___

    2158; Mitchell, 472 U.S. at 530. On the other hand, a district ________

    court's pretrial rejection of a qualified immunity defense is not

    immediately appealable to the extent that it turns on either an

    issue of fact or an issue perceived by the trial court to be an

    issue of fact. See Johnson, 115 S. Ct. at 2159. In such a ___ _______

    situation, the movant must await the entry of final judgment

    before appealing the adverse ruling. See id.; see also 28 U.S.C. ___ ___ ___ ____

    1291 (1988).

    The bottom line, then, is simply this: a summary

    judgment order which determines that the pretrial record sets

    forth a genuine issue of fact, as distinguished from an order

    that determines whether certain given facts demonstrate, under

    clearly established law, a violation of some federally protected

    right, is not reviewable on demand. In reaching this branch of

    its holding, the Court abrogated our earlier decision in Unwin v. _____

    Campbell, 863 F.2d 124, 132 (1st Cir. 1988) (determining that ________

    appellate jurisdiction exists in qualified immunity cases for

    interlocutory appeals brought to test denials of summary judgment

    that turn on questions of alleged evidentiary insufficiency).

    Consequently, we acknowledge that Unwin and its progeny are no _____

    longer good law.5
    ____________________

    5The law sometimes moves in strange and mysterious ways.
    Our decision in Unwin resolved an apparent conflict between two _____
    lines of First Circuit cases: those that refused to consider
    "evidence insufficiency" issues regarding qualified immunity
    defenses on interlocutory appeal, see, e.g., Roure v. Hernandez ___ ____ _____ _________
    Colon, 824 F.2d 139, 141 (1st Cir. 1987), and those that deemed _____
    the exercise of jurisdiction over such issues to be proper, see, ___

    7












    C C

    The threshold question for our consideration is whether

    Johnson applies retroactively to cases pending on direct appeal _______

    on the date the Court handed down its opinion. We hold that it

    does. When dealing with matters that govern a court's

    jurisdiction, there is no conceivable bar to retroactive

    application of a "new," judicially declared rule. Thus,

    regardless of the fact that the selectmen filed their notice of

    appeal prior to the Court's decision, Johnson controls. _______

    In this case, Johnson requires that we parse the _______

    complaint. The plaintiffs claim that the selectmen removed them

    from the Board because of their voting patterns, and that this

    unceremonious dumping infringed a constitutionally protected

    right (free speech). The legal framework that applies to claims

    of this genre is settled beyond hope of contradiction. When a

    former government employee brings a First Amendment suit against

    his employer for taking an adverse employment action against him

    on the basis of his speech, the premier precedent is Mt. Healthy ___________

    City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). _______________________________ _____

    Under the Mt. Healthy paradigm, the plaintiff must show both that ___________

    his speech was constitutionally protected, and that it was a

    "substantial" or "motivating" factor for the adverse action taken

    against him. Id. at 287. If the plaintiff meets these ___

    requirements, the burden of persuasion shifts, and the defendant
    ____________________

    e.g., Emery v. Holmes, 824 F.2d 143, 147 (1st Cir. 1987). Having ____ _____ ______
    come full circle, we now reinstate Roure as the law of the _____
    circuit.

    8












    must then prove "by a preponderance of the evidence" that the

    employment action was not affected by the speech, that is, that

    the employer would have acted in the same way toward the

    plaintiff "even in the absence of the protected conduct." Id. ___

    The plaintiffs' First Amendment claim tracks this

    model. They say, in substance, that their votes were

    constitutionally protected, and that the selectmen's desire to

    stifle this "speech" was the salient factor in their removal.

    The selectmen offer a twofold rejoinder. They assert, first,

    that the plaintiffs' votes are not constitutionally protected

    speech (or, at least, that the constitutional protection was not

    clearly established in 1990, when the selectmen acted), and,

    second, that the evidence conclusively shows that the plaintiffs

    were ousted for due cause, namely, incompetence, dereliction of

    duty, and an intransigent refusal to follow the law.

    In denying the selectmen's motion for summary judgment,

    the lower court resolved both of these points in the plaintiffs'

    favor; the court ruled that the plaintiffs' votes were entitled

    to free-speech protection, and that the plaintiffs had limned a

    trialworthy question as to the selectmen's motivation. The

    selectmen challenge this ruling in both its particulars.

    D D

    The interface between Johnson and the two-pronged Mt. _______ ___

    Healthy test provides an excellent example of the newly stated _______

    limits on appellate jurisdiction in respect to interlocutory

    appeals from pretrial orders rejecting qualified immunity


    9












    defenses. Under Johnson, we have jurisdiction to inquire into _______

    the first of the selectmen's challenges, that is, to examine the

    existence vel non of a constitutionally protected right. See ___ ___ ___

    Johnson, 115 S. Ct. at 2158. But we lack the power to inquire _______

    into, or address, the second of these challenges, that is, the

    fact-based question of what the evidence does (or does not) show

    concerning whether the selectmen's actions violated the asserted

    right a question that depends, in this case, on the selectmen's

    motives in ejecting the plaintiffs from their seats on the Board.

    See id. at 2159. ___ ___

    The initial question under Mt. Healthy asks whether a ___________

    constitutionally protected right is in play at all. This is

    essentially a legal, not a factual, inquiry. See Wright v. ___ ______

    Illinois Dep't of Children & Family Servs., 40 F.3d 1492, 1498-99 __________________________________________

    (7th Cir. 1994); Williams v. Kentucky, 24 F.3d 1526, 1532 (6th ________ ________

    Cir.), cert. denied, 115 S. Ct. 358 (1994). As the query is _____ ______

    framed, the answer to it does not depend upon whose account of

    the facts is correct. Thus, Johnson which permits immediate _______

    review of the rejection of a qualified immunity claim when the

    issue appealed concerns not what facts the litigants might (or

    might not) be able to prove, but, rather, whether a given set of

    facts shows a violation of a federally protected right permits

    immediate review of the trial court's order in this respect. See ___

    Johnson, 115 S. Ct. at 2158; Mitchell, 472 U.S. at 528. Since _______ ________

    appellate jurisdiction exists to this extent, we proceed to

    examine the selectmen's contention on its merits.


    10












    Basically, the selectmen maintain that the speech at

    issue here votes cast by public officials is not a form of

    speech protected by the First Amendment. We do not agree.

    Voting by members of municipal boards, commissions, and

    authorities comes within the heartland of First Amendment

    doctrine, and the status of public officials' votes as

    constitutionally protected speech was established beyond

    peradventure of doubt at the time the selectmen defenestrated the

    plaintiffs.

    The dispositive precedent on these points is our

    opinion in Miller v. Town of Hull, 878 F.2d 523 (1st Cir.), cert. ______ ____________ _____

    denied, 493 U.S. 976 (1989). In Miller, a section 1983 case, the ______ ______

    municipality's board of selectmen allegedly forced the removal of

    certain elected members of the Hull Redevelopment Authority

    because of the latter's support for construction projects that

    the selectmen opposed. See id. at 526-28. There, as here, the ___ ___

    selectmen attempted to justify the ouster on grounds of neglect

    and inefficiency. See id. at 528. Following a jury ___ ___

    determination that the plaintiffs were dismissed for their

    political opinions, and not for the reasons cited by the

    selectmen, the defendants appealed. They averred, inter alia, _____ ____

    that the votes cast by the plaintiffs did not comprise

    constitutionally protected speech. See id. at 532-33. We ___ ___

    rejected this asseveration, concluding that votes cast by public

    officials merit First Amendment protection. Judge Bownes,

    writing for this court, stated:


    11












    [W]e have no difficulty finding that the act
    of voting on public issues by a member of a
    public agency or board comes within the
    freedom of speech guarantee of the first
    amendment. . . . There can be no more
    definite expression of opinion than by voting
    on a controversial public issue.

    Id. at 532 (footnote omitted). We went on to hold that "elected ___

    members of a public agency may not be removed from office for

    voting contrary to the wishes of the Board of Selectmen." Id. at ___

    533.

    Given this stalwart precedent which, like fine wine,

    has only improved with age it is beyond serious question that

    votes cast by the members of municipal boards are ordinarily

    entitled to First Amendment protection, and that this protected

    status was clearly established prior to the date of the present

    denouement.6 Thus, unless some distinctive feature of this case
    ____________________

    6Indeed, we reached this precise conclusion in Miller: ______

    We find that in the light of pre-
    existing law, the unlawfulness of removing
    plaintiffs from their positions . . . should
    have been apparent to defendants. . . . At
    the time the removals were effected, there
    was firmly embedded in our constitutional
    fabric the principle that government
    employees could not be discharged for reasons
    that infringed on the employee's right of
    freedom of speech.

    * * *

    A reasonable member of the Board of
    Selectmen would have understood that removal
    of the members of the [Authority] for voting
    as they did, was an egregious violation of
    plaintiffs' first amendment right. . . .
    There is no basis for defendant's claim of
    qualified immunity.


    12












    snatches it from Miller's precedential orbit, the plaintiffs have ______

    satisfied Mt. Healthy's first prong. See Rankin v. McPherson, ____________ ___ ______ _________

    483 U.S. 378, 383 (1987) ("It is clearly established that a State

    may not discharge an employee on a basis that infringes that

    employee's constitutionally protected interest in freedom of

    speech."); Perry v. Sindermann, 408 U.S. 593, 597 (1972) _____ __________

    (similar).

    E E

    The selectmen labor to distinguish Miller in three ______

    ways, but to no avail. First, they posit that Miller involved ______

    the removal of elected officials whereas this case involves the _______

    removal of appointed officials. This is a distinction without a _________

    difference. The selectmen have offered no plausible rationale

    for variable treatment, and no language in Miller supports the ______

    conclusion that the First Amendment right at issue applies less

    broadly to appointed officials as contrasted with elected

    officials. We, therefore, decline the defendants' invitation to

    create a wholly artificial dichotomy.

    Second, the selectmen observe that the language of the

    relevant removal statutes is not identical. This is true as far

    as it goes, but it does not go very far. The applicable statute

    in Miller allowed removal of agency members for "inefficiency, ______

    neglect of duty or misconduct in office." Mass. Gen. L. ch.

    121B, 6 (1969). Here, the applicable statute permits the

    removal of Board members "for cause." Mass. Gen. L. ch. 40A,
    ____________________

    Miller, 878 F.2d at 534 (citations omitted). ______

    13












    12 (1975). Once again, the selectmen have advanced no cogent

    reason why these slight variances in terminology warrant a

    significant dilution of the First Amendment protection that

    safeguards votes cast by officials who are subject to removal

    under section 12.

    The selectmen reserve their most impassioned rhetoric

    for their protest that the votes at issue here were "illegal,"

    and that the illegality somehow stripped away the constitutional

    protection that otherwise would have attached.7 We are not

    convinced. This argument is merely a back-door approach to an

    examination of the defendants' reasons for banishing the

    plaintiffs a topic that, under current circumstances, cannot be

    broached on interlocutory appeal. See text infra. And, ___ _____

    relatedly, the district court rejected this argument on fact- _____

    based grounds; since Johnson precludes us from inquiring into _____ _______

    factual controversies on an interlocutory appeal, see Johnson, ___ _______

    ____________________

    7This argument uses as a vaulting pole a footnote in Miller, ______
    878 F.2d at 533 n.14, in which Judge Bownes quoted United States _____________
    v. City of Yonkers, 856 F.2d 444, 457 (2d Cir. 1988) (subsequent _______________
    history omitted as irrelevant), to the effect that "just as the
    First Amendment would not permit [council members] to incite
    violation of federal law, it does not permit them to take action
    in violation of such law." Yonkers is inapposite here. That _______
    case involved members of a city council who refused to cast votes
    necessary to effectuate a federal court decree. See id. at 452. ___ ___
    The recalcitrant council members tried to raise the First
    Amendment as a shield against the federal court's order. See id. ___ ___
    at 457. On appeal, the Second Circuit balanced the First
    Amendment claims against "the public interest in obtaining
    compliance with federal court judgments that remedy
    constitutional violations," and found that enforcing federal
    court orders "unquestionably justifies whatever burden on
    expression has occurred." Id. It is readily apparent that the ___
    situation in Yonkers has no known parallel in Tewksbury. _______

    14












    115 S. Ct. at 2159, we cannot undertake here and now the

    factbound delving into illegality that the selectmen's argument

    necessarily entails.

    In sum, we have jurisdiction to hear an interlocutory

    appeal from a pretrial order denying summary judgment on the

    basis of qualified immunity to the extent that the appeal

    challenges the trial court's legal determination that votes cast

    by members of a local zoning board comprise constitutionally

    protected speech. Exercising this jurisdiction, we find that the

    defendants' efforts to deflect the Miller rule are unavailing. ______

    Consequently, we hold that the votes cast by the plaintiffs, in

    their capacity as Board members, are entitled to protection under

    the First Amendment. Since the law from which this holding

    prescinds was clearly established in 1990, the district court's

    refusal to grant summary judgment on this ground cannot be

    faulted.

    F F

    The second prong of the Mt. Healthy paradigm addresses ___________

    whether or not the constitutionally protected speech amounted to

    a "substantial" or "motivating" factor in the decision to

    terminate the plaintiffs qua Board members. See Mt. Healthy, 429 ___ ___ ___________

    U.S. at 287. When this appeal was taken on February 27, 1995,

    Unwin reflected the law of this circuit, and, thus, we would have _____

    entertained an interlocutory appeal of the district court's

    determination that the amassed evidence sufficed to raise a

    trialworthy issue. Johnson, however, demands a different _______


    15












    outcome. Although the selectmen tell a plausible tale to the

    effect that they ousted the plaintiffs for dereliction of duty

    rather than on speech-related grounds, that tale is factbound.

    The district court, in declining to grant the motion for brevis ______

    disposition, did so on the basis that the summary judgment record

    contained enough evidence to raise triable issues of fact

    concerning the selectmen's motivation. While the selectmen claim

    that this decision is deeply flawed, Johnson bars pretrial _______

    appellate review of such "evidentiary insufficiency" claims. See ___

    Johnson, 115 S. Ct. at 2159 (holding that "a defendant, entitled _______

    to invoke a qualified-immunity defense, may not appeal a district

    court's summary judgment order insofar as that order determines

    whether or not the pretrial record sets forth a `genuine' issue

    of fact for trial"). Indeed, Justice Breyer anticipated this

    very type of circumstance, and made it clear that such cases fell

    within the class of cases in which an interlocutory appeal does

    not lie. See id. at 2158 (explaining that the jurisdictional bar ___ ___

    extends to "constitutional tort cases . . . [that] involve

    factual controversies about, for example, intent").

    Accordingly, we may go no further. We lack

    jurisdiction to review, on an interlocutory basis, the district

    court's finding that there is a genuine factual dispute regarding

    a substantive element of the plaintiffs' constitutional claim,

    namely, the selectmen's actual motivation in removing the






    16












    plaintiffs from office.8



    Affirmed. Affirmed. ________








































    ____________________

    8We see no anomaly in our determination that one facet of
    the defendants' appeal passes Johnson muster though the other _______
    facet does not. Indeed, the Court anticipated that such
    schismatic situations would develop. See Johnson, 115 S. Ct. at ___ _______
    2159.

    17