Brad Chinn v. City of Spokane , 429 F. App'x 673 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 27 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRAD CHINN, No. 10-35550
Plaintiff - Appellant, D.C. No. 2:09-cv-00354-EFS
v.
MEMORANDUM*
CITY OF SPOKANE; MARY VERNER;
JOE SHOGAN; NANCY
MCLAUGHLIN; MIKE ALLEN; AL
FRENCH; STEVE CORKER; RICHARD
RUSH,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted April 14, 2011*
Seattle, Washington
Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.
Brad Chinn appeals the district court’s dismissal of his 42 U.S.C. § 1983action against the City of Spokane, Mary Verner, Joe Shogan, Nancy McLaughlin,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Mike Allen, Al French, Steve Corker, and Richard Rush for wrongful retaliation in
violation of the First Amendment. We have jurisdiction pursuant to 28 U.S.C. §
1291. We review de novo the district court’s dismissal for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6), see Williamson v. Gen.
Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000), and affirm.
To recover under section 1983 for retaliation in violation of the First
Amendment, a plaintiff must establish that: “(1) he engaged in constitutionally
protected activity; (2) as a result, he was subjected to adverse action by the
defendant that would chill a person of ordinary firmness from continuing to engage
in the protected activity; and (3) there was a substantial causal relationship between
the constitutionally protected activity and the adverse action.” Blair v. Bethel Sch.
Dist., 608 F.3d 540, 543 (9th Cir. 2010). But Chinn’s case, like the plaintiff’s case
in Blair, “is not a typical First Amendment retaliation case” because the “adverse
action” being challenged “was taken by his peers in the political arena.” Id. at 543.
Chinn, like the plaintiff in Blair, “has little in common with the[] prototypical
plaintiffs” in First Amendment retaliation cases, such as the “government worker
who loses his job as a result of some public communication critical of the
government entity for whom he works,” or the “regulated entity that is stripped of
its business license after engaging in speech that displeases the regulator.” Id. at
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544 (internal citations omitted). Chinn, by contrast, had his appointment revoked
through the ordinary functioning of the judicial-confirmation process.
Furthermore, as was the case in Blair, Chinn “isn’t the only party in this case
whose interests implicate First Amendment concerns.” Id. at 545. While Chinn
undoubtedly had a First Amendment right to file a land use petition protesting a
proposed zoning change, the city council members had the corresponding right to
confirm a nominee they viewed as most fit for the municipal court judgeship, and
Mayor Verner had the right to choose a municipal court nominee who the city
council would confirm. Id. at 545-46; see also Stella v. Kelley, 63 F.3d 71, 75 (1st
Cir. 1995) (“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 [is] established
beyond peradventure of doubt . . . .”). Finally, as we noted in Blair, “we expect
political officials to cast votes in internal elections in a manner that is, technically
speaking, retaliatory, i.e., to vote against candidates whose views differ from their
own.” 608 F.3d at 544. Although the city council members never cast on-the-
record votes against Chinn’s confirmation, that distinction alone does not save his
claim. To accept Chinn’s argument would be to hold that the First Amendment
prohibits elected officials from choosing not to confirm, or appoint, judicial
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officials whose speech or views they don’t embrace. See id. at 544-45. But
“[e]xperience and political reality convince us this argument goes too far; the First
Amendment does not succor casualties of the regular functioning of the political
process.” Id. at 545. Therefore, even if the defendants’ actions towards Chinn
stemmed from his filing of a land use petition against the City of Spokane, their
actions “did not amount to retaliation in violation of the First Amendment.” Id. at
546. Because we affirm the district court’s dismissal on the ground that Chinn
fails to state a claim pursuant to Rule 12(b)(6), we need not address whether the
defendants are entitled to absolute legislative immunity.
AFFIRMED.
FILED
Chinn v. City of Spokane, No. 10-35550 APR 27 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TASHIMA, Circuit Judge, concurring in the judgment:
I do not agree that Blair v. Bethel School District, 608 F.3d 540 (9th Cir.
2010), controls this case. Unlike Blair, this is not a case in which “the ‘adverse
action’ being challenged ‘was taken by his [the plaintiff’s] peers in the political
arena.’” Maj. Op. at 2 (quoting Blair, 608 F.3d at 543). Also, unlike Blair, this is
not a case in which “‘political officials [] cast votes in internal elections . . . .’”
Maj. Op. at 3 (quoting Blair, 608 F.2d at 544). And, while I agree with the
majority that “city council members had the . . . right to confirm a nominee they
viewed as most fit for the municipal court judgeship,” id., that does not address,
much less answer, the question of whether, as alleged by plaintiff, the city council
had the right to refuse to confirm a nominee for an unconstitutional reason. I
disagree with the majority’s conclusion that the removal of a member from a
“titular position” due to the internal politics of the Board in Blair, 608 F.3d at 546,
is equivalent to “the defendants’ actions towards Chinn stemm[ing] from his filing
of a land use petition against the City of Spokane,” such that defendants’ “actions
‘did not amount to retaliation in violation of the First Amendment.’” Maj. Op. at 4.
Because Blair is not directly applicable to and does not control this case, I
would avoid the difficult constitutional issues presented in this case and go directly
to the immunity issues and hold that defendants who are members of the city
council are entitled to absolute legislative immunity. See Community House v. City
of Boise, 623 F.3d 945, 960-63 (9th Cir. 2010). And, although it is a closer
question, I would further hold that Mayor Verner also is entitled to legislative
immunity. See id. at 963-64. Moreover, even if defendant Verner were not
entitled to absolute legislative immunity, because a judicial nominee’s First
Amendment rights in the context of the legislative confirmation process are not
clearly established, I would alternatively hold that Mayor Verner is entitled to
qualified immunity. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
For the above stated reasons, I agree with the majority that the judgment of
the district court should be affirmed.
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