Maria Brandon v. Maricopa County

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA BRANDON, No. 14-16910
Plaintiff-Appellee,
D.C. Nos.
v. 2:12-cv-00788-FJM
2:13-cv-01148-FJM
MARICOPA COUNTY; SANDRA
WILSON; ROCKY ARMFIELD;
PAUL WILSON; CHRIS OPINION
ARMFIELD,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Argued and Submitted October 20, 2016
San Francisco, California
Filed February 23, 2017
Before: Carlos T. Bea and Sandra S. Ikuta, Circuit Judges,
and Jane A. Restani,* International Trade Judge.
Opinion by Judge Bea
*
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
2 BRANDON V. MARICOPA COUNTY
SUMMARY**
Civil Rights
The panel reversed the district court’s judgment in favor
of plaintiff following jury verdicts and vacated the attorneys’
fee award in plaintiff’s action brought under 42 U.S.C.
§ 1983 and state law alleging she was fired from the
Maricopa County Attorney’s Office in retaliation for a
statement she made to a local newspaper regarding a case
she handled for the Maricopa County Sheriff’s Department.
The panel held that no reasonable jury could conclude
that County risk management officials improperly interfered
with plaintiff’s employment contract when they requested
reassignment of her risk management cases to other lawyers
after she made statements to the newspaper. Accordingly, the
panel reversed the jury’s verdict against the defendant
officials on the state law tortious interference with contract
claim because, as a matter of law, defendants’ conduct was
not improper.
The panel held that with the legally defined scope of an
attorney’s duties in mind, it was obvious that plaintiff’s
comments to the newspaper could not constitute
constitutionally protected citizen speech under the principles
from Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76 (9th Cir.
2013). Accordingly, the panel reversed the jury’s First
Amendment retaliation verdict.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BRANDON V. MARICOPA COUNTY 3
Because the panel remanded for the district court to enter
judgment for defendants, there were no successful claims that
could serve as the basis for a fee award. As such, the panel
held that the district court’s fee award must be vacated.
COUNSEL
Kimberly A. Demarchi (argued) and Jared L. Sutton, Lewis
Roca Rothgerber LLP, Phoenix, Arizona; Michele M. Iafrate,
Iafrate & Associates, Phoenix, Arizona; for Defendants-
Appellants.
Larry J. Cohen (argued), Cohen Law Firm, Phoenix, Arizona,
for Plaintiff-Appellee.
OPINION
BEA, Circuit Judge:
Appellee Maria Brandon worked for many years as a civil
litigation attorney for the Maricopa County Attorney’s Office
(MCAO), and later (briefly) as a direct employee of Maricopa
County, defending the county and related entities in civil
lawsuits, before again returning to her previous employment
at the MCAO. During her time as a direct employee of the
county she received a call at her office from a newspaper
reporter inquiring about a case she was handling for the
Maricopa County Sheriff’s Department. One of her
comments to the reporter about the case was later published
in an article in that newspaper. This article suggested that the
county substantially increased settlement offers to avoid
having key county officials testify.
4 BRANDON V. MARICOPA COUNTY
After Brandon returned to the MCAO, county officials
responsible for overseeing risk management and civil
lawsuits against the county thought her conduct in talking
about the case mentioned was unprofessional for a lawyer
representing the county. In light of what they considered
were justifiable misgivings regarding Brandon’s judgment,
these officials requested that Brandon not be assigned further
cases in which the county was a party and which involved
risk management. Brandon was later terminated from
employment with the MCAO. She filed a lawsuit against the
county and certain county officials. A jury found for
Brandon and against Maricopa County on her claim that she
had been fired in retaliation for her exercise of First
Amendment rights in speaking to the newspaper reporter, and
against certain county officials for state-law based tortious
interference with her employment contract. The district court
entered judgment on the basis of the jury’s verdicts.
We reverse.
I.
Maria Brandon, Appellee-Plaintiff, was employed by the
MCAO for several decades as a civil litigation attorney. She
left the MCAO in 2009 to take a job with the “Special
Litigation” department formed by Maricopa County to
substitute for the MCAO in certain civil lawsuits. While at
Special Litigation and still representing Maricopa County as
an attorney, Brandon spoke to an Arizona Republic reporter
who called her office line to elicit comment on the county’s
settlement of a lawsuit, which claimed sheriff department
brutality towards protestors, in which Brandon was an
attorney of record. The newspaper reporter called Brandon
because a confidential memo Brandon had written was leaked
BRANDON V. MARICOPA COUNTY 5
by person(s) other than Brandon. Brandon expressly
authorized the newspaper to publish her spoken comments
but refrained from commenting directly on the memo. The
newspaper article suggested that the county made an overly
generous settlement offer to prevent embarrassing certain
county officials who might have been required to answer
questions in depositions. On this issue, the newspaper related
that Brandon said: “I don’t know why they did what they did,
and I’m sure they have their reasons.”
Special Litigation was later disbanded after the Arizona
courts ruled that the county did not have statutory authority
to reassign commonplace legal work outside the MCAO.
Brandon was then rehired in 2011 by the MCAO with a
contract that included a probationary period. During the
probationary period, her employment was terminated
ostensibly because of an altercation she had with another staff
member.
After being fired, Brandon filed a lawsuit against
Maricopa County and various county officials for multiple
claims related to her termination. The case was narrowed to
four claims eventually tried to a jury: 1) that Maricopa
County and her MCAO supervisor had retaliated against her
for exercising her First Amendment rights, by talking to the
newspaper reporter, in violation of 42 U.S.C. § 1983; 2) that
the County and her supervisors violated her due process
rights in violation of 42 U.S.C. § 1983 by terminating her
without following proper procedures; 3) that the County had
wrongfully terminated her employment under state law; and
4) that County risk management officials, Sandra Wilson and
Rocky Armfield, had tortiously interfered with her
employment contract by asking the MCAO to reassign her
cases to another lawyer.
6 BRANDON V. MARICOPA COUNTY
Following a seven day trial, the jury returned a verdict in
favor of Brandon against Maricopa County on her claim of
violation of her First Amendment rights in connection with
the newspaper interview and awarded nominal damages of
$1. The jury also returned a verdict in favor of Brandon
against defendants Armfield and Wilson for tortious
interference with her employment contract and awarded
damages of $638,147.94. The jury found for defendants on
Brandon’s due process and wrongful termination claims,
which claims are not at issue in this appeal. Defendants later
filed a motion for judgment as a matter of law or,
alternatively, for a new trial, as to the First Amendment and
contract interference claims, which the district court denied.
The district court subsequently awarded $302,175.28 to the
plaintiff for attorney fees under 42 U.S.C. § 1988(b) as the
prevailing party on the First Amendment claim, a 42 U.S.C.
§ 1983 claim.
On appeal Appellants first argue that, as a matter of law,
the jury wrongfully imposed liability for the tortious
interference with contract claim, for their conduct did not
create legal liability under Arizona tort law. Appellants next
argue that Brandon’s speech to the newspaper was, again as
a matter of law, made pursuant to her official duties and,
therefore, not protected by the First Amendment from
discipline, such that any adverse employment actions taken
against Brandon by her employer because of the newspaper
interview do not give rise to any legal liability under
42 U.S.C. § 1983. Appellants seek reversal on both claims.
II.
Under Arizona tort law, a necessary element of tortious
interference with contract is that such interference be
BRANDON V. MARICOPA COUNTY 7
“improper.”1 Wagenseller v. Scottsdale Mem’l Hosp.,
147 Ariz. 370, 388 (1985) (superseded by statute on other
grounds). Impropriety “generally is determined by weighing
the social importance of the interest the defendant seeks to
advance against the interest invaded.” Snow v. W. Sav. &
Loan Ass’n, 152 Ariz. 27, 34 (1987). The Arizona Supreme
Court has recognized that an action is not “improper” when
an alleged interferer “(1) . . . has or honestly believes he has
a legally protected interest, (2) which he in good faith asserts
or threatens to protect, and (3) he threatens to protect it by
proper means.” Id. at 34–35 (discussing Restatement
(Second) of Torts § 7732). Earlier Arizona case law also cited
in Snow explained: “One is privileged to interfere with a
contract between others when he does so in the bona fide
exercise of his own rights or when he possesses an equal or
superior interest to that of the plaintiffs in the subject matter.”
McReynolds v. Short, 115 Ariz. 166, 170–71 (App. 1977).
1
The Arizona Supreme Court incorporated seven factors from the
Second Restatement of Torts § 767 to guide the analysis of the
impropriety of an action: “(a) the nature of the actor’s conduct, (b) the
actor’s motive, (c) the interests of the other with which the actor’s conduct
interferes, (d) the interests sought to be advanced by the actor, (e) the
social interests in protecting the freedom of action of the actor and the
contractual interests of the other, (f) the proximity or remoteness of the
actor’s conduct to the interference and (g) the relations between the
parties.” Wagenseller, 147 Ariz. at 387.
2
Restatement (Second) of Torts § 773 states: “One who, by asserting
in good faith a legally protected interest of his own or threatening in good
faith to protect the interest by appropriate means, intentionally causes a
third person not to perform an existing contract or enter into a prospective
contractual relation with another does not interfere improperly with the
other’s relation if the actor believes that his interest may otherwise be
impaired or destroyed by the performance of the contract or transaction.”
8 BRANDON V. MARICOPA COUNTY
This doctrine placing a limit on what is “improper” makes
good practical sense. Individuals (such as county
representatives Wilson and Armfield) who have a legitimate
interest in the performance of a contract between two third
parties (such as the employment contract between Brandon
and the MCAO entered into to provide legal services to their
employer, the county) should not face potential tort liability
for concerning themselves with the performance of that
contract. In a word, certain county employees have a
legitimate interest in who is a lawyer for their agency.
The communications of a client (the county, as
represented by Wilson and Armfield) speaking to its attorney
(the MCAO) requesting specific legal personnel be removed
from certain county matters fits the situation contemplated by
Snow and McReynolds. The district court, however, rejected
Appellants’ argument on this point by finding that Maricopa
County’s risk management office (where Wilson and
Armfield worked) was “not the ‘client’ for purposes of this
analysis.” This conclusion is factually incorrect because the
record is undisputed that the risk management office
coordinated, on behalf of the county, with the MCAO to
manage the resolution of civil lawsuits against the county.
The record establishes that the County was acting through its
risk management office and personnel in its interactions with
the MCAO.3 No reasonable jury could find otherwise from
the record here.
3
Indeed even Appellee-Plaintiff’s counsel during trial referred to
Wilson and Armfield as the county’s representatives to the MCAO: “. . .
the representative of the County, including the Board of Supervisors, and
high-level person in County government Sandi Wilson and the head of
Risk Management Rocky Armfield all don’t want you working on these
Risk Management cases?”
BRANDON V. MARICOPA COUNTY 9
As such, risk management officials Wilson and Armfield
had a legally protected interest4 in ensuring the MCAO
provided quality legal services to the county. Wilson and
Armfield requested reassignment of risk management cases
because Brandon publicly commented on a sensitive and
ongoing county legal matter in a manner they reasonably
perceived as unprofessional and betraying her duty of loyalty.
On this record, requesting that MCAO supervisors remove
from certain cases one of their lawyers reasonably perceived
as a liability to the county certainly cannot be considered an
improper means for protecting the county’s legitimate legal
interests, even if Wilson and Armfield did not have statutory
authority to fire Brandon. Under Snow and McReynolds, no
reasonable jury could conclude that Wilson and Armfield
“improperly” interfered with Brandon’s employment contract
(made for the express purpose of serving the county’s legal
needs) when they requested reassignment of risk management
cases to other MCAO lawyers. Arizona law’s respect for a
client’s broad discretion in the selection of a legal
representative of his or her own choosing further undergirds
the propriety of Wilson and Armfield’s actions. ARIZ. SUP.
CT. 42, ER 1.16 cmt. 4 (“A client has a right to discharge a
lawyer at any time, with or without cause, subject to liability
for payment for the lawyer’s services”); State Farm Mut. Ins.
Co. v. St. Joseph’s Hosp., 107 Ariz. 498, 501 (1971) (“[T]he
law in Arizona is clear that a client has the absolute right to
4
Subsequent Arizona case law explained: “An interest is ‘legally
protected’ within the meaning of Restatement § 773 if society recognizes
the interest as so legitimate that everyone is under a duty not to invade it
by interfering with its realization, and those who do so would be civilly
liable to the possessor.” Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430,
434 (App. 2001). The relationship between a county and its legal counsel
would certainly seem to satisfy this definition.
10 BRANDON V. MARICOPA COUNTY
terminate the attorney-client relationship at any time, with or
without cause”).
No reasonable jury could conclude on this record that the
county’s risk management office was “not the ‘client.’” The
tortious interference with contract judgment entered upon the
jury’s verdict against defendants Wilson and Armfield is thus
reversed because, as a matter of law, their conduct was not
improper.
III.
Speech made by public employees in their official
capacity is not insulated from employer discipline by the First
Amendment but speech made in their private capacity as a
citizen is. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)
(“We hold that when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from
employer discipline.”). The Supreme Court has explained
that neither an employee’s job description nor the location or
content of the allegedly protected speech dispositively
determines whether an employee was speaking as a citizen.
Id. at 420–25. Rather, the Supreme Court emphasized that:
The proper inquiry is a practical one. Formal
job descriptions often bear little resemblance
to the duties an employee actually is expected
to perform, and the listing of a given task in
an employee’s written job description is
neither necessary nor sufficient to
demonstrate that conducting the task is within
BRANDON V. MARICOPA COUNTY 11
the scope of the employee’s professional
duties for First Amendment purposes.
Id. at 424–25. Later interpreting the Garcetti case, the Ninth
Circuit affirmed that generally “the question of the scope and
content of a plaintiff’s job responsibilities is a question of
fact.” Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d
1121, 1130 (9th Cir. 2008) (dispute over whether a school
security guard’s duties related to student discipline extended
to internal communications on security policies). See also
Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009) (“the
question of the scope and content of a plaintiff’s job
responsibilities is a question of fact”) (internal quotation
marks and citation omitted). Yet in synthesizing relevant
Ninth Circuit precedent since Garcetti, an en banc panel of
this Court in Dahlia v. Rodriguez, 735 F.3d 1060, 1074–76
(9th Cir. 2013), announced three guiding principles for
undertaking the practical factual inquiry of whether an
employee’s speech is insulated from employer discipline
under the First Amendment. Dahlia involved a First
Amendment retaliation suit brought by a police detective for
being placed on leave after reporting beatings and serious
physical abuse of certain arrested individuals by other
members of the Burbank Police Department. Id. at 1063–64.
The guiding principles are:
1. “First, particularly in a highly hierarchical employment
setting such as law enforcement, whether or not the
employee confined his communications to his chain of
command is a relevant, if not necessarily dispositive,
factor in determining whether he spoke pursuant to his
official duties. When a public employee communicates
with individuals or entities outside of his chain of
12 BRANDON V. MARICOPA COUNTY
command, it is unlikely that he is speaking pursuant to his
duties.” Id. at 1074 (internal citations omitted).
2. “Second, the subject matter of the communication is also
of course highly relevant to the ultimate determination
whether the speech is protected by the First
Amendment. . . When an employee prepares a routine
report, pursuant to normal departmental procedure, about
a particular incident or occurrence, the employee’s
preparation of that report is typically within his job
duties. . . By contrast, if a public employee raises within
the department broad concerns about corruption or
systemic abuse, it is unlikely that such complaints can
reasonably be classified as being within the job duties of
an average public employee, except when the employee’s
regular job duties involve investigating such conduct.”
Id. at 1074–75 (internal citations omitted).
3. “Third, we conclude that when a public employee speaks
in direct contravention to his supervisor’s orders, that
speech may often fall outside of the speaker’s
professional duties. Indeed, the fact that an employee is
threatened or harassed by his superiors for engaging in a
particular type of speech provides strong evidence that the
act of speech was not, as a ‘practical’ matter, within the
employee’s job duties notwithstanding any suggestions to
the contrary in the employee’s formal job description.”
Id. at 1075 (internal citations omitted).
The Dahlia court went on to apply these principles to find
that the record showed that Dahlia’s statements disclosing
police brutality raised triable issues of fact as to whether the
statements were “protected by the First Amendment.” Id. at
1078.
 BRANDON V. MARICOPA COUNTY 13
With this legal standard in mind, we now turn to
Appellants’ argument on appeal. Appellants claim that
Brandon’s comment quoted by the Arizona Republic was
made in her official capacity and thus not protected by the
First Amendment for three reasons: 1) the comment involved
a case she worked on as a county employee, 2) the comment
discussed her work product, and 3) the comment was made
on her county office phone in response to a call during
normal business hours.5 The Appellants conclude from this
that “the only reasonable conclusion that can be drawn is that
Ms. Brandon commented to the press about one of her cases
in her capacity as an attorney for the County,” such that her
speech would not be citizen speech constitutionally protected
under the First Amendment.
The district court rejected this same reasoning explaining
that “[t]he key inquiry in determining whether speech is
public or private is whether the speech was made pursuant to
the employee’s official duties.” Garcetti, 547 U.S. at 421.
The district court emphasized that “the mere fact that a
citizen’s speech concerns information acquired by virtue of
his public employment does not transform that speech into
employee – rather than citizen – speech” and, in fact, public
employees speaking out based on information they learned in
their employment “holds special value.” Lane v. Franks,
134 S.Ct 2369, 2379 (2014). The district court accepted that
the county’s “authority to discipline its employees for
improper or harmful comments to the press” could bar
5
The content of Brandon’s confidential memoranda to her client
(leaked to the press by someone other than Brandon) obviously could not
constitute citizen speech protected by the First Amendment as these
memoranda were attorney work product that Brandon generated to aid her
client in settling potential legal claims.
14 BRANDON V. MARICOPA COUNTY
Brandon’s First Amendment retaliation claim, but found that
the defendants provided no evidence to show that Brandon’s
statement violated any policy, contained confidential
information, harmed the county, or interfered with her duties
so as to outweigh her First Amendment protections. Connick
v. Myers, 461 U.S. 138, 150–51 (1983). As such, the district
court concluded that “Brandon’s speech was entitled to First
Amendment protection” and declined to overturn the jury’s
conclusion that Brandon was speaking as a citizen.
The error in the district court’s conclusion stemmed from
its failure to undertake the “practical inquiry” required by
Garcetti. Under Arizona law, as an attorney for the county
Brandon had a broad fiduciary duty to her client – the county.
In re Zang, 166 Ariz. 426, 430 (1990) (the “fiduciary duty to
a client [is] the most important ethical duty a lawyer owes”).
See also Restatement (Third) of the Law Governing Lawyers
§ 16 (“To the extent consistent with the lawyer’s other legal
duties and subject to the other provisions of this Restatement,
a lawyer must, in matters within the scope of the
representation: (1) proceed in a manner reasonably calculated
to advance a client’s lawful objectives, as defined by the
client after consultation; (2) act with reasonable competence
and diligence; (3) comply with obligations concerning the
client’s confidences and property, avoid impermissible
conflicting interests, deal honestly with the client, and not
employ advantages arising from the client-lawyer relationship
in a manner adverse to the client; and (4) fulfill valid
contractual obligations to the client.”) (emphasis added). The
scope of this fiduciary duty of loyalty extends broadly.
Matter of Evans, 113 Ariz. 458, 462 (1976) (“An attorney’s
loyalty to his client is not just a casual obligation to be turned
on or off as the dictates of the moment indicate or particular
employment may demand.”); see also In re Piatt, 191 Ariz.
BRANDON V. MARICOPA COUNTY 15
24, 26 (1997) (“A lawyer is a fiduciary with a duty of loyalty,
care, and obedience to the client. The relationship is, and
must be, one of utmost trust.”). Moreover, Arizona’s rules of
professional conduct for lawyers anticipate public statements
made to media outlets to be part of an attorney’s duties
representing a client. See ARIZ. SUP. CT. 42, ER 3.6(a); cf.
Cox Ariz. Publ’ns, Inc. v. Collins, 175 Ariz. 11, 14–15 (1993)
(noting that Arizona’s rules of Professional Conduct for
attorneys permit certain, but not all, interactions with the
media relating to pending cases).
With the legally defined scope of an attorney’s duties in
mind, it becomes obvious that Brandon’s comments to the
newspaper could not constitute constitutionally protected
citizen speech under the principles from Dahlia. First, while
Brandon was not speaking within her chain of command, she
was inevitably speaking as a lawyer representing the county
as her public statements touched on the very matter on which
she represented the county. Second, unlike in Dahlia,
Brandon did not bring up any allegation of corruption or other
serious misconduct in her statement to the newspaper, she
merely suggested that she disagreed with the settlement
figures authorized by the county’s representatives. While the
newspaper article suggested the county paid too much to
protect certain employees from public criticism, Brandon’s
published statement made no such allegation but merely
reflected negatively on her client. That the attorney who
handled the case did not “know why [the client] did what they
did” implies the client was acting without professional advice
when paying the settlement. Brandon’s statement that they
must “have their reasons” cements the implication that the
client was acting unprofessionally. Indeed, if Brandon
alleged any sort of misconduct this would be a different case.
Third, as was expressly recognized by various witnesses at
16 BRANDON V. MARICOPA COUNTY
trial, Brandon’s statements to the Arizona Republic did not
violate any MCAO policy, to the extent applicable, or County
policy, which according to Dahlia is relevant to the analysis
of whether Brandon’s speech was made in an official capacity
735 F.3d at 1075. Taken together, the only possible outcome
of the “practical inquiry” required by Garcetti was that
Brandon’s speech to the Arizona Republic fell under the
broad set of official duties she owed Maricopa County as its
attorney, and so was not constitutionally protected citizen
speech. Unlike the police detective’s statements at issue in
Dahlia, Brandon’s official speech could not be relegated only
to certain times or places but, given the fiduciary duties
imposed by her role as an attorney for the county, extended
to what she said about matters relating to her representation
of Maricopa County. For these reasons, the First Amendment
retaliation verdict must be also reversed.
IV.
Because we remand for the district court to enter
judgment for Appellants, there are no successful claims that
could serve as the basis for a fee award. As such, the district
court’s fee award must be vacated.
REVERSED.