Stella v. Kelley

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

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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:

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[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