Collinson v. Gott

895 F.2d 994, 1990 WL 11044

Opinions

PER CURIAM:

This case presents novel and important constitutional issues growing out of a citizen’s claim that his first amendment rights were violated when the president of a board of county commissioners ruled him out of order while he was addressing a called public meeting and then had him evicted.

In Joseph Collinson’s action under 42 U.S.C. § 1983 against John M. Gott, President of the Board of Commissioners, the Calvert County, Maryland, Board of Commissioners, and Edward Bowen and Patrick Nutter, police officers who carried out Gott’s eviction order, the district court denied Collinson’s motion for summary judgment; denied the motions of Gott and the Board, respectively, for summary judgment; denied Gott’s motion to dismiss Col-linson’s claim for punitive damages; and granted summary judgment by reason of qualified immunity to the police officers, Bowen and Nutter.

I

The case is before this court on the appeals of Gott and the Board, and the cross-appeal of Collinson from those parts of the judgment severally unfavorable to them.

This ease arose out of a public meeting called to discuss a proposed reorganization of the county government of Calvert County, Maryland. Various proposals for reorganization became an important issue in the fall 1986 Calvert County Board of Commissioners election campaign. Shortly after the election, the Board began to consider specific plans for reorganization. In mid-winter, the Board announced that it would hold a public hearing on the reorganization issue on March 10, 1987, at 11:15 AM.

Collinson, who professed a “long-standing interest in the affairs of the government of ... Calvert County,” attended the meeting for the purpose of expressing his views on the proposed reorganization plans. Before the meeting began, Gott, the President of the Board, announced that members of the public wishing to address the Board must sign up on a master list, and that each speaker would have two minutes to make his remarks. Gott claims that he also warned that remarks should be confined to the reorganization question, and that speakers would be required to “avoid discussion of personalities.”

Footnotes

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* Col-linson signed the list and was scheduled to speak second. He now claims that he intended to address three separate issues: (1) the impropriety of an unnamed commissioner’s earlier expression of a firm position on the reorganization, which Collinson thought suggested a certain futility to conducting a public hearing; (2) the desirability of hiring an expert to study the reorganization question; and (3) the desirability of organizing the new county government such that the division of inspections and permits would become a part of the engineering department.

It is undisputed that Gott was extremely apprehensive about the public hearing, in part at least because sometime before the hearing he received an anonymous telephone call in which he was told that “if [he] knew what was good for him, and if he wanted to stay involved in local politics, he should change his position on abolishing the county’s department of human resources” — an element of the proposed reorganization plan. Gott understood the call to be a threat. With the Board’s consent, Gott asked the county sheriff’s department to provide several deputies at the hearing to act as a stabilizing element and to provide security. Between 125 and 150 persons attended the meeting, and Gott was fearful that, in light of passions provoked in the local community over the reorganization issue, the hearing might become disorderly. While the parties dispute the matter, Gott claims, without any direct refutation, that he was particularly concerned about possible disruptions by the supporters of a Mr. Trammer, then the county director of human resources, whose position would be eliminated under the reorganization plan.

As scheduled, Collinson was the second member of the public to speak at the hearing. The following exchange between Col-linson and Gott then occurred:

GOTT [to previous speaker]: Thank you. I felt the same way the night the League — next is Joe Collinson. Is that right, Joe?

COLLINSON: That’s right honorable Chairman, honorable members of the Board of County Commissioners. It is a pleasure to speak here and what I would like to say most is that I was sorry to read in the paper about one Commissioner already making up his mind in his answers to Mr. Roberts. That was in very poor taste, and really, I hope he decides—

GOTT: Mr. Collinson, I’m going to call you out of order. This public hearing is for the reorganization of Calvert County and not to respond—

COLLINSON: Well this was the reorganization that he was quoted on and said that he was in favor of before it even came out.

GOTT: That has nothing to do with the reorganization. Mr. Collinson, I’m calling you out of order.

COLLINSON: Now, don’t count my time now.

GOTT: You’re out of order Mr. Collin-son.

COLLINSON: Alright, on Inspections and Permits, you’ve got—

GOTT: I’ll ask the Deputy to remove Mr. Collinson, please.

COLLINSON: —that under Planning and Zoning, and that is like the fox watching the chicken house. Inspections and Permits should be a department in itself. You take money in, and it shouldn’t be under Planning and Zoning. Gentlemen, this is a nice public hearing. GOTT: The next speaker will be Mr. John O’Meara.

COLLINSON: Thank you, I don’t have more to say.

During this exchange sheriff’s deputy Patrick Nutter, following Gott’s direction, approached Collinson, lightly touched him on the arm and told him that he would have to leave. Collinson complied and left the hearing room, escorted by Nutter. Collin-son was not arrested, and the parties agree that he acted peacefully. The whole episode lasted less than a minute. The meeting continued. Twenty-one more speakers, expressing various viewpoints, some in line with those Collinson claims he would have expressed, were heard. Gott ruled several more speakers out of order on various points, but evicted no others. The meeting lasted about an hour in all.

Collinson later brought this § 1983 action against Gott, the Board, Nutter, and Edward Bowen, another sheriff’s deputy present at the hearing, seeking damages for an alleged violation of his first amendment rights in connection with the March 10 incident. After fairly extensive discovery, the parties filed cross-motions for summary judgment; the district court ruled as previously indicated; and these appeals and cross-appeals followed.

II

Because of divisions within the panel, it has not been possible for a majority of the panel to join in a single opinion on all issues. Separate opinions reflecting the points of division follow this per curiam opinion.

In summary, on the issue of Gott’s entitlement to summary judgment by reason of official immunity to suit, Judge Phillips and Judge Wilkinson agree that he is so entitled, but Judge Phillips would so hold on the basis of qualified immunity, Judge Wilkinson on the basis of absolute immunity, while Judge Butzner, dissenting, would hold Gott not entitled to immunity by summary judgment. On the issue of the entitlement of the Board and officers Bowen and Nutter, respectively, to summary judgment, the panel is unanimously agreed that each is so entitled: the officers, on the basis of qualified immunity; the Board, on the merits. On the issue of Collinson’s claim for punitive damages, Judge Phillips and Judge Wilkinson agree that because all defendants are, in their view, entitled to summary judgments, the issue of Collinson’s specific entitlement to punitive damages has become moot and should be dismissed, while Judge Butzner, dissenting, would hold that the district court properly refused to dismiss the claim as against Gott.

Accordingly, the judgment of the court is as follows. The denial of Gott’s motion for summary judgment by reason of immunity is reversed. The denial of the Board’s motion for summary judgment is reversed. The grants of summary judgment by reason of qualified immunity to officers Bowen and Nutter, respectively, are affirmed. The denial of Gott’s motion to dismiss Col-linson’s claim for punitive damages is vacated as moot and the claim is dismissed.

IT IS SO ORDERED.

This is disputed. The transcript of the hearing showed no such statement by Gott; the official minutes indicated that such a statement was made at some time. Confronted with the transcript, Gott continued to assert that he had made the statement, and asserted that in this and other respects the transcript failed to include everything said by him and others at the meeting. Gott’s counsel conceded that for purposes of the summary judgment motion, this fact is in genuine issue.