UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-6207
CHRISTOPHER JAMES MYLETT, Plaintiff-Appellant,
versus
DAVID M. MULLICAN, ET AL., Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Texas
( May 28, 1993 )
Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.
POLITZ, Chief Judge:
This appeal by Christopher James Mylett poses first amendment
free speech and fourteenth amendment due process questions. For
the reasons assigned we affirm the judgment of the district court.
Background
Mylett was a police officer for the City of Pasadena, Texas.
He was assigned to canine duty and, with permission, frequently
moonlighted at school functions with his drug sniffing dog, Duke,
to locate and apprehend drug violators. When he arrested a fellow officer's son and insisted on pursuing criminal distribution
charges he claims that forces within the department lined up
against him. Tensions escalated when fellow officers made him the
subject of what Mylett claims were baseless criminal charges.1
Without first pursuing grievance procedures or even informing
his superiors, Mylett responded by filing suit against the
officers. The police chief, David Mullican, initiated disciplinary
action against Mylett for not advising his superiors before filing
suit and transferred him to desk duty pending resolution of the
disciplinary proceedings. Mylett was instructed that during this
pendency he was not to take the matter outside of the department,
to either the mayor or the media.
For reasons that remain unclear, one day a local television
news crew arrived unannounced at Mylett's home seeking permission
to film Duke. Mylett testified that he initially refused the
request but eventually acquiesced. Mylett did not speak during the
course of the filming and pointedly explained that he did not
intend to convey any message by allowing the filming. The news
segment ran that evening and dealt exclusively with the police
department's suspension of its use of Mylett's dog and the amusing
fact that Duke was represented by a lawyer. The story ended with
the reporter placing a microphone in front of Duke, posing a
question; Duke cooperatively barked a response.
The next day a former city council member intervened on
1 The charges stemmed from Mylett's supposed refusal to pay for belt buckles.
2 Mylett's behalf during a meeting between the mayor and Mullican.
Mylett was indefinitely suspended for disobeying a direct order.
That decision was reviewed and upheld by the Civil Service
Commission. Mylett unsuccessfully appealed to all three levels of
the state courts of Texas.
Mylett then filed the instant action against Mullican, three
fellow police officers, the members and director of the Civil
Service Commission, and seven members of the city council, invoking
42 U.S.C. §§ 1983 and 1985, alleging conspiracy and violation of
his free speech and due process rights.
The claims against the municipality and Mullican were tried to
a jury; the other defendants were dismissed before trial. At the
close of the evidence the court found Mylett's conduct to be
protected only to the extent it dealt with police department policy
and left to the jury the decision whether the firing was motivated
by this aspect of his appearance. Both sides objected to the form
of the jury submission.2 Although the jury found Mylett was not
fired for exercising free speech rights, the court mooted that
finding and, consequently, annulled any concerns with respect to
its submission, when it later ruled that Mylett's conduct was not
2 Mylett objected to the form of the submission because it required the jury to determine whether some part of his speech was protected before it could answer the question related to causation. See Wilson v. University of Texas Health Center, 973 F.2d 1263 (5th Cir. 1992) (holding that question whether employee speech is protected and concomitant determination whether it touches a matter of public concern are for the court and to be answered with reference to the form, context, and content of the claimed speech as revealed by the record as a whole), cert. denied sub nom. Hurst v. Wilson, 113 S.Ct. 1644 (1993).
3 entitled to first amendment protection.
Mylett timely appeals, contending that his speech was
protected as a matter of law, and that the court erred in its
submissions to the jury, and in dismissing the claims against the
officers and Civil Service Commissioners.
Analysis
A. "Speech" on a matter of public concern.
In order to prevail on his free speech claims, Mylett
initially bore a bifurcated burden.3 He had to show that he
engaged in speech, or at least expressive activity, and that his
"speech" was protected by the first amendment.4 He then had to
3 Dennison v. County of Frederick, Va., 921 F.2d 50 (4th Cir. 1990), cert. denied, 111 S.Ct. 2828 (1991).
4 Obviously, not all speech receives such protection, e.g., Frohwerk v. United States, 249 U.S. 204 (1919) ("[T]he First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language . . . ."), indeed, not all forms of speech receive the full panoply of protections available to others. E.g., Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (D.D.C. 1971), aff'd without op. sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972) (commercial speech).
Speech by a public employee, as an employee, on a matter purely of private concern falls outside the protective radius of the first amendment. Wilson, supra; Caine v. Hardy, 943 F.2d 1406 (1991) (en banc), cert. denied, 112 S.Ct. 1474 (1992). Moreover, in the case of otherwise protected speech by a public employee, an additional question arises: whether the employer's legitimate interest in promoting efficiency in public services outweighs the individual's interest in free speech. Connick v. Myers, 461 U.S. 138, 150 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). The employer bears the burden of production with respect to this last question. Moore v. City of Kilgore, Tex., 877 F.2d 364 (5th Cir.), cert. denied, 493 U.S. 1003 (1989).
4 establish that his exercise of free speech rights was "a
substantial factor" in his firing5 and resulted in damages.6 The
threshold questions are purely legal and unless they are answered
in Mylett's favor the jury is not presented the substantial factor
and damages questions.7
Our review of the record persuades beyond peradventure that
Mylett did not engage in speech, much less protected speech. We
review that issue de novo8 and need look no further than Mylett's
testimony that he had no desire or intent to communicate with
anyone and that he came out of his house and allowed the news crew
to film his dog only because his wife had become agitated by the
presence of the camera crew and curious on-lookers.9
5 Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir. 1991).
6 Carey v. Piphus, 435 U.S. 247 (1978).
7 Coughlin.
8 Fyfe v. Curlee, 902 F.2d 401 (5th Cir.), cert. denied, 498 U.S. 940 (1990).
9 On cross-examination he testified as follows:
Q: Mr. Mylett you were intending to speak out that day about the situation regarding you and your dog? You participated with the TV station for the purpose of doing that didn't you? A: I appeared on TV to get the TV people off my property and allow them to get what they wanted.
5 It is obvious that Chief Mullican opted to keep Mylett on a
very short leash while the disciplinary proceedings were pending.
Reasonable minds could easily find that his firing was
inappropriate to the point of being draconian. Having concluded,
however, that no protected speech was implicated, our inquiry on
this point must end.10
B. Claims against members and employees of the Civil Service Commission.
Mylett sued Charles Beckman, Leon Phillips, and Wayne Taylor,
all members of the Pasadena Civil Service Commission, in their
individual and official capacities. He asserts that Mullican met
with each member before the hearing to persuade them to uphold the
termination decision. He also asserts that Bill Storey, Director
of the Civil Service Commission, intentionally deprived him of the
testimony of a witness by causing a subpoena to issue with an
incorrect date. Mylett sought compensatory and punitive damages
from the three Commissioners and Storey. The district court, as
noted, dismissed those claims before trial. We review that
Q: Is that really the only reason why you did it, Mr. Mylett? A: To get rid of them? Q: Yes, sir. A: Yeah. It was pretty much creating a crowd in front of my home and making my wife upset.
10 Connick, 461 U.S. at 146 ("Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service" are not properly the subject of federal judicial review.); Coughlin, supra. We stress that our review is limited to those questions raised below and asserted as error in this court, in this instance, the impairment of free speech rights.
6 decision de novo. We must first examine the Commission's
structure.
1. The statutory framework
Chapter 143 of the Texas Local Government Code authorizes
municipalities with populations of 10,000 or more to establish a
Civil Service Commission to supervise police and fire fighter
hiring, promotion, and retention.11 The City of Pasadena adopted
Chapter 143 by general election. The Commission is composed of
three persons, appointed by the chief executive of the municipality
and confirmed by the governing body.12 The members serve staggered
terms and can be removed only for misconduct. They may be
suspended only if charged with a crime of moral turpitude and no
one may be appointed who has held public office within the
preceding three years.
The Commission has the authority to adopt its own rules of
procedure and rules governing the hiring of police officers.13 It
must adopt rules that prescribe removal for cause which comply with
the grounds for removal listed in Chapter 143, including "violation
of an applicable . . . police department rule or special order."14
The Commission must publish its rules and make them available on
11 Tex. Loc. Gov't Code Ann. § 143.002 (Vernon 1988).
12 Id. at § 143.006.
13 Id. at § 143.008.
14 Id. at § 143.051(12).
7 demand.
Of particular present relevance, the Commission is vested with
adjudicative powers being, inter alia, solely responsible for
determining fact questions pertaining to claims of misconduct. In
so doing, the Commission is clothed with all of the procedural
trappings typically associated with a common-law finder of fact.
It may compel and hear relevant testimony,15 administer oaths with
the same force as a magistrate judge,16 cause the deposition of
witnesses in accordance with procedures applicable in federal
district court,17 make findings of fact,18 and conclude whether, in
a given case, discipline, including termination, is in order.19 Any
judgment rendered by the Commission is subject to de novo appellate
review in the state district court.20 In essence, its composition
and functions are very similar to those of a federal agency
15 Id. at § 143.009(b).
16 Id.
17 Id.
18 Id. at § 143.053.
19 Id. at § 143.010(g); Connor v. Klevenhagen, 726 S.W.2d 205 (Tex.App. -- Houston [14th Dist.] 1987, writ ref'd n.r.e.) (finding the Civil Service Commission a quasi-judicial body and also finding no need to join it as a party to an appeal).
20 Tex. Loc. Gov't Code Ann. § 143.015 (Vernon 1988).
8 delegated both rulemaking and adjudicative powers.21
Chapter 143 directs the Commission's fact-finding process.
For instance, the chief of police must inform the officer in
writing of the factual basis for any disciplinary action and must
inform the Commission within 120 hours of the disciplining of any
officer.22 The Commission must thereafter hold a hearing.23 During
this hearing the Commission may not answer pure questions of law24
and may only consider those factual issues detailed in the chief's
original letter;25 no amendments are allowed. The Commission may
consider only the evidence presented at the hearing26 and must
render its decision in open session within 30 days of the officer's
21 See James R. Eissinger, Judicial Review of Findings of Fact in Contested Cases Under APTRA, 42 Baylor L.Rev. 1 (1989) (noting Texas courts review judgments of the Commission for substantial evidence despite statutory direction for trial de novo); Firemen's & Policemen's Civ. Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953 (Tex. 1984) (discussing limited nature of review of police officer's appeal from adverse Commission ruling and reviewing it under traditional principles of administrative law).
22 Tex. Loc. Gov't Code Ann. § 143.052 (Vernon 1988).
23 Id. at § 143.053.
24 City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex.Civ.App. -- Fort Worth 1975, writ ref'd n.r.e.).
25 Tex. Loc. Gov't Code Ann. § 143.053 (Vernon 1988).
26 Id. at § 143.010.
9 notice of appeal.27 The officer has a right to be represented by
counsel at this hearing, to cross-examine witnesses,28 and to have
witnesses placed under "the rule."29 Should the officer prevail on
appeal attorney's fees may be awarded.30
Of particular note, Chapter 143 safeguards against the very
abuse alleged here, ex parte contact.31 Section 143.102 prohibits
such contact and provides for automatic judgment in favor of the
non-offending party. Mylett did not secure this relief in his trip
through the entire Texas court system. We must now resolve whether
quasi-judicial immunity precludes advancing those same claims under
federal law.
2. Judicial and quasi-judicial immunity
Section 1983 of 42 U.S.C. embraces traditional notions of
immunity;32 so does section 1985.33 It is generally understood that
27 Id. at § 143.053. The Commission must make specific, written findings of fact, signed by each Commissioner and kept on file for public inspection. Id. at § 143.011.
28 Richardson v. City of Pasadena, 513 S.W.2d 1 (Tex. 1974).
29 Id. at § 143.010. See Tex.R.Civ.Evid. 614.
30 Tex. Loc. Gov't Code Ann. § 143.015(c) (Vernon 1988).
31 See also Richardson, supra (applying identical requirement pursuant to due process guarantee).
32 Wyatt v. Cole, 112 S.Ct. 1827 (1992).
33 Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), cert. denied, 383 U.S. 913 (1966).
10 a judge, and those similarly situated, have absolute immunity for
judicial acts.34 The role and duties of a "judge" cannot always be
neatly compartmentalized; not all acts by one bearing that title
are judicial,35 nor are all judicial acts deserving of the immunity
granted exclusively to judges.36
Advances in dispute resolution have spread adjudicative
responsibilities more widely37 while the judiciary lends itself at
the same time to a broader range of responsibilities traditionally
considered executive or legislative in nature.38 Mindful of the
priority of substance over form, we must resolve whether Texas
Civil Service Commissioners are entitled to absolute immunity
against charges of corruption stemming from their decision in a
termination proceeding. That question is res nova for this court.
34 Pierson v. Ray, 386 U.S. 547 (1967).
35 E.g., Forrester v. White, 484 U.S. 219 (1988); Harper v. Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816 (1981).
36 E.g., Mullis v. United States Bankruptcy Court, 828 F.2d 1385, 1390 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988) ("Court clerks have absolute quasi-judicial immunity from damages for civil rights violations when they perform tasks that are an integral part of the judicial process.").
37 E.g., Commodity Futures Comm'n v. Schor, 478 U.S. 833 (1986).
38 E.g., Mistretta v. United States, 488 U.S. 361 (1989). This experience is not limited to the federal system. See Markham v. Clark, 978 F.2d 993 (7th Cir. 1992).
11 When determining whether a state governmental officer is
entitled to absolute immunity we examine the character of the
officer's duties and the relationship to the parties.39 If the
officer's duties are of a judicial nature40 we must then weigh the
costs and benefits of denying or affording absolute immunity. Our
analysis is informed by reference to the following factors:
(a) the need to assure that the individual defendant can perform
his functions without harassment or intimidation; (b) the presence
of safeguards that reduce the need for private damages as a means
of controlling unconstitutional conduct; (c) insulation from
political influence; (d) the importance of precedent; (e) the
adversary nature of the process; (f) the correctability of error on
appeal.41 No one factor is controlling and the list of
considerations is not intended to be exclusive.42 After considering
39 Stump v. Sparkman, 435 U.S. 349 (1978).
40 We think the answer to this question is obvious. Texas courts recognize the judicial nature of the Commission's fact-finding mission. See Vick v. City of Waco, 614 S.W.2d 861 (Tex.Civ.App. -- Waco 1981, writ ref'd n.r.e.). Our review above of the makeup of the Commission and of the record in this case confirms that this view is consistent with federal law. The Supreme Court has noted that "[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist." Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226 (1908). The essential question before us is whether, as a matter of sound policy, the Commissioners should be afforded absolute or qualified immunity.
41 Cleavinger v. Saxner, 474 U.S. 193 (1985).
42 Id. at 202.
12 these factors and the Commission's role in this case, we conclude
and hold that the individual Commissioners are entitled to absolute
immunity for the performance of their official duties.
The Supreme Court's decision in Butz v. Economou43 is
instructive. There the Court emphasized that the judicial process,
by its nature, inexorably leaves one party willing to "accept
anything but the soundness of the decision in explanation of the
action of the judge"44 and applied absolute immunity to federal
administrative officers and hearing examiners, likening their
responsibilities to those of a judge. The Court noted that, as
here, extensive safeguards checked against the likelihood of
unconstitutional excesses.
Citing concerns about the lack of independence of prison
officials charged with reviewing disciplinary claims in Cleavinger
v. Saxner and school board members who reviewed student violations
of school regulations in Wood v. Strickland,45 the Supreme Court
refused to extend absolute immunity. Unlike those officials, the
Commissioners herein serve in a politically protected capacity and
their actions are constrained in detail by their enabling statute.
We hold that, on balance, absolute immunity best serves the
efficacy of the Commission's adjudicatory function. Our conclusion
43 438 U.S. 478 (1978).
44 Id. at 509 (citing Bradley v. Fisher, 13 Wall. 335, 348 (1872)).
45 420 U.S. 300 (1975).
13 accords with rationales of decisions by other courts.46
The current state of the record does not permit consideration
of whether Storey's act of preparing a subpoena is entitled to
absolute immunity.47 As an employee of the Commission that act,
however, is entitled at least to qualified immunity.48 The bare
allegation almost five years after filing suit that Storey
intentionally misdated a subpoena so as to deny Mylett the benefit
of testimony is insufficient to overcome qualified immunity.49
C. Claims against the officers.
Mylett's claims against three police officers under 42 U.S.C.
§ 1983 for denial of due process and § 1985 for conspiracy need not
long detain us. We agree with the district court's conclusion that
Mylett failed to assert a cognizable class-based animus to support
a claim under section 1985 and failed to establish an enforceable
46 E.g., Brown v. Griesenauer, 970 F.2d 431 (8th Cir. 1992) (finding alderman absolutely immune from civil liability for having impeached a mayor for misconduct); Lentsch v. Marshall, 741 F.2d 301 (10th Cir. 1984) (providing absolute immunity to a witness in a hearing before a Civil Service Commission and noting the judicial nature of the proceedings); Hollowell v. Gravett, 703 F.Supp. 761 (E.D.Ark. 1988) (attorney practicing before the Civil Service Commission); Burton v. Peartree, 326 F.Supp. 755 (E.D.Pa. 1971) (Federal Civil Service Commissioner).
47 Williams v. Wood, 612 F.2d 982 (5th Cir. 1980) (immunity of court personnel varies depending on whether they are acting pursuant to a court decree or under explicit direction of the judge).
48 Id.
49 Mitchell v. Forsyth, 472 U.S. 511, 526-28 (1985).
14 property interest as against these defendants.
The judgment of the district court is, in all respects,
AFFIRMED.