USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1223
CHARLES STELLA, ET AL.,
Plaintiffs, Appellees,
v.
JOHN J. KELLEY, JR., ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, Senior U.S. District Judge]
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Before
Selya, Cyr and Lynch,
Circuit Judges.
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Richard E. Brody, with whom Thomas M. Elcock and Morrison,
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Mahoney & Miller were on brief, for appellants.
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Harvey A. Schwartz, with whom Schwartz, Shaw & Griffith was
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on brief, for appellees.
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August 23, 1995
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SELYA, Circuit Judge. This appeal, which requires us
SELYA, Circuit Judge.
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to apply the teachings of Johnson v. Jones, 115 S. Ct. 2151
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(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
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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
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Stella v. Town of Tewksbury, 4 F.3d 53 (1st Cir. 1993). We
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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
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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
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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.
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Fitzgerald, 457 U.S. 800, 818-19 (1982); Buenrostro v. Collazo,
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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.
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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
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omitted); see also Crooker v. Metallo, 5 F.3d 583, 585 (1st Cir.
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1993); Rodi v. Ventetuolo, 941 F.2d 22, 30 (1st Cir. 1991). We
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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.
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Colon, 54 F.3d 980, 988 (1st Cir. 1995).
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B
B
The qualified immunity defense is, in part, an immunity
from trial as well as an immunity from damage awards. See
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Siegert v. Gilley, 500 U.S. 226, 232 (1991). Thus, the defense
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may be asserted by a pretrial motion and, if the motion is
rejected, immediate appellate review is sometimes available. See
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Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
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In Johnson v. Jones, the Supreme Court cast new light
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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
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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
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4Prior to the Court's decision in Johnson, several courts of
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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
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Johnson, 115 S. Ct. at 2154 (delineating the division in the
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circuits and citing representative cases).
6
law, notwithstanding the absence of a final judgment. See id. at
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2158; Mitchell, 472 U.S. at 530. On the other hand, a district
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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
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situation, the movant must await the entry of final judgment
before appealing the adverse ruling. See id.; see also 28 U.S.C.
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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.
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Campbell, 863 F.2d 124, 132 (1st Cir. 1988) (determining that
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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
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longer good law.5
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5The law sometimes moves in strange and mysterious ways.
Our decision in Unwin resolved an apparent conflict between two
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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
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Colon, 824 F.2d 139, 141 (1st Cir. 1987), and those that deemed
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the exercise of jurisdiction over such issues to be proper, see,
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7
C
C
The threshold question for our consideration is whether
Johnson applies retroactively to cases pending on direct appeal
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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.
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In this case, Johnson requires that we parse the
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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
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City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).
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Under the Mt. Healthy paradigm, the plaintiff must show both that
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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
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requirements, the burden of persuasion shifts, and the defendant
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e.g., Emery v. Holmes, 824 F.2d 143, 147 (1st Cir. 1987). Having
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come full circle, we now reinstate Roure as the law of the
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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.
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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.
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Healthy test provides an excellent example of the newly stated
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limits on appellate jurisdiction in respect to interlocutory
appeals from pretrial orders rejecting qualified immunity
9
defenses. Under Johnson, we have jurisdiction to inquire into
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the first of the selectmen's challenges, that is, to examine the
existence vel non of a constitutionally protected right. See
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Johnson, 115 S. Ct. at 2158. But we lack the power to inquire
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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.
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The initial question under Mt. Healthy asks whether a
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constitutionally protected right is in play at all. This is
essentially a legal, not a factual, inquiry. See Wright v.
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Illinois Dep't of Children & Family Servs., 40 F.3d 1492, 1498-99
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(7th Cir. 1994); Williams v. Kentucky, 24 F.3d 1526, 1532 (6th
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Cir.), cert. denied, 115 S. Ct. 358 (1994). As the query is
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framed, the answer to it does not depend upon whose account of
the facts is correct. Thus, Johnson which permits immediate
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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
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Johnson, 115 S. Ct. at 2158; Mitchell, 472 U.S. at 528. Since
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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.
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denied, 493 U.S. 976 (1989). In Miller, a section 1983 case, the
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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
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selectmen attempted to justify the ouster on grounds of neglect
and inefficiency. See id. at 528. Following a jury
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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,
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that the votes cast by the plaintiffs did not comprise
constitutionally protected speech. See id. at 532-33. We
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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
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members of a public agency may not be removed from office for
voting contrary to the wishes of the Board of Selectmen." Id. at
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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
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6Indeed, we reached this precise conclusion in Miller:
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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
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satisfied Mt. Healthy's first prong. See Rankin v. McPherson,
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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)
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(similar).
E
E
The selectmen labor to distinguish Miller in three
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ways, but to no avail. First, they posit that Miller involved
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the removal of elected officials whereas this case involves the
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removal of appointed officials. This is a distinction without a
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difference. The selectmen have offered no plausible rationale
for variable treatment, and no language in Miller supports the
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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,
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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,
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Miller, 878 F.2d at 534 (citations omitted).
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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,
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relatedly, the district court rejected this argument on fact-
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based grounds; since Johnson precludes us from inquiring into
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factual controversies on an interlocutory appeal, see Johnson,
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7This argument uses as a vaulting pole a footnote in Miller,
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878 F.2d at 533 n.14, in which Judge Bownes quoted United States
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v. City of Yonkers, 856 F.2d 444, 457 (2d Cir. 1988) (subsequent
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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
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case involved members of a city council who refused to cast votes
necessary to effectuate a federal court decree. See id. at 452.
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The recalcitrant council members tried to raise the First
Amendment as a shield against the federal court's order. See id.
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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
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situation in Yonkers has no known parallel in Tewksbury.
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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.
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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
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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
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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
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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
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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
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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
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appellate review of such "evidentiary insufficiency" claims. See
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Johnson, 115 S. Ct. at 2159 (holding that "a defendant, entitled
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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
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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.
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8We see no anomaly in our determination that one facet of
the defendants' appeal passes Johnson muster though the other
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facet does not. Indeed, the Court anticipated that such
schismatic situations would develop. See Johnson, 115 S. Ct. at
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2159.
17