Roger Lee v. William Driscoll, 871 F.3d 581

Background

The Lees own land in Mathews Township; flooding destroyed existing culverts under 219th Street and FEMA funds were used for repairs. The Township installed an 8-foot culvert (not the 9-foot the Lees expected) and added a 3-foot culvert and refunded grant money to FEMA.
The Lees publicly criticized the Board’s culvert decisions; Mary Lee (an elected Township Board Clerk) filed an open-meetings complaint and was excluded from several nonpublic Board meetings and denied participation in certain meeting-related functions.
The Lees sued under 42 U.S.C. § 1983 (Fourteenth Amendment due process and equal protection; First Amendment free speech, association, petition, and retaliation) and asserted state-law claims (conversion, deceit, state takings).
The district court granted summary judgment to the Township and official-capacity defendants and on several individual-capacity claims, but denied summary judgment as to: (1) First Amendment retaliation and petition claims against individual defendants; (2) Mary Lee’s First Amendment association claim; and (3) the Lees’ state-law deceit claim.
The individual defendants appealed the denial of qualified immunity on three § 1983 claims (retaliation, association, petition). The Lees cross-appealed several dismissals and grants of summary judgment and sought review under pendent appellate jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
First Amendment retaliation (individual-capacity)	Lees: exclusion from meetings and related acts were retaliation for protected speech and chilled exercise of rights	Defs: actions not sufficiently adverse to chill a person of ordinary firmness; (argued ordinary-firmness only on appeal)	Affirmed denial of qualified immunity (court declined defendant’s unpreserved ordinary-firmness argument)
First Amendment association (Mary Lee, individual-capacity)	Mary Lee: as elected Township Clerk, exclusion from meetings violated her associational right to perform duties	Defs: clerk’s duties are ministerial (not policymaking) and Peeper is distinguishable; no clearly established right to associate in this role	Denied qualified immunity — Peeper applies; right to associate was clearly established enough to survive summary judgment
First Amendment petition (individual-capacity)	Lees: exclusion from meetings and prevention of communicating concerns violated petition right	Defs: no First Amendment right to participate in non-public government meetings	Reversed denial of qualified immunity — no First Amendment right to petition in nonpublic meetings; defendants entitled to qualified immunity on this claim
Cross-appeal: declaratory/injunctive relief, due process, equal protection, free-speech participation claims	Lees: district court erred in dismissing or granting summary judgment on these claims and should allow injunctive/declaratory relief	Defs: those rulings stand; many issues not reviewable on pendent appeal	Only free-speech participation claim intertwined with main appeal was addressed (court affirmed summary judgment rejecting a right to participate in nonpublic meetings); other cross-appeal claims dismissed for lack of jurisdiction

Key Cases Cited

White v. McKinley, 519 F.3d 806 (describing interlocutory qualified-immunity appeal standard)
Wallingford v. Olson, 592 F.3d 888 (two-step qualified-immunity inquiry)
Scheffler v. Molin, 743 F.3d 619 (ordinary-firmness standard for First Amendment retaliation)
Peeper v. Callaway County Ambulance Dist., 122 F.3d 619 (First Amendment association for elected board members)
City of Madison v. Wisc. Emp’t Relations Comm’n, 429 U.S. 167 (public meeting exclusion can violate First Amendment when meetings are open)
Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271 (no First Amendment right to participate in nonpublic government meetings)
Kincade v. City of Blue Springs, 64 F.3d 389 (standards for pendent appellate jurisdiction)
Naucke v. City of Park Hills, 284 F.3d 923 (retaliation injury must chill a person of ordinary firmness)
Eggenberger v. West Albany Township, 820 F.3d 938 (denial of access to public documents did not amount to First Amendment chill)
Garcia v. City of Trenton, 348 F.3d 726 (retaliatory municipal actions with concrete consequences may chill speech)
Anderson v. Creighton, 483 U.S. 635 (qualified immunity protects all but plainly incompetent officials)
Ashcroft v. al-Kidd, 563 U.S. 731 (right must be clearly established to overcome qualified immunity)
Brosseau v. Haugen, 543 U.S. 194 (qualified immunity requires particularized analysis of facts)