138 Wash. 2d 506 | Wash. | 1999
Lead Opinion
— Appellant G. Andrew H. Benjamin seeks direct review of a King County Superior Court partial summary judgment which dismissed his claims that termination of his employment by the Washington State Bar Association violated his free speech rights under both the federal and state constitutions and of a summary judgment granting qualified immunity to Respondent Dennis E Harwick, Executive Director of the Association. We granted review. We affirm.
The questions presented in this case are whether the trial court was correct in dismissing Appellant G. Andrew H. Benjamin’s free speech claims and in granting Respondent Dennis E Harwick qualified immunity on Appellant’s free speech claims.
STATEMENT OF FACTS
On January 16, 1995, Appellant G. Andrew H. Benjamin filed in the King County Superior Court a complaint against Respondents Dennis E Harwick, in his individual capacity, and Rebecca Harwick, his wife.
In his complaint against Respondents Harwick, Appellant claimed his termination as director of the Lawyer Assistance Frogram (LAP)
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
In his complaint against the WSBA, Appellant contended that the WSBA violated article I, section 5 of the Washington Constitution in not supporting a grant proposal he had submitted and in threatening not to accredit a Continuing Legal Education seminar if he participated in it after his termination.
Appellant was hired by the WSBA and on November 10, 1986 was assigned as director of the WSBA’s Lawyer Assistance Program.
Appellant Benjamin in his complaint asserted the LAP achieved “national prominence”
Appellant claimed that on November 5, 1993, the day following the meeting of the Steering Committee, he received from Mr. Harwick an unsatisfactory performance appraisal dated November 4, 1993 and was told he was being ter
Appellant filed two grievances with the WSBA Grievance Committee which unanimously rejected both.
Appellant claimed in addition that, after his termination, the WSBA took retaliatory action against him by refusing to support a grant proposal he had submitted which Mr. Harwick previously had supported before the adverse employment decision.
Appellant Benjamin on January 16, 1995 filed claims in the King County Superior Court against Respondents Harwick and on August 1, 1995 against Respondent WSBA for violation of his free speech rights under 42 U.S.C. § 1983, the First Amendment of the United States Constitution, and article I, section 5 of the Washington Constitution; and
On September 6, 1996, Respondents Harwick and the WSBA moved for partial summary judgment to dismiss Appellant’s free speech claims under the federal and state constitutions and 42 U.S.C. § 1983.
Respondents also contended there was no violation of article I, section 5 of the Washington Constitution because there was no state action either when Mr. Harwick terminated Dr. Benjamin or in the post-termination actions Appellant claims the WSBA took against him as retaliation.
In addition to the motion for partial summary judgment
On November 8, 1996, the King County Superior Court, the Honorable Michael J. Trickey, granted both the motion for partial summary judgment on Appellant’s free speech claims and Respondents Harwick’s supplemental motion for summary judgment under the doctrine of qualified immunity.
In granting Mr. Harwick qualified immunity, the court found that, at the time of Dr. Benjamin’s termination, the law was not “clearly established” that the WSBA was a “public entity for purposes of Benjamin’s termination,” nor was it clearly established that “Dr. Benjamin’s speech
Appellant sought direct review by this court which was initially denied on February 27, 1997 because the trial court’s orders did not dispose of the entire lawsuit.
DISCUSSION
Standard of Review
Under Civil Rule (CR) 56(c), a complaint may be dismissed on a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A dismissal under this rule involves a question of law which is reviewed de novo by an appellate court.
Free Speech
The free speech rights of public employees under
The public employee who claims a constitutional violation of the employee’s free speech rights must demonstrate that the speech in question is entitled to constitutional protection.
Courts employ a four-part inquiry to establish whether there has been a free speech violation:
(1) The court “decides the threshold issue whether the speech involved . . . [is] on a matter of public concern”;56
(2) If the speech is on a matter of public concern, “the court decides whether the employee’s interest in exercising [the employee’s] right to freedom of speech is greater than the interest of the government in promoting efficiency in the public service it performs.”57 “Although the employee has the burden of showing that the speech is on a matter of public concern, courts generally . . . require the employer to demon*518 strate that the discharge . . . was justified because of the employer’s need to promote efficiency in the workplace”;58
(3) If the free speech interests of the public employee outweigh the government’s interest in efficient management, the public employee must show the speech was a substantial motivating factor in the adverse employment of which the employee complains;59 and
(4) If the public employee is able to meet the burden under part (3), then the public employer must demonstrate that the same decision would have been made even without the protected speech.60
While parts (1) and (2) of the inquiry are questions of law, parts (3) and (4) are questions of fact usually left to the finder of fact.
Although there is no bright-line rule for determining what constitutes constitutionally protected speech, courts have nevertheless been given some guidance for balancing employees’ free speech interests against the government’s interests in having an efficient workplace. Factors which may be considered by courts include “whether the statement impairs discipline by superiors or harmony among co-workers, has detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”
In addition, in Binkley v. City of Tacoma this court observed that the employee’s speech is not to be considered “in a vacuum,” but the court must consider whether “ ‘the
Appellant’s argument focuses on the trial court’s determination that, even though Appellant’s speech did involve a matter of public concern, the employer’s interests in an efficient workplace outweighed Appellant’s free speech interests. Appellant contends that Respondents “failed to offer a whit of evidence” on any of the factors courts must consider in balancing the public employee’s interests against the interests of the government.
Because the United States Supreme Court has not drawn a bright-line rule in public employee free speech cases, but instead has developed a balancing test, analysis in public employee free speech cases is fact-sensitive as stated in
Appellant cites Waters v. Churchill in support of the proposition thát predictions of harm through disruption “must” be based upon a “substantial showing that the speech is, in fact, likely to be disruptive.”
[W]e have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large. . . . [W]e have given substantial weight to government employers’ reasonable prediction of disruption, even when the speech involved is on a matter of public concern . . . ,[71]
Appellant contends that “the manner, time and place of Benjamin’s speech suggest no potential for disruption.”
In such a context, it is reasonable for the government employee to expect that certain disagreements, particularly disagreements over revenue-enhancing strategies, might likely have a detrimental effect on close working relationships for which personal loyalty and confidence are necessary. Appellant argues that a showing of actual and significant harm is necessary,
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the*522 employer’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.[81]
Under this standard, it is not unreasonable for a government employer (in this case Mr. Harwick and the WSBA) to believe that opposition by an employee (in this case Dr. Benjamin) to policies to enhance revenues during a time of a financial crisis would interfere with the regular operation of the Association.
Appellant contends that because he reported to the WSBA executive director for administrative matters and to the LAP Steering Committee for programmatic issues, his “duty of confidence or loyalty on programmatic issues ran to the LAP Steering Committee, not to the executive director.”
In determining whether the government employer has demonstrated the need for loyalty and confidentiality from an employee, courts have examined whether the employee is a policy maker. In Dicomes v. State,
This court stated in Dicomes: “[A] public employee’s interest in freedom of speech may be overridden where the State shows a need for political loyalty and confidentiality of its employees who are vested with discretionary authority and policy-making responsibilities.”
Appellant Benjamin’s own declaration that the director of the LAP does not make policy is the only support he provides for his contention that he was not a policy maker.
At least two of the factors outlined in Dicomes are implicated in Dr. Benjamin’s seeking funding for a study of job-related stress in women: procuring funding and conducting studies.
In addition to examining the time, manner and place of the speech in question and whether the speaker is a policy maker, this court in Binkley observed: “Where the employee’s speech is a matter of public concern in only a limited sense, the employer’s burden of justification is lighter.”
In Wilson v. State, the director of a state hospital pharmacy department claimed that his free speech rights had been violated when he was demoted after he made certain comments concerning his superiors’ management.
was not seeking to inform the public that the administration was derelict in serving Hospital patients. Rather, he was justifying his own actions and philosophy and attempting to protect his own position. Although the general topic of quality patient care is one of public import, the connection between that topic and Wilson’s speech is tenuous.[104]
In White v. State, the court concluded that the speech in question (a nurse’s report of suspected abuse of nursing home patients) clearly was connected to a matter of public concern because to find otherwise would be “contrary to the public policy of the state as reflected in RCW 70.124 (abuse of nursing home patients).”
The Wilson and White cases illustrate the difficulties in determining the public significance of an employee’s speech. General Rule (GR) 12(b)(8) gives the WSBA authority to establish a program to help impaired attorneys. That program is not mandated. The administrative detail of determining how much to charge LAP clients is of less public concern than was the speech in White. The evidence in this case supports a conclusion that the speech of the employee, Dr. Benjamin, occurred within the context of a fiscal crisis of the WSBA and that the employee was a policy maker. From this we conclude that the trial court was correct in dismissing the free speech claims of Appellant. There was no constitutional violation when the interests of Appellant, as a public employee, are weighed against the
Qualified Immunity
The doctrine of qualified immunity limits the exposure of public officials to liability for damages under 42 U.S.C. § 1983.
The first step in this analysis is to determine whether a violation of a constitutional right has occurred.
SUMMARY AND CONCLUSIONS
The King County Superior Court on summary judgment dismissed Appellant G. Andrew H. Benjamin’s free speech claims, finding that, while there was state action and that the speech involved a matter of public concern, the employer’s interests in efficient management outweighed the employee’s free speech interests. In addition, the trial court found that Appellant was a “policymaker.” The court granted Respondent Dennis E Harwick qualified immunity, finding that, at the time of the termination, the law was not clearly established that the action constituted state action and that the speech involved a matter of public concern.
An analysis of public employee free speech cases includes a balancing test first announced by the United States Supreme Court in 1968 in Pickering v. Board of Education
Examining the evidence in the light most favorable to the nonmoving party leads us to the determination there is sufficient evidence on the record in this case to conclude that Appellant Benjamin’s exercise of his right to speak
We affirm the judgment of the King County Superior Court which dismissed on summary judgment Appellant G. Andrew H. Benjamin’s complaints against the Washington State Bar Association and Dennis E and Rebecca Harwick.
Guy, C.J., Durham, J., and Dolliver and Brown, JJ. Pro Tern., concur.
Clerk’s Papers at 3 and 8.
Id. at 620 and 626.
Id. at 633-34.
The WSBA Employee Handbook refers to the program as the Lawyer Assistance Program. Clerk’s Papers at 43. It is also referred to in the record as the Lawyers’ Assistance Program.
Clerk’s Papers at 7.
Id. The federal Civil Rights Act of 1871, 42 U.S.C. § 1983, provides a cause of action for damages against any person who, under color of law, subjects another to the deprivation of any right guaranteed under the United States Constitution. Allen K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 10 (1997). In response to southern Black Codes, Congress enacted the Ku Klux Act in which this section originated. The Act was a means to enforce the 14th Amendment. Cristine Kuhn, Note, Between Scylla and Charybdis: Can the Supreme Court Rescue the Inimical Qualified Immunity Doctrine? 43 Drake L. Rev. 681, 683 (1995).
Clerk’s Papers at 623-24.
Id. at 624-25.
Id. at 3. Appellant Benjamin holds a J.D. degree and has been admitted to the Arizona State bar, but not the Washington State bar. Id. at 73. He also holds a Ph.D. degree in clinical psychology. Id. at 340.
Id. at 249.
GR 12(b)(14).
Clerk’s Papers at 341.
Id. at 4.
Id.
Id. at 4.
Id. at 57, 343.
Id. at 58.
The record indicates two different dates for the staff retreat, October 17, 1993 and October 19, 1993. Id. at 4 and 58.
Id. at 58-59. Appellant described the LAP staff meeting as “very acrimonious” and stated that two of three staff supported increasing fees. Id. at 58. Appellant also stated that indigent lawyers made up “a lot” of his case load. Id. at 59.
Id. at 59.
Id. at 47-48, 361A. The comments by Dennis E Harwick in Appellant’s employee performance appraisal are dated November 3, 1993, the day before the Steering Committee meeting. The form shows it was given to Appellant on November 4, 1993. Id. at 361-361A.
Id. at 361A.
Id. at 75-82, 295-300.
Id. at 115.
Id. at 367, 369.
Id. at 185, 193-94.
Id. at 24-25.
Id. at 625, 8.
Id. at 111-32, Defendants’ Mot. for Partial Snmm. J.
Id. at 117.
Id.
Id. at 119.
Id. at 126.
Id. at 129-30.
Id. at 125.
Id. at 83-110.
Id. at 85-87.
Id. at 585, 590, Order Granting Def.’s Mot. for Partial Summ. J.
Id. at 586.
Id. at 587.
Id.
Id.
Id. at 591, Order Granting Defs.’ Harwicks’ Supplemental Mot. for Summ. J.
Ruling Den. Review at 2-3.
Clerk’s Papers at 595.
Br. of Resp’t Washington State Bar Association at 48.
Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979).
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
Appellant claimed protection under the free speech clauses of both the federal and Washington constitutions. The trial court granted defendants’ [Respondents’] motion for partial summary judgment under both the federal and state constitutions. Clerk’s Papers at 587. Appellant stated before this court, however, that he was not asking us to interpret the state constitution “more broadly” than the federal free speech clause. Am. Br. of Appellant at 14 n.6. It is sufficient to confine analysis of the claims against Respondents Harwick to the federal constitution. Appellant Benjamin’s claim against the WSBA rested solely on the free speech clause of the Washington Constitution. Clerk’s Papers at 624. Appellant acknowledged the WSBA could not be sued under 42 U.S.C. § 1983 because it is a state agency, but can he sued under article I, section 5 of the state constitution. Am. Br. of Appellant at 14 n.6. Assertion of more rights under the Washington Constitution than under the federal constitution requires a Gunwall analysis. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 538, 936 P.2d 1123 cert. denied, 522 U.S. 86 (1997). See also Br. of Amicus Curiae Washington Defense Trial Lawyers at 11. Appellant has not provided that analysis. We therefore do not address whether there is an implied cause of action under the free speech clause of the state constitution.
Binkley v. City of Tacoma, 114 Wn.2d 373, 381, 787 P.2d 1366 (1990) (citing Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)). This has not always been the case. For much of the twentieth century, the common understanding was that public employees could not object to restraints placed on the exercise of constitutional rights. “The classic formulation of this position was Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: ‘[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.’ ” Connick v. Myers, 461 U.S. 138, 143-44, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). The understanding shifted in the 1950s and 1960s in the United States Supreme Court’s loyalty oath cases. See Connick, 461 U.S. at 144.
Pickering, 391 U.S. at 568.
James G. Fahey, Notes and Comments, United States v. National Treasury Employees Union; Restrictions on Free Speech of Government Employees and the Re-balancing of Pickering, 15 St. Louis U. Pub. L. Rev. 555, 556 (1996).
Wilson v. State, 84 Wn. App. 332, 340, 929 P.2d 448 (1996), review denied, 131 Wn.2d 1022, 937 P.2d 1103, cert. denied, 522 U.S. 949, 118 S. Ct. 368, 139 L. Ed. 2d 286 (1997).
Dicomes v. State, 113 Wn.2d 612, 624, 782 P.2d 1002 (1989).
White v. State, 131 Wn.2d 1, 13, 929 P.2d 396 (1997).
Id. at 11. See also Binkley, 114 Wn.2d at 382; Connick, 461 U.S. at 147-48. Respondents assign error to the trial court’s threshold findings that termination of Appellant constituted state action and that the speech prompting termination was a matter of public concern. Br. of Resp’t WSBA at 1. Under RAP 2.5(a), a party may raise a claim for “manifest error affecting a constitutional right” for the first time in the appellate court. Because of the conclusions we reach in this case we do not address that assignment of error.
White, 131 Wn.2d at 11 (citing Waters v. Churchill, 511 U.S. 661, 668, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994); Rankin v. McPherson, 483 U.S. 378, 384-85, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987).
White, 131 Wn.2d at 14 (emphasis omitted) (citing Binkley, 114 Wn.2d at 383).
White, 131 Wn.2d at 16. See also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Binkley, 114 Wn.2d at 382.
Binkley, 114 Wn.2d at 382.
Id.
Rankin, 483 U.S. at 388.
114 Wn.2d at 384 (quoting Rankin, 483 U.S. at 388). See also Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415 n.4, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979); Connick, 461 U.S. at 152-53.
James G. Fahey, Notes and Comments, United States v. National Treasury Employees Union; Restrictions of Free Speech of Government Employees and the Rebalancing of Pickering, 15 St. Louis U. Pub. L. Rev. 555, 566-67 (1996).
Am. Br. of Appellant at 20.
Id. at 14.
White, 131 Wn.2d at 15. (Emphasis added.)
391 U.S. at 569. “Balancing tests, like all legal standards, necessitate individualized, context-specific determinations of constitutional rights because the quantum of interests may vary substantially from case to case, even under the same constitutional provision.” Allen K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 45 (1997).
511 U.S: 661, 674, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994). Am. Br. of Appellant at 19.
Waters, 511 U.S. at 674. (Emphasis added.)
71Id. at 673.
Am. Br. of Appellant at 25.
Clerk’s Papers at 216.
Id. at 218.
Id. at 353.
Id.
Id. at 359-60.
Tr. of Hr’g at 19.
Jd.
Am. Br. of Appellant at 22.
81Connick, 461 U.S. at 151-52.
Arn. Br. of Appellant at 22. Appellant argues that the dispute over whether to increase client fees was a programmatic issue. When asked if he considered increasing fees a programmatic issue, Mr. Harwick replied, “I believe that I would consider it a programmatic issue.” Clerk’s Papers at 279.
Clerk’s Papers at 43-44. Section I.F.2 of the WSBA Employee Handbook states: “The Board of Governors employs an Executive Director who is the chief of staff. The Executive Director has full administrative authority, including the authority to set staff/personnel policies, to set salaries, and to employ and terminate staff. The Executive Director’s decision on all definitions and interpretations involving this Employee Handbook shall be final.” Clerk’s Papers at 43. Section I.W states: “Termination may result at any time and for any reason not prohibited by law. Grounds for termination include, but are not limited to, violation of the provisions of the WSBA Employee Handbook, excessive absenteeism, failure to meet required work standards or objectives, dishonesty, disruptive behavior, inability to maintain proper working relationships, exceeding the limits of one’s authority, and conduct prejudicial to the best interests of the WSBA.” Clerk’s Papers at 44.
Id. at 256.
Tr. of Hr’g at 38.
113 Wn.2d 612, 613-14, 782 P.2d 1002 (1989).
Id. at 616.
Id. at 627.
Id. at 626.
Id. at 628.
Am. Br. of Appellant at 23.
Clerk’s Papers at 4.
Id. at 209.
Id. at 418-19. (Emphasis added.)
Id. at 367. In Dr. Benjamin’s 1993 Employee Performance Appraisal, Mr. Harwick mentioned five studies proposed by Dr. Benjamin. Id. at 361A.
Id. at 419-20. The other reason given by the Steering Committee member for the dual reporting responsibility was to protect the confldentialiiy of the LAE Id. at 420.
Binkley v. City of Tacoma, 114 Wn.2d 373, 383, 787 P.2d 1366 (1990).
Id. at 377.
Id. at 382-83.
Id. at 384.
84 Wn. App. 332, 335-36, 929 P.2d 448 (1996), review denied, 131 Wn.2d 1022, 937 P.2d 1103, cert. denied, 522 U.S. 949, 118 S. Ct. 368, 139 L. Ed. 2d 286 (1997).
Id. at 343.
Id. at 343 (citing Meyer v. University of Wash. 105 Wn.2d 847, 851, 719 P.2d 98 (1986)).
104Wilson, 84 Wn. App. at 347.
131 Wn.2d 1, 16, 929 P.2d 396 (1997).
Clerk’s Papers at 384-85, 460 and Reply Br. of Appellant at 19-20.
Allen K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 2, 10 (1997).
Id. at 2.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).
Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991).
391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).
Concurrence Opinion
(concurring) — While I agree -with the majority that Benjamin’s constitutional claim fails as a matter of law, I do not agree the Washington State Bar Association (Bar Association) has met its burden of showing actual or potential disruption. See White v. State, 131 Wn.2d 1, 15, 929 P.2d 396 (1997) (government employer has burden of presenting evidence to show it was justified in restricting the employee’s right to freedom of speech). Instead, I would hold Benjamin’s termination did not violate his First Amendment rights because he was not speaking as a citizen on a matter of public concern. See Connick v. Myers, 461 U.S. 138, 142-43, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983).
The content, form, and context of the statement, as revealed by the whole record, determine whether an employee’s speech addresses a matter of public concern. Connick, 461 U.S. at 147-48; White, 131 Wn.2d at 11. This is a threshold determination to be decided by the court as a matter of law. White, 131 Wn.2d at 11. The employee bears the initial burden of establishing that the speech touches on a matter of public concern. Connick, 461 U.S. at 147; Binkley v. City of Tacoma, 114 Wn.2d 373, 382, 787 P.2d 1366 (1990). If the employee fails to meet this burden, the inquiry ends. Wilson v. State, 84 Wn. App. 332, 341, 929 P.2d 448 (1996).
The fact this court has acknowledged attorney discipline is primarily aimed at protecting the public, In re Discipline of Plumb, 126 Wn.2d 334, 340, 892 P.2d 739 (1995), does not necessarily transform every matter which may tangentially affect attorney discipline into an issue of public concern. Moreover, the question is not whether the LAP itself somehow addresses a matter of concern to the public—such as attorney discipline—but whether Benjamin’s speech does, given its content, form, and context. See Wilson, 84 Wn. App. at 347 (speech that is only tenuously connected to a topic of public concern is not protected). Under the facts presented, I would hold as a matter of law Benjamin’s speech did not address an issue of public concern and is not entitled to First Amendment protections.
I begin by noting, as Benjamin himself admits, that the LAP is not itself a part of the attorney disciplinary process, but is an “adjunct” to it. Indeed, as all parties agree, the Bar Association is not required to offer a counseling program such as the LAP at all, but does so entirely “in its discretion.” GR 12(b)(8) (1995). Nor are lawyers who may be under disciplinary sanctions stemming from various impairments, such as substance abuse or depression, required to take part in the LAP Participation is solely on a voluntary basis. Finally, lawyers “who [are] able to pay competitive rates for therapy [are] typically referred out.”
In addition to the fact the LAP is itself only tangentially connected to lawyer discipline, the context of Benjamin’s speech demonstrates nothing more than an internal disagreement over how the LAP should be funded. In his deposition, Benjamin testified the immediate dispute originated in a private lunch discussion with Dennis Harwick, then executive director of the Bar Association. At that time, Harwick suggested the LAP raise its revenues from approximately $10,000 per year to a “target” of $50,000. Benjamin responded, “that would be impossible to me given the nature of our indigent clients . . . .” Clerk’s Papers at 57. Subsequently, Benjamin invited Harwick to a LAP retreat at which Harwick again broached the topic of raising LAP revenues. According to Benjamin, “once again I expressed my disagreement with the notion of raising a significant amount of revenue from increasing, quote, user fees, unquote, and that is when we were directed to come up with some approaches to raise the money.” Clerk’s Papers at 58.
At a staff meeting the following week, which Benjamin described as “acrimonious,” other members of the LAP staff “felt that lawyers could pay their, quote, fair share, unquote, and I went along with my staff more or less and I said, ‘If you guys really feel like you have clients who can pay more money, by all means.’ ” Clerk’s Papers at 58. Accordingly, Benjamin “reluctantly went along with it” but insisted, “we’ve got to take it to the Steering Committee.” Clerk’s Papers at 59. (According to Benjamin, after the Steering Committee sided with him, Harwick fired him.)
It is clear from the above testimony that Harwick mandated nothing other than that the LAP staff consider ways of raising approximately $40,000 worth of revenue. The majority of Benjamin’s own staff agreed that revenues could be raised without significantly undermining LAP
In sum, the point of Benjamin’s speech was not to expose or even oppose any political, social, or other matter of inherent public concern but to voice his opinion regarding an internal management question of how best to fund a worthwhile, albeit discretionary, Bar Association counseling program—a program which itself is only tenuously connected to the alleged public concern in this case: attorney discipline.
Accordingly, I would hold Benjamin’s termination did not infringe his constitutionally protected interest in freedom •of speech. I would, therefore, dismiss his constitutional claims as a matter of law.
Madsen and Talmadge, JJ., concur with Johnson, J.
Dissenting Opinion
(dissenting) — The majority affirms summary judgment dismissal of Benjamin’s suit, asserting, as a matter of law, his speech finds no protection in the First Amendment. But since Benjamin has alleged violation of his clearly established First Amendment right to speak,
I.
No qualified immunity for violation of a clearly established right
Harwick’s threshold defense is qualified immunity.
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 pre-existing law the unlawfulness must be apparent.
Anderson, 483 U.S. at 640. See also Harris v. Roderick, 126 F.3d 1189, 1203 (9th Cir. 1997) (“[The plaintiff] need not present a factually similar case in order to show that his constitutional rights were clearly established.”); CrawfordEl, 523 U.S. at 590 (“The objective standard, in contrast, raises questions concerning the state of the law at the time of the challenged conduct.”).
In addition to asserting a clearly established right, to survive a claim of qualified immunity a plaintiff must also allege the right asserted has been violated. Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 (1991) (“A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is ‘clearly established’ at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all.”). A claim of qualified immunity requires examination of the facts alleged by the plaintiff, not the facts as they may ultimately be found. Crawford-El, 523 U.S. at 598 (“[to resolve the question of qualified immunity] the court must determine whether, assuming the truth of the plaintiff’s allegations, the official’s conduct violated clearly established law”) (emphasis added).
But the majority erroneously frames the qualified immunity question as “whether a violation of a constitutional right has occurred.” Majority at 527 (emphasis added) (citing Siegert, 500 U.S. at 232). In Siegert the defendant was
Clearly, qualified immunity is appropriate only where assertions of fact by the plaintiff do not rise to the level of a clearly established constitutional violation. E.g., Siegert, 500 U.S. 226 (finding defendant entitled to qualified immunity since plaintiff failed to establish violation of clearly established constitutional right). There is no qualified immunity when: (1) the right asserted was clearly established at the time of the plaintiffs discharge, and (2) the plaintiff factually alleges a violation of that right. Therefore the question to be decided for the purpose of qualified immunity is whether at the time Harwick fired Benjamin it was clearly established his action was unconstitutional based on the facts asserted by Benjamin.
A. The First Amendment right of a public employee to speak on matters of public importance was clearly established before Benjamin’s discharge
The First Amendment right of public employees to speak and be free of workplace retaliation has been “clearly established” for 30 years since Pickering v. Board of Educ.,
To determine if a public employer has violated a public employee’s right to free speech, we employ a 4-step inquiry, each step of which must be satisfied. First, the public employee must establish that his speech dealt with a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684, 1690 (1983); Pickering, [391 U.S.] at 568[, 88 S. Ct. at 1734]. Second, if the speech dealt with a matter of public concern, the public employee must prove that his interest in “commenting upon matters of public concern” is greater than the employer’s interest in “promoting the efficiency of the public services it performs.” Pickering, at 568[, 88 S. Ct. at 1734].[113] Third, the public employee must demonstrate that his speech was a substantial or motivating factor in the adverse employment decision of which he complains. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568, 576 (1977); Hayes v. Chicago, 710 F. Supp. 239, 242 (N.D. Ill. 1989). Finally, if the public employee is able to prove these three elements, the burden shifts to the employer to prove that it would have reached the same decision even in the absence of the employ*537 ee’s protected conduct. Mt. Healthy, [429 U.S.] at 287[, 97 S. Ct. at 576].
Binkley, 114 Wn.2d at 382. The first two steps of this four-part analysis test whether an employee’s speech is protected by the First Amendment and are, therefore, questions of law for this court to resolve. Rankin, 483 U.S. at 386 n.9. Steps three and four, however, are questions of fact to be determined by the fact finder. Binkley, 114 Wn.2d at 382.
Because the contours of the right at issue—in particular the Pickering balancing test—are somewhat fact-specific, it has been argued it would be almost impossible for a public official to know in advance when a proposed act would violate an employee’s rights. See Brewster v. Board of Educ., 149 F.3d 971, 979-80 (9th Cir. 1998); Moran v. Washington, 147 F.3d 839, 847 (9th Cir. 1998). But even this reasoning does not automatically defeat such claims on qualified immunity grounds. Rather, qualified immunity directs the court to evaluate the facts as alleged in the plaintiffs complaint under the “clearly established” standard to determine whether the factual allegations, if proved, amount to a clearly established constitutional violation (step two of the qualified immunity analysis). Indeed the Pickering balancing test itself is “clearly established.” Rankin, 483 U.S. at 386 n.9.
Although balancing an employee’s right to speak against an employer’s interest in an efficient workplace requires an examination of specific facts, the criteria for weighing those facts in balance have been well defined by the courts. See, e.g., Connick, 461 U.S. at 152-53 (stating that the time, place, and manner of employee’s speech is relevant to the Pickering balance); Wright v. Illinois Dep’t of Children & Family Servs., 40 F.3d 1492, 1502 (7th Cir. 1994) (stating that whether the speech impeded the employee’s ability to perform his job responsibilities is relevant to the Pickering balancing test).
Therefore, under the qualified immunity defense as outlined in Harlow and Anderson, the general contours of
The contours of the right of public employees to speak freely under the First Amendment without employment retaliation were therefore clearly established as required by Harlow and Anderson before Harwick discharged Benjamin in 1993.
B. Benjamin alleges facts demonstrating a violation of his clearly established First Amendment rights
To properly allege a violation of his First Amendment rights as a public employee Benjamin must make allegations sufficient to satisfy each of the four prongs of the test outlined in Binkley, 114 Wn.2d at 382.
First, Benjamin must allege his speech dealt with a matter of public concern. Benjamin’s speech related to the method of funding the Washington State Bar Association’s Lawyer Assistance Program (LAP) which is designed to as
Second, Benjamin must allege his speech is more important than his employer’s interest in workplace efficiency. Benjamin alleges it was in fact Benjamin’s role to take issues such as client fees to the LAP Steering Committee (CP at 387) and Harwick concedes in his deposition this was within the scope of Benjamin’s duties. CP at 435. If Benjamin’s free speech activity were part of his job description, the exercise of that duty to speak cannot, absent more, be outweighed by the employer’s interest in efficiency. To the contrary, it is an aspect of efficiency. To remain silent when one is hired to speak defeats job performance, it does not enhance it.
Third, Benjamin must allege his speech was a substantial or motivating factor in the decision to fire him. Benjamin specifically alleges “Harwick decided to terminate Benjamin because of views Benjamin expressed on issues of public concern.” CP at 5. This factor was stipulated by the parties and admitted by the majority. Majority at 515.
The fourth element of the test shifts the burden to the employer to show that it would have reached the same decision even in absence of the protected speech. This element cannot form a basis for qualified immunity because it burdens the employer to prove a factual matter. In any event, Benjamin’s complaint alleges on November 4, 1993, Benjamin told the LAP Steering Committee about his disagreement with Harwick over LAP funding (CP at 4) and that Harwick’s negative performance appraisal firing Benjamin was dated the same day. CP at 5. This connection between Benjamin’s speech and the decision to fire him is
Benjamin therefore properly Alleges a violation of a constitutional right that was clearly established before his discharge. The majority’s suggestion Benjamin fails to overcome qualified immunity is in reality not based on qualified immunity at all but rather upon the majority’s invasion of the jury’s province to weigh disputed facts and inferences.
II.
Summary judgment cannot weigh disputed facts
A determination that a defendant is not entitled to qualified immunity does not by itself mean the “clearly established” constitutional claim against him is factually supported. This is usually a matter for the trier of fact at trial. Summary judgment, however, requires us to view the evidence and inferences therefrom in the light most favorable to the nonmoving party (in this case Benjamin), and then test the plaintiff’s proof against the summary judgment standard set out in CR 56 (“The [summary] judgment sought shall he rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”).
Although the majority correctly states the standard to be applied on summary judgment (Majority at 515), it subverts that standard by concluding “there is sufficient evidence on the record in this case to conclude that Appellant Benjamin’s exercise of his right to speak would likely disrupt the workplace of the Washington Bar Association.” Majority at 528-29 (emphasis added). But weighing the “sufficiency” of the evidence is for the trier of fact, whereas the court’s role on summary judgment is merely to determine if there is any evidence, or inference therefrom, which, if believed, would allow the nonmoving party to prevail.
In effect the majority turns the summary judgment stan
The majority asserts Benjamin’s speech was not protected by the First Amendment because under prong two of the four-part test for identifying the free speech rights of public employees, the Bar Association’s interests in efficiency in the workplace outweigh Benjamin’s free speech interests. Of course any employer has an interest in workplace efficiency, but that does not mean an employee undermines that efficiency by speaking out on matters of public concern.
The majority implicitly concedes not only that the Washington State Bar Association is a governmental entity (and therefore the conduct complained of was under “color of law” as required by 42 U.S.C. § 1983) but also that Benjamin’s speech involved a matter of public concern, satisfying prong one of the four-part test. Indeed the majority seems to regard these propositions as so inherently self-evident that further discussion in its opinion is not merited. While I agree with the majority on these points, I will, however, apply the summary judgment standard to each prong of the four-part test summarized in Binkley.
First, viewing the evidence in the light most favorable to Benjamin, is there evidence to support Benjamin’s claim that his speech dealt with a matter of public concern? Benjamin expressed opposition to a proposed five-fold increase in the level of fees charged by LAE CE at 343.
The concurrence asserts as a matter of law Benjamin’s speech did not pertain to a matter of public concern, despite conceding that attorney discipline is of concern to the public. Concurrence at 530. The concurrence relegates the LAP to a mere “adjunct” to attorney discipline, Concurrence at 530-31, ignoring the description of LAP as “provid[ing] an effective barrier to degradation of services to the point where malpractice, discipline or both, became inevitable.” CP at 364 (WSBA’s Sunset Review Report of LAI^ supra) (emphasis added). It logically follows that if discipline of attorneys who commit malpractice is important to the public interest, then a program that effectively prevents otherwise inevitable attorney malpractice must be at least
The concurrence also asserts “Benjamin’s speech demonstrates nothing more than an internal disagreement over how the LAP should be funded.” Concurrence at 531. But this assumes LAP will have funding and the disagreement was merely about the source of that funding not about the very lifeblood of this essential program. Not so. There is clear evidence in the record the five-fold increase in fees objected to by Benjamin would cause discontinuance of the LAP. CP at 212-13, 217-19, 343. Applying the summary judgment standard we must view the evidence in the light most favorable to the nonmoving party (Benjamin), recognizing there is evidence Benjamin’s speech advocated continuance of the LAP program against a clear threat to its continued existence. This is a matter of public concern and neither the majority nor the concurrence claims otherwise.
When compared to the standard set by other decisions, Benjamin’s speech was clearly of public concern. Rankin v. McPherson, 483 U.S. 378, 380, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987) (holding isolated personal comment by a data-entry employee referring to assassination attempt on the United States President, “If they go for him again, I hope they get him” was a statement addressing a matter of public concern); Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (holding parts of a questionnaire dealing with morale and discipline in the workplace were not matters of public concern); Binkley v. City of Tacoma, 114 Wn.2d 373, 787 P.2d 1366 (1990) (holding an employee’s written criticism of supervisor was of limited public concern). Benjamin’s speech was not concerned with internal office matters like much of the questionnaire in Connick, nor was Benjamin merely dissatisfied with his
Second, viewing the evidence in the light most favorable to Benjamin, is there evidence to show Benjamin’s speech interest was greater than, or at least did not undermine, WSBA’s interest in an efficient workplace? The majority focuses only on this second prong of the test, dismissing Benjamin’s complaint because it concludes as a matter of law the Bar Association’s interest in workplace efficiency “outweighs” Benjamin’s interest in free speech, but without demonstrating how Benjamin’s speech even arguably undermined that “efficiency.” In so concluding, the majority gives “deference” to the Bar Association’s assertions that Benjamin’s speech had the potential to be disruptive to working relationships in light of the Bar Association’s “fiscal crisis.” Majority at 519, 520, 521. This deference is no more than a statement of blatant prejudice in favor of the government party, it undermines the purpose of the Civil Rights Act (42 U.S.C. § 1983),
In Waters v. Churchill, 511 U.S. 661, 674, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994), after noting actual disruption was not necessary for the state to prevail in the Pickering
Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions. And a government employee, like any citizen, may have a strong, legitimate interest in speaking out on public matters. In many such situations the government may have to make a substantial showing that the speech is, in fact, likely to be disruptive before it may be punished.
Waters, 511 U.S. at 674. The inquiry is therefore focused on whether, without dispute of fact, a specified and real threat of disruption justified the termination, not just a claim that such might be the case. Otherwise an employee’s interest in free speech will always be defeated by the state agency which merely raises the specter of disruption, albeit without factual predicate.
Here the Bar Association failed to make even a “substantial showing,” let alone a factually undisputed one, that Benjamin’s speech was likely to disrupt. Although the record references the Bar Association’s “financial crisis,” such a “crisis” is not even arguably due to, or caused by, employee disruption but rather the age old problem of spending more than one earns. Remarks made by Benjamin (e.g., CP at 351, “assuming WSBA does not remain in financial trouble”) do not even tend to demonstrate any disruptive behavior on his part but, to the contrary, demonstrate an acute awareness of financial reality and countervailing demands on scarce resources. It was appropriate, not disruptive, for Benjamin to recommend an allocation of scarce resources: mere disagreement cannot be the equivalent of disruption, especially if the employee’s job description also contemplates an honest rendering of his professional opinion.
The majority asserts Benjamin’s speech was likely to have a “detrimental effect on close working relationships for which personal loyalty and confidence are necessary” and this tips the Pickering balance in favor of the Bar Als
Indeed, construing the record most favorably to Benjamin, there is no evidence to link his speech to any one of the disruptive factors weighing in favor of the state agency for the purposes of the Pickering balancing test. See White v. State, 131 Wn.2d 1, 15, 929 P.2d 396 (1997) (“Relevant factors which may be considered in the balancing analysis include (1) the time, place and manner of the employee’s speech; (2) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (3) whether the employment relationship is one in which personal loyalty and confidence are necessary; and (4) whether the speech impeded the employee’s ability to perform daily responsibilities.”) (citations omitted).
Clearly for the purpose of summary judgment the Pickering balancing test must be resolved in favor of Benjamin
Third, viewing the evidence in the light most favorable to Benjamin, is there evidence to support a finding that Benjamin’s speech was a substantial or motivating factor in the decision to fire him? As discussed in the qualified immunity analysis, Dr. Benjamin’s discharge was made known to him within a day of his report to the LAP Steering Committee, thus raising at least an inference that the two events were related. Furthermore this factor was stipulated to by the parties and admitted by the majority. Majority at 515. Benjamin has no difficulty overcoming this prong of the test on summary judgment.
For the fourth element of the test as set out in Binkley, the burden shifts to the employer to show that it would have reached the same decision despite the protected conduct. There is evidence in the record with which Benjamin could challenge such a showing by WSBA. The budget and audit committee of the WSBA prepared a report favorable to the LAP (CP at 363-65) and in his 1992 performance appraisal Benjamin was rated “outstanding” in almost every category. CP at 350. It was only when Benjamin voiced his objections about the proposed increase in LAP fees that he was given an unsatisfactory performance review. CP at 358.
Viewing the evidence in the light most favorable to Benjamin, it is clear that he has a valid claim against the WSBA and defendant Harwick for violation of his First Amendment rights.
The majority dismisses Benjamin’s claims as not amounting to a First Amendment violation and therefore concludes
Since article I, section 5
Conclusion
Viewing the evidence in the light most favorable to Benjamin, I find ample evidence to satisfy all the elements of the constitutional test as set out in Binkley and would protect Benjamin’s exercise of his constitutional right to speak against violation by the Bar Association and its director. Therefore the summary judgment of dismissal must be reversed and this case should be remanded for trial by the trier of fact, not this appellate court, to determine whether
The majority fails to recognize the nature of qualified immunity as a threshold defense which must be decided at the outset, analyzing the substance of Benjamin’s claim before concluding “[qjualified immunity is not invoked because there is no constitutional violation.” Majority at 528. In structuring its analysis in this manner, the majority employs inverted logic. Qualified immunity is a threshold defense (an immunity from suit) which clearly must be analyzed first.
113Step two shall be referred to as the Pickering balancing test.
Although the concurrence substantively addresses whether Benjamin’s speech was a matter of public concern, it does not dispute that Benjamin alleges his speech is a matter of public concern. Concurrence at 530 (summarizing Benjamin’s argument). The concurrence therefore implicitly agrees Benjamin’s claim survives a qualified immunity analysis.
The purpose of § 1983 is to “ensure that an individual had a cause of action for violations of the Constitution.” Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617, 99 S. Ct. 1905, 60 L. Ed. 2d 508 (1979).
Although Benjamin’s cause of action against Harwick arises under 42 U.S.C. § 1983, Benjamin’s claim against the WSBA for violation of his free speech rights is for violation of article I, section 5 of the state constitution only. CP at 624.
Article I, section 5 states “[ejvery person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.”
In any event, Benjamin does not ask us to interpret the free speech provisions of the state constitution more broadly than the federal constitution. Therefore a Gunwall analysis is unnecessary, State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808, 76 A.L.R.4th 517 (1986).
Many states have recognized that citizens have a remedy for violation of state constitutional rights. E.g., Binette v. Sabo, 244 Conn. 23, 33, 710 A.2d 688 (1998) (holding state constitutional damages remedy exists); Brown v. New York, 89 N.Y.2d 172, 674 N.E.2d 1129 (1996) (holding cause of action to recover dam