Christy Peter MIHOS, Plaintiff, Appellee/Cross-Appellant,
v.
Jane SWIFT, Individually and in her Official Capacity as the Acting Governor of the Commonwealth of Massachusetts, Defendant, Appellant/Cross-Appellee, and
William F. Galvin, in his Official Capacity as Secretary of the Commonwealth of Massachusetts, Defendant.
No. 02-2521.
No. 03-1038.
No. 03-1090.
United States Court of Appeals, First Circuit.
Heard September 11, 2003.
Decided February 13, 2004.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Thomas A. Barnico, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, and David R. Kerrigan, Assistant Attorney General, was on brief, for appellant.
Harvey A. Schwartz, with whom Laurie Frankl and Rodgers, Powers & Schwartz LLP were on brief, for appellee.
Before TORRUELLA and LIPEZ, Circuit Judges, and William W. SCHWARZER,* Senior U.S. District Judge.
LIPEZ, Circuit Judge.
In 2002, then-Acting Governor Jane Swift fired Christy Peter Mihos and Jordan Levy from their positions as members of the Massachusetts Turnpike Authority after both men cast votes on the timing of certain toll increases on roads and tunnels in Massachusetts. In this action, Mihos brought suit against Swift under the First and Fourteenth Amendments and 42 U.S.C. § 1983, alleging that Swift violated his First Amendment rights by removing him in retaliation for voting against her wishes on the toll increases. Swift filed a motion to dismiss, raising the defense of qualified immunity.
Although the pleadings never advanced beyond Swift's motion to dismiss, the district court issued two rulings in this case, see Mihos v. Swift,
(1) Plaintiff, Christy Peter Mihos, is awarded the following declaratory relief: It is hereby declared that Acting Governor Jane M. Swift, acting in her official capacity, violated his legally protected rights by retaliating against him for his voting, in his official capacity as Massachusetts Turnpike Commissioner, contrary to her communicated wishes.
(2) All claims of Mihos for damages and for any other form of relief beyond that allowed in paragraph (1) of this judgment are DISMISSED WITH PREJUDICE.
Mihos II,
Swift appeals the court's denial of her motion to dismiss in Mihos I and the declaratory judgment entered against her in Mihos II. Mihos appeals the ruling denying his claims for damages.1 For the reasons set forth herein, we affirm the denial of the motion to dismiss, vacate the declaratory judgment and the denial of damages, and remand for further proceedings.
I.
This case comes to us with two lengthy state court opinions and two district court opinions already filed. See Levy v. The Acting Governor,
A. Background
Governor Paul Cellucci appointed Christy Peter Mihos to the Massachusetts Turnpike Authority in December 1998 to fulfill the unexpired term of a departing member. In July 1999, Governor Cellucci reappointed Mihos to the Turnpike Authority to a full eight-year term. In May 2000, Mihos was elected vice-chairman of the Turnpike Authority.
The Turnpike Authority is "a body politic and corporate" and "a public instrumentality" authorized to operate the Massachusetts Turnpike and certain other roads known as the Metropolitan Highway System, including the Massachusetts Turnpike, its extension into Boston, and the tunnels under Boston Harbor (the Sumner Tunnel, the Callahan Tunnel, and the Ted Williams Tunnel). Mass. Gen. Laws ch. 81A, §§ 1, 3. Three members, each of whom is appointed by the Governor, comprise the Turnpike Authority, and a two member quorum is required to conduct business. Id. at § 2. Through agreements with the Massachusetts Highway Department, the Turnpike Authority is responsible for certain aspects of the design and construction of the Central Artery/Tunnel Project, commonly known as "the Big Dig." Additionally, the Turnpike Authority bears sole responsibility for establishing tolls for the Turnpike, the Boston Harbor tunnel crossings, and the Metropolitan Highway System.
This toll-setting responsibility gave rise to the dispute between Mihos and Swift. The Executive Office of Transportation and Construction, the Turnpike Authority, and Governor Cellucci reached a consensus in late 1996 or early 1997 that tolls should be raised in 1997 and again in January 2002. In April 2001, then-Lieutenant Governor Swift took office as Acting Governor when Cellucci departed to accept an ambassadorial posting. During the latter part of 2001, Mihos and Levy became concerned about the proposals to implement toll increases on portions of the Massachusetts Turnpike in January 2002. Following investigations of the financial impact of the proposed toll increase, including consulting with attorneys, financial experts, and bond counsel for the Authority, Mihos and Levy concluded that the toll increase was neither necessary as a matter of law nor in the best interests of the Turnpike Authority. Swift, however, supported the January 2002 increase.
On October 30, 2001, the three Turnpike Authority members met. A motion to raise the tolls in January 2002 failed for want of a second. Subsequently, a motion to increase the tolls in July 2002 was made, seconded, and passed in a 2-1 vote, with Mihos and Levy in favor. Swift delivered letters to Mihos and Levy dated November 16, 2001, notifying them that she was removing them from their positions as members of the Turnpike Authority.
B. The State Court Proceedings
Following receipt of those letters, Mihos and Levy filed a verified complaint in the Supreme Judicial Court of Massachusetts seeking, inter alia, declaratory relief that Swift lacked authority to remove members of the Turnpike Authority. The Supreme Judicial Court (SJC) rejected that argument and ruled instead that Mass. Gen. Laws ch. 30, § 9 "confers on the Acting Governor the power to remove a member of the Massachusetts Turnpike Authority in accordance with the terms of that statute." Levy I,
After this ruling, Swift conducted hearings to determine whether she would remove Mihos and Levy from their positions on the Turnpike Authority for cause. By letter dated February 6, 2002, Swift notified Mihos and Levy that she was removing them from office, asserting that the principal cause for removal was the fiscal irresponsibility of their votes at the October 30, 2001 meeting. Mihos and Levy again sought review, in the nature of certiorari, under Mass. Gen. Laws ch. 249, § 4, in county court. A single justice reserved and referred the matter to the full court. The SJC held, inter alia, that "the dispute involves a difference of opinion over policy that, in the circumstances, does not constitute substantial evidence of cause to remove" and vacated the order of dismissal. Levy II,
C. The District Court Proceedings
In addition to seeking review in state court, Mihos reserved his right to press his First Amendment claim in federal district court, which he did simultaneously with the state court proceedings.2 In his district court complaint, Mihos alleged that Swift violated his First Amendment rights by retaliating against him because of his vote regarding the timing of the toll increases, and he sought, inter alia, declaratory relief, compensatory and punitive damages, and attorney's fees. Swift responded with a motion to dismiss, asserting the defense of qualified immunity. Both parties agreed that discovery should be stayed pending the resolution of the qualified immunity issue. On October 29, 2002, the district court rejected Swift's qualified immunity defense and denied her motion to dismiss. Mihos I,
Pursuant to the district court's request, the parties submitted memoranda regarding plaintiff's claim for compensatory and punitive damages, as well as attorney's fees. Additionally, plaintiff sought discovery on issues relating to punitive damages. After denying the discovery request, the district court issued an opinion and final judgment on December 17, 2002. Mihos II,
Swift appealed the declaratory judgment in Mihos II and the denial of qualified immunity in Mihos I, and Mihos appealed the denial of any claim for damages in Mihos II. Both parties argue that the record before the district court in Mihos II was inadequate to support the ruling against them.
II.
We first address the district court's rulings in Mihos II. Then, because the scope of the record necessarily affects our analysis of Swift's qualified immunity defense in Mihos I, we turn next to determining the record that was properly before the district court. Finally, we analyze Swift's qualified immunity defense in light of that record.
A. The Mihos II Rulings: Declaratory Judgment for Mihos and Judgment for Swift on Mihos's Damages Claim
Swift seeks reversal of the declaratory judgment that she violated Mihos's First Amendment rights, arguing that it was prematurely entered. We agree. For a plaintiff to overcome a qualified immunity defense, he must show that his allegations, if true, establish a constitutional violation; that the right was clearly established; and that a reasonable official would have known that his actions violated the constitutional right at issue. See Suboh v. District Attorney's Office of Suffolk Dist.,
The judgment for Swift on Mihos's damages claim presents a different problem. Although the district court avoided the language of qualified immunity in its ruling against Mihos, its conclusion that Swift did not have to answer in damages for a violation of Mihos's First Amendment right was tantamount to a qualified immunity victory for Swift. As such, the denial of damages in Mihos II was a reversal of the district court's ruling in Mihos I, which rejected Swift's qualified immunity defense entirely. The overriding question is which qualified immunity ruling was correct. If the court's rejection of qualified immunity in Mihos I was right, its acceptance of qualified immunity in Mihos II was wrong. For reasons we shall explain, the district court's first ruling was correct. Consequently, the district court erred in dismissing Mihos's damages claim.
B. The Scope of the Record
When a motion to dismiss is based on the complaint, as it is here, the facts alleged in the complaint control. Behrens v. Pelletier
At issue here is whether and to what extent one of these exceptions encompasses the SJC's decision in Levy II. That is, we must determine whether the decision of the SJC in Levy II changed the rules applicable to a motion to dismiss when evaluating Mihos's claim in his federal lawsuit that Swift's motivation for firing him was constitutionally proscribed. In her reply brief, Swift neatly sums up the course of action taken by the district court: "the District Court assumed the facts alleged in the complaint to be true, disregarded allegations concerning the subjective intent of the Governor [and] relied on the decisions of the Supreme Judicial Court to explain the course of the proceedings and the Governor's stated grounds for removal...." We agree with Swift that this is the course of action the district court took; however, that course was misguided.
Because Swift's "motivation in effecting the discharge is an essential element of [Mihos's] constitutional claim," the motivations for Swift's actions are crucial to this case. Feliciano-Angulo v. Rivera-Cruz,
Here, relying on Levy II for findings about Swift's motivations for firing Mihos, the district court found that "[i]n the exercise of her discretion, Swift had concluded that Mihos'[s] `acts and omissions concerning the Authority's finances, particularly during the time period culminating with the Authority's October 30, 2001[,] [b]oard meeting and immediately thereafter, were fiscally irresponsible, resulting in adverse consequences of substantially decreasing projected revenues of the Authority, damaging the Authority's credit outlook, and creating financial instability.'" Mihos II,
Based on these findings, the district court "conclude[d] that these claims by Mihos are barred by the First Amendment and other protections against an award of damages for the good faith performance of public duties by the Acting Governor of the Commonwealth." Mihos II,
Swift claims that the district court properly relied on Levy II in making these determinations regarding her motivations for firing Mihos because, according to Swift, federal courts may take judicial notice of related decisions of state courts when ruling on a motion to dismiss.6 In essence, Swift urges that the SJC's findings in Levy II estop Mihos from alleging in this federal lawsuit that her motives for firing him were other than those described by the SJC in Levy II.
This argument misapprehends the scope of issue preclusion: "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27 (1982)(emphasis added). It follows from this hornbook definition of issue preclusion that the district court made improper use of Levy II in deciding Mihos II. The task before the SJC in Levy II was to decide whether Swift's stated reasons for terminating Mihos satisfied the "for cause" standard. The SJC did not address whether Swift's stated reasons were actually the reasons that motivated her actions. Indeed, the court stated specifically that "the Governor's good faith and honest judgment play no part in the instant matters affecting the Authority." Levy II,
We conclude that the district court's reliance on Levy II in assessing Swift's actual motivation for firing Mihos was improper since that issue was never litigated. As we have said before, "when two adversaries concentrate in attempting to resolve an issue importantly involved in a litigation, there is no unfairness in considering that issue settled for all time between the parties and those in their shoes. But ... it is unfair to close the door to issues which have not been on stage center, for there is no knowing what the white light of controversy would have revealed." Farmington Dowel Prods. Co. v. Forster Mfg. Co., Inc.,
The statements in Levy II related to Swift's motivation do not fall within one of the exceptions to the general rule that the facts alleged in the complaint control on a motion to dismiss. Accordingly, we limit the factual considerations in our qualified immunity analysis to the allegations in Mihos's complaint.7
C. Qualified Immunity
Having ascertained the scope of the record before us, we now turn to Swift's qualified immunity defense. "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
Drawing on Supreme Court precedent and our own case law, we employ a three-part test when determining if a public official is entitled to qualified immunity: (1) whether plaintiff's allegations, if true, establish a constitutional violation; (2) whether that right was clearly established at the time of the alleged violation; and (3) whether a similarly situated reasonable official would have understood that the challenged action violated the constitutional right at issue. Suboh,
1. Constitutional Violation
Because Mihos alleged that Swift violated his First Amendment rights, the first step in our qualified immunity analysis breaks down into a three-part inquiry itself: (1) whether the speech involves a matter of public concern; (2) whether, when balanced against each other, the First Amendment interests of the plaintiff and the public outweigh the government's interest in functioning efficiently; and (3) whether the protected speech was a substantial or motivating factor in the adverse action against the plaintiff. Mullin v. Town of Fairhaven,
a. Matter of Public Concern
For purposes of the motion to dismiss, Swift did not contest that Mihos's vote on the toll increase was a matter of public concern. Mihos I,
We are guided in this inquiry by the Supreme Court's holding in Connick: "Whether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record."
"Where a public employee speaks out on a topic which is clearly a legitimate matter of inherent concern to the electorate, the court may eschew further inquiry into the employee's motives as revealed by the `form and context' of the expression." O'Connor v. Steeves,
b. Balancing the Interests
The next step in determining whether Swift violated Mihos's constitutional rights is to balance the interests of Mihos and the public in Mihos's speech (his vote) against the "interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees...." Pickering,
It is here, in the Pickering balancing, that Swift's motivations for firing Mihos loom large. In evaluating the defendant's side of the scale, Pickering and its progeny instruct courts to focus on the government's "legitimate interests in preventing unnecessary disruptions and inefficiencies in carrying out its public service mission." O'Connor,
Given the importance of Swift's motivation for firing Mihos for his vote, we must pause to address Swift's argument in her brief that "the state of mind of the public official is not relevant to the question of qualified immunity," citing to Harlow v. Fitzgerald,
Prior to Harlow, the third step of the qualified immunity inquiry consisted of both objective and subjective components: a defendant would not be entitled to qualified immunity "if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury...." Wood v. Strickland,
Seven years later, in Harlow, the Supreme Court revisited the relevance of the public official's subjective state of mind in the qualified immunity analysis. First, the Court noted that "[t]he resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative." Harlow,
Because of the incompatibility of the subjective inquiry with the need to dismiss insubstantial cases prior to trial, the Harlow Court found that "the dismissal of insubstantial lawsuits without trial — a factor presupposed in the balance of competing interests struck by our prior cases — requires an adjustment of the `good faith' standard established by our decisions." Harlow,
Harlow, then, did not affect the first step of the qualified immunity analysis: whether plaintiff's allegations, if true, establish a constitutional violation. Certain constitutional violations, including First Amendment retaliation claims, include defendant's motivations as a foundational element of the tort: Mihos's First Amendment retaliation claim "has no meaning absent the allegation of impermissible motivation." Acevedo-Garcia,
In Crawford-El v. Britton,
Emphasizing its concern with intrusive discovery into a public official's state of mind, the Court observed that under Wood, prior to Harlow, allegations of defendant's malicious intent to cause any injury at all to plaintiff — not just constitutional deprivations — "would have permitted an open-ended inquiry into [the official's] subjective motivation." Id. In contrast, the Court found that when assessing intent as an element of a constitutional violation, the motivation inquiry is not so broad as to allow discovery on any potential theoretical basis for the cause of defendant's alleged animosity towards plaintiff: "rather, [the motivation inquiry] is more specific, such as an intent... to deter public comment on a specific issue of public importance." Id.
The Court then observed that "existing law already prevents this more narrow element of unconstitutional motive [alleged as part of the underlying constitutional tort] from automatically carrying a plaintiff to trial." Id. This is true because a defendant might prevail on a qualified immunity defense in a case alleging an intent-based constitutional tort, without need to inquire as to her motives, if (1) the relevant law was not clearly established, (2) the plaintiff's speech did not relate to a matter of public concern, or (3) the defendant showed that she would have reached the same decision even in the absence of the employee's protected speech. Id. at 592-93,
In Part IV of its opinion in Crawford-El, the Court recognized that even though a qualified immunity defense to an intent-based constitutional tort often can be resolved on grounds that avoid inquiries into the government official's motives, that will not always be so. Therefore, the Court found it "appropriate to add a few words on some of the existing procedures available to federal trial judges in handling claims that involve examination of an official's state of mind." Id. at 597.,
With its careful attention to the ways in which trial courts can control the examination of an official's state of mind pre-trial, the Supreme Court acknowledged in Crawford-El that the adoption of an objective standard for qualified immunity in Harlow did not foreclose all state of mind inquiries during the pre-trial consideration of qualified immunity when state of mind is an element of the constitutional tort.13 Swift misreads Harlow in asserting that its reformulation of the qualified immunity defense makes her motivation in firing Mihos irrelevant to the qualified immunity analysis. Therefore, if the qualified immunity defense proffered in her motion to dismiss does not identify proper grounds apart from motive for dismissing the case, and if the thrust of her motion to dismiss is simply to deny that she acted with the constitutionally proscribed motive, she is unlikely to succeed.
Apart from her misguided argument that motivation is always irrelevant to the qualified immunity inquiry, Swift only argues that no constitutional violation occurred because her termination of Mihos was motivated by her legitimate concerns for the public's interest rather than by a desire to politically retaliate against him. However, as we have previously explained, on a motion to dismiss we must accept as true the allegations in Mihos's complaint about Swift's motivation. In the Pickering balance, the exercise to which we now return, these allegations produce a decisive tilt for Mihos.
We look first to Mihos's side of the scale to assess "the interests served by [Mihos's First Amendment activity] — including [his] interests in communicating, and the interests of the community in receiving, information on matters of public importance...." O'Connor,
In turning to Swift's side of the balance, we find almost nothing because of the posture of this case. We have already explained why the Levy II descriptions of Swift's reasons for firing Mihos cannot trump the contrary allegations in Mihos's complaint. In consequence, the complaint alone sets forth the factual allegations that inform our review of this motion to dismiss.
In his complaint, Mihos explains that Swift stated in the February 6, 2002 termination letters that she removed Mihos and Levy from office principally because their votes were "fiscally irresponsible." However, Mihos's complaint then denies this charge, stating that the motion for which he voted "was fiscally sound and in the best interest of the Authority." Furthermore, Mihos alleged that "he exercised his best judgment and concluded that the January 2002 toll increase was not in the Authority's best interests and was not necessary as a matter of law." According to Mihos's complaint, "Swift was enraged that the Authority failed to approve the January 2002 toll increase, which she supported." Further, Mihos alleged that the actions Swift took against him "were in direct retaliation for the votes" he took regarding the tolls. Finally, Mihos alleged that he was "removed from public office before the expiration of his term because of disagreement with the way [he] voted on matters of public concern" and that his termination was "political interference and intimidation." The district court, and this court on appeal, must accept Mihos's version of the dispute. Accordingly, when considering only the complaint, as we are bound to do, we find a void on Swift's side of the scale and the Pickering scale tips decisively in favor of Mihos.
c. Substantial Factor
Having determined that the Pickering balance favors Mihos's First Amendment rights, we now consider whether his vote was a substantial factor in Swift's decision to fire him. See Mt. Healthy City School Dist. Bd. Educ. v. Doyle,
Mihos and Levy voted against Swift's wishes regarding the toll increases on October 30, 2001. Seventeen days later, on November 16, Swift informed Mihos and Levy that she was removing them from office. Following Levy I and the termination hearing, Swift notified Mihos and Levy of her decision to remove them for cause, stating that the principal cause for their removal was their "fiscally irresponsible" votes on October 30, 2001. The third member of the Turnpike Authority, who proposed the January 2002 increases and voted against the July 2002 toll increases, never received any such communication. Hence, we agree with the district court that, on these facts, there is no serious dispute that Mihos's vote on the timing of the toll increases was a substantial factor in Swift's decision to remove him from office.
Having determined that (1) Mihos's vote involved a matter of public concern, (2) Mihos's and the public's interest are more weighty on the Pickering scale than Swift's, and (3) Mihos's vote was a substantial factor in Swift's decision to fire him, we conclude that Mihos has alleged a violation of his First Amendment rights.
2. Clearly Established Right
We now turn to whether Mihos's First Amendment right in this case was clearly established at the time Swift decided to remove him from the Turnpike Authority.
The level of abstractness at which the "right" in question is articulated can often determine the outcome of this inquiry. In consequence, the Supreme Court has cautioned against applying general definitions of constitutional rights in the qualified immunity context. Anderson v. Creighton,
With this guidance in mind, we articulate the First Amendment right at stake here as the right of a public official to vote on a matter of public concern properly before his agency without suffering retaliation from the appointing authority for reasons unrelated to legitimate governmental interests. We have applied a similar formulation before: "[a]lthough we have found no cases directly on point, probably because it is considered unassailable, we 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." Miller v. Town of Hull,
Notwithstanding Stella and Miller, Swift urges that "a balancing test, by its indeterminate nature, makes it highly unlikely that a public employer, in such circumstances, could be held to have violated a clearly established right." In support of this proposition, Swift refers to Frazier v. Bailey, quoted by the district court in Mihos II, holding that when a right is "subject to a balancing test, the right can rarely be considered `clearly established,' at least in the absence of closely corresponding factual and legal precedent."
As Swift acknowledges in her brief, both cases involve votes by public officials on matters of public concern and their subsequent removal based on those votes. Swift seeks to downplay their import by emphasizing that Miller and Stella neither applied the Pickering balancing test nor addressed "the limits of the `right to vote' where the removing official states that the consequences of the decision rendered by the `vote' will harm the public interest."
Once again, Swift is hampered by the procedural posture of this case. Her stated belief that the consequences of Mihos's vote will harm the public interest cannot trump Mihos's claim of a politically retaliatory motive. As we have explained at length, on a motion to dismiss the factual allegations in the complaint control. Hence, Swift's defense of her action cannot serve to distinguish Stella and Miller any more than it can weigh on her side of the Pickering scale.
3. The Understanding of a Reasonable Official
The third step in the qualified immunity analysis, which embodies the objective standard announced in Harlow, requires us to analyze "whether an objectively reasonable officer in the defendant's position would have understood [her] action to violate the plaintiff's rights." Suboh,
Having found that (1) Mihos's allegations, if true, establish a violation of his First Amendment rights, (2) the right was clearly established at the time Swift fired him, and (3) a reasonable public official would have known that the discharge constituted a constitutional violation, we find that Swift is not entitled to qualified immunity.16
III.
For the reasons explained above, we affirm the district court's denial of the motion to dismiss in Mihos I, vacate the declaratory judgment and the denial of damages in Mihos II, and remand for proceedings consistent with this opinion.
SO ORDERED.
Notes:
Notes
Of the Northern District of California, sitting by designation
Three appeals have been filed in this case. The first, 02-2521, is Swift's appeal from the court's denial of her motion to dismiss inMihos I. The second, 03-1038, is Mihos's appeal from the court's denial of damages in Mihos II. The third, 03-1090, is Swift's appeal from the court's award of a declaratory judgment to Mihos in Mihos II. Accordingly, Swift is designated as the "Defendant, Appellant/Cross-Appellee," and Mihos is designated as the "Plaintiff, Appellee/Cross-Appellant."
Additionally, William F. Galvin, in his official capacity as the Secretary of the Commonwealth of Massachusetts, is captioned as the "Defendant" on these appeals. After a state court proceeding ordered Mihos reinstated, Mihos's request for injunctive relief against Swift and Galvin was moot. Consequently, Mihos's motion to dismiss the claims against Swift in her official capacity and against Galvin entirely was granted on October 29, 2002, and there is no appeal pending in this matter regarding Secretary Galvin.
See England v. Louisiana State Bd. of Med. Examiners,
We recognize that qualified immunity, in its full scope, shields public officials from the burdens of lawsuits and damagesSee, e.g., Guzman-Rivera v. Rivera-Cruz
For example, the district court wrote inMihos II that
to comport with constitutional and other fundamental principles, [Swift] says qualified immunity should be recognized where a public official is required to exercise her judgment and form an opinion as to a balance between competing interests, so long as the official does not knowingly or recklessly rely upon irrelevant considerations or false information, or ignore contrary information.
Here, defendant Swift asserts that she exercised her judgment and acted on her opinion in fact-specific circumstances as to which previous cases could only have been of limited assistance as to the appropriate weighing of clashing rights asserted by the parties. Swift says no showing has been made by Mihos that Swift acted in reckless disregard of information not supporting her opinion, or relied upon irrelevant or false considerations. Accordingly, she should be protected from personal liability.
I conclude that First Amendment precedents identified in all the preceding parts of this opinion support this assertion by defendant Swift.
Mihos II,
In reciting these reasons fromLevy II, the district court ignored language in Levy II finding that many of the non-retaliatory reasons for the terminations advanced by Swift were supported by "no evidence." See, e.g., Levy II,
In her reply brief, Swift also urges thatLevy II is part of the record because Mihos "made specific reference to the proceedings before the SJC in his complaint." See, e.g., Watterson v. Page,
We need not address at this juncture the exact contours of the proper use ofLevy I and Levy II in the proceedings on remand. Beyond Swift's attempted reliance on the motivation issue, neither party seeks to bring other findings in the Levy litigation into the record.
In making this observation, we express no opinion regarding the preclusive effect, if any, thatLevy II might have on remand in evaluating the legitimacy of these concerns or Swift's ability to demonstrate them on the record.
Although in many areas of the law there are important distinctions between "intent" and "motive," we use them here interchangeably because the Supreme Court does so in its qualified immunity jurisprudenceSee, e.g., Harlow v. Fitzgerald,
The Supreme Court recently explained again that "[t]he reason why retaliating against individuals for their speech offends the Constitution is that it threatens to inhibit exercise of the protected right. Retaliation is thus akin to an `unconstitutional condition' demanded for the receipt of a government-provided benefit."Crawford-El v. Britton,
Of course, if the constitutional tort itself does not include a subjective element such as intent, it would be an error to import such an element into the qualified immunity assessment of whether the plaintiff's allegations, if true, establish a constitutional violation
Fed.R.Civ.P. 7(a) allows a court to "order a reply to an answer...." Fed.R.Civ.P. 12(e) provides that "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired."
When plaintiffs allege an intent-based constitutional tort, defendants asserting qualified immunity often quote the passage inCrawford-El stating that "improper motive is irrelevant on the issue of qualified immunity...."
Indeed, in the footnote immediately preceding the statement that "evidence of improper motive is irrelevant on the issue of qualified immunity," Crawford-El quotes an opinion of Justice Ginsburg, when she was a judge on the District of Columbia Circuit, and calls it a "correct understanding of Harlow. ..."
Had the Court [in Harlow] intended its formulation of the qualified immunity defense to foreclose all inquiry into the defendants' state of mind, the Court might have instructed the entry of judgment for defendants Harlow and Butterfield on the constitutional claim without further ado. In fact, the Court returned the case to the district court in an open-ended remand, a disposition hardly consistent with a firm intent to delete the state of mind inquiry from every constitutional tort calculus.
Crawford-El,
Many of the qualified immunity cases use the phrases "substantial factor" and "motivating factor" interchangeably to describe the causal relationship between the protected conduct and the adverse action taken against the plaintiff. We prefer to use the phrase "substantial factor" to avoid confusion with the earlier discussion of motivation, where motivation, rather than referring to causation, refers to whether Swift was concerned about legitimate government interests or impermissible retaliationSee Stella,
Whether a reasonable person in Swift's position would have known that her actions violated that clearly established right is a different question. We address that question in the next section
Of course, this ruling does not preclude Swift from asserting qualified immunity in a subsequent motion for summary judgment or at trialSee Guzman-Rivera v. Rivera-Cruz,