E. STEPHEN DEAN, Plaintiff-Appellant, v. THOMAS K. BYERLEY, Defendant-Appellee.
No. 02-1421
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 8, 2004
2004 FED App. 0008P (6th Cir.)
Before: DAUGHTREY, MOORE, and SUTTON, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. ELECTRONIC CITATION: 2004 FED App. 0008P (6th Cir.) File Name: 04a0008p.06. Appeal from the United States District Court for the Western District of Michigan at Lansing. No. 01-00040—Gordon J. Quist, District Judge. Argued: August 1, 2003.
ARGUED: Victoria V. Kremski, STATE BAR OF MICHIGAN, Lansing, Michigan, for Appellee. E. Stephen Dean, Piedmont, Missouri, pro se. ON BRIEF: Victoria V. Kremski, STATE BAR OF MICHIGAN, Lansing, Michigan, for Appellee. E. Stephen Dean, Piedmont, Missouri, pro se.
OPINION
KAREN NELSON MOORE, Circuit Judge. This appeal raises an important question concerning the scope of an individual‘s right to engage in targeted residential picketing in the wake of the Supreme Court‘s decision in Frisby v. Schultz, 487 U.S. 474 (1988). We conclude that Frisby did not place in question an individual‘s clearly established right to engage in peaceful targeted residential picketing; rather it carved out an exception to this right, allowing the government to prohibit such picketing through a narrowly tailored and applicable time, place, or manner regulation.
Plaintiff-Appellant, E. Stephen Dean (“Dean“), appeals the district court‘s order granting summary judgment to Defendant-Appellee, Thomas K. Byerley (“Byerley“), the Regulation Counsel and Director of Professional Standards Division for the State Bar of Michigan. Dean filed this action under
Contrary to the district court, we conclude that Dean created a genuine issue of material fact as to whether Byerley
I. BACKGROUND
After graduating from the Thomas Cooley School of Law at age 60, Dean submitted his application for admission to the State Bar of Michigan in December 2000. When Dean delivered his application to the Executive Director of the State Bar of Michigan, Dean expressed concern that it was incomplete and explained that he was unable to recall the addresses of all of his prior residences. Dean alleges that subsequently State Bar of Michigan employees repeatedly requested additional information and refused to accept his explanation that he had done his best to obtain the required information, but that he could not remember the addresses of residences he had lived in over twenty-five years ago. After this interaction with the State Bar of Michigan employees, but before the Bar made a decision regarding Dean‘s bar application and before Dean took the bar exam, Dean began picketing to publicize the treatment he received from the State Bar of Michigan employees. Initially, Dean and two individuals hired by Dean picketed the State Bar of Michigan building. Then, on March 27, 2001, Dean and the hired individuals extended their picketing to Byerley‘s residence.
On the morning of March 27, 2001, Dean and the hired individuals picketed near Byerley‘s residence. Dean alleges that he and the hired individuals only picketed on the street in front of Byerley‘s residence. Byerley, on the other hand, alleges that Dean and the hired individuals also picketed on Byerley‘s private property. The parties agree, however, that on the morning of March 27, 2001, Dean and the hired
Dean further alleges that while he and the hired individuals were picketing near Byerley‘s residence, a confrontation occurred between Byerley and the picketers. Dean alleges that during the confrontation, Byerley told Dean “that because of his picketing the State Bar of Michigan and his home [Dean] would never be allowed to practice law in the state of Michigan. [Byerley] then stated that he was going to have [Dean] arrested for picketing.” Second Am. Compl., Aug. 23, 2001, ¶¶ 13, 14. Dean also alleges that Byerley twice “intentionally drove his automobile directly towards [Dean].” Id. ¶ 11, 18. After the confrontation, Dean and the hired individuals left the area. Since the confrontation, Dean has not picketed near Byerley‘s residence or the State Bar of Michigan building.
Two days after the incident, on March 29, 2001, Byerley sent Dean a letter pertaining to the confrontation. This letter was written on State Bar of Michigan letterhead. In its entirety, the letter reads:
As you know, you and two other individuals were outside of my private residence on Tuesday, March 27, 2001 carrying signs. Although you have a right to exercise your First Amendment rights on public property, you do not have that right on private property.
On March 27 I verbally told you that you were on private property and that if you did not immediately leave I would call the police. This letter memorializes that statement. You are put on formal notice that you are never welcome on my private property and that if you trespass again I will ask that you be arrested.
Similarly, you are notified that you are not to enter the private property of any other State Bar of Michigan employee or officer.
I fully expect that you will not repeat your trespass.
Def.‘s Br. in Supp. of Mot. for Summ. J., Ex. E.
On April 4, 2001, Dean commenced a pro se action against Byerley in the United States District Court for the Western District of Michigan. In this action, Dean brought a
In August 2001, Byerley filed a motion for summary judgment. A magistrate judge concluded that summary judgment was proper based upon his determination that Dean did not have a constitutionally protected right to engage in targeted residential picketing. The magistrate judge recommended that the district court grant summary judgment to Byerley on Dean‘s
II. ANALYSIS
A. Standard of Review
This court reviews de novo the district court‘s grant of summary judgment. Waters v. City of Morristown, 242 F.3d 353, 358 (6th Cir. 2001). Summary judgment is proper when “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.”
B. Section 1983 Claim
1. First Amendment
Dean filed this action under
The parties dispute whether Dean had a constitutionally protected right to engage in targeted picketing on the street in front of Byerley‘s residence. The district court did not reach this issue and instead granted Byerley‘s motion for summary judgment based upon its finding that Byerley did not act under color of state law. On appeal, Dean argues that, in the absence of an applicable time, place, or manner restriction, Dean had a constitutionally protected right to engage in targeted residential picketing. See Appellant‘s Br. at 16. Byerley counters that Dean did not have a constitutionally protected right to engage in targeted residential picketing, regardless of whether there is an applicable time, place, or manner restriction. See Appellee‘s Br. at 18-20.
We agree with the parties that there is no applicable Michigan statute that bans all targeted residential picketing. It is true that
AN ACT to create a commission relative to labor disputes, and to prescribe its powers and duties; to provide for the mediation and arbitration of labor disputes, and the holding of elections thereon; to regulate the conduct of parties to labor disputes and to require the parties to follow certain procedures; to regulate and limit the right to strike and picket; to protect the rights and privileges of employees, including the right to organize
See id. Additionally, the other sections of the Act govern employment relations by creating an employment relations commission, prescribing rules for collective bargaining and labor disputes, and defining unfair labor practices. See generally id.
It shall be unlawful (1) for any person or persons to hinder or prevent by mass picketing, unlawful threats or force the pursuit of any lawful work or employment, (2) to obstruct or interfere with entrance to or egress from any place of employment, (3) to obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance, or (4) to engage in picketing a private residence by any means or methods whatever: Provided, That picketing, to the extent that the same is authorized under constitutional provisions, shall in no manner be prohibited. Violation of this section shall be a misdemeanor and punishable as such.
Id. (emphases added). The title of the Act, the preamble, the other sections of the Act, and the surrounding clauses in the particular statutory section under consideration all clearly indicate that
The dissent contends that if
In Boos v. Barry, 485 U.S. 312, 332-34 (1988), the Supreme Court held that two provisions of the District of Columbia Code did not combine to create an Equal Protection Clause violation. Section 22-1115 limited individuals’ right to congregate within 500 feet of an embassy regardless of the message they sought to convey, and § 22-1116 stated that § 22-1115 did not prohibit labor picketing. Id. at 333-34. The Supreme Court accepted a narrowing construction of § 22-1115 as only prohibiting “congregations that threaten the security or peace of an embassy.” Id. at 333. Therefore, the Supreme Court construed § 22-1115 as prohibiting individuals from engaging in violent congregations within 500 feet of an embassy, regardless of the message they sought to convey, and allowing all peaceful congregations. The Supreme Court then determined that § 22-1116 does not protect violent labor congregations; therefore, the statutes did not treat labor and nonlabor picketing differently. Id. The Supreme Court‘s refusal to read the labor picketing exception contained in § 22-1116 broadly so as to authorize violent labor picketing did not increase the scope of conduct prohibited by the ordinance, for § 22-1115 already banned all violent congregations.
Finally, in United States v. Seeger, 380 U.S. 163, 165-66 (1965), the Supreme Court broadened the conscientious-objector exception contained in the Universal Military Training and Service Act. Interpreting the Act in this manner actually lessened the range of conduct deemed criminal, rather than increased it.
The dissent cites these cases as support for his effort to read
Dean was not engaged in labor picketing when the confrontation at issue occurred; therefore,
Byerley has not identified any other Michigan law that bans residential picketing. Thus, proper resolution of this dispute turns on whether there is a constitutionally protected right to engage in targeted residential picketing in the absence of an applicable time, place, or manner restriction.
Over sixty years ago, the Supreme Court declared that use of the streets for assembly and communication is a right held by U.S. citizens pursuant to the First Amendment. Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939). The Supreme Court has also declared that “as a general matter peaceful picketing and leafletting are expressive activities involving ‘speech’ protected by the First Amendment.” United States v. Grace, 461 U.S. 171, 176 (1983). Although the Supreme Court has recognized that the government may regulate this use of the streets to ensure general comfort and order, the Court has warned that the government must not use such regulations to abridge or deny that right. Hague, 307 U.S. at 516. The Supreme Court considers streets and sidewalks to be public fora for purposes of First Amendment
In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court discussed the limits on the government‘s ability to regulate use of streets for assembly and communication. The Court upheld against a facial challenge an ordinance adopted by Brookfield, Wisconsin “that completely bans picketing ‘before or about’ any residence.” Id. at 476. The Court admonished that streets are traditional public fora; therefore, regulations of assembly and communication on streets must satisfy the appropriate level of scrutiny. Id. at 481. As the Court stated,
In these quintessential public for[a], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may also enforce regulations of the time, place, and manner of expression which are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
Id. (quoting Perry Educ. Ass‘n v. Perry Local Educators’ Ass‘n, 460 U.S. 37, 45 (1983)). The Court adopted a narrowing construction of the ordinance at issue and concluded that it only banned targeted picketing directed at a single residence. Id. at 482-83. The Court then held that the ordinance, narrowly construed, satisfied the scrutiny applicable to time, place, and manner regulations. Id. at 487-88.
Byerley points to passages in Frisby discussing the government‘s interest in protecting the privacy of the home to support his argument that there is no constitutionally protected right to engage in targeted residential picketing.
The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas. In such cases “the flow of information [is not] into . . . household[s], but to the public.” Here, in contrast, the picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy.
Appellee‘s Br. at 19 (quoting Frisby, 487 U.S. at 486) (citations omitted). Byerley acknowledges that Frisby does not preclude “targeted residential picketing in the absence of an ordinance or state law prohibiting it,” but nonetheless asserts that targeted residential picketing is not constitutionally protected. Appellee‘s Br. at 20. In essence, Byerley argues that if targeted picketing “may be banned outright under First Amendment precedent, then the activity is inherently unworthy of constitutional protection.” Id.
Contrary to Byerley‘s argument, Supreme Court precedent makes it clear that citizens have the constitutional right to use streets for assembly and communication. See Hague, 307 U.S. at 515-16. Although the government may restrict that right through appropriate regulations, that right remains unfettered unless and until the government passes such regulations. See id. at 516. While there are passages in Frisby that discuss the government‘s interest in protecting the privacy of the home, Frisby does not support the proposition that the right to residential privacy automatically trumps the
2. Retaliation Claim
Dean has created a genuine issue of material fact as to whether Byerley violated Dean‘s First Amendment rights during the March 27, 2001 confrontation. While Dean does not explicitly label his claim as one of retaliation, his allegation that Byerley threatened that Dean would never practice law in the state of Michigan due to his picketing and his allegation that Byerley threatened to have the picketers arrested make it clear that Dean is asserting a garden-variety retaliation claim. This court has held that a
When the confrontation occurred, Dean was allegedly picketing on the street in front of Byerley‘s residence, which is conduct protected by the First Amendment. Dean alleges that during the confrontation, Byerley threatened that Dean would never practice law in the state of Michigan due to his
3. Under Color of State Law
To satisfy the second requirement of his
The district court granted Byerley‘s motion for summary judgment based upon its finding that Byerley did not act under color of state law. The district court found that “[i]n expressing his anger towards [Dean‘s] conduct, [Byerley] was not performing some duty of his office or exercising his official responsibilities. Rather, [Byerley‘s] conduct was that of a private citizen.” Dist. Ct. Op. at 3. The district court found that Byerley merely asserted his right to seek to have Dean arrested for trespassing on private property and his right to report a complaint to the State Bar of Michigan regarding Dean‘s character and fitness. The district court concluded that all persons possess these rights, and thus that Byerley did not need state authority to act as he did.
The Supreme Court has held, however, that a defendant in a
Byerley possessed state authority pursuant to his status as Regulation Counsel for the State Bar of Michigan.6 Dean has presented evidence that Byerley purported to act under that state authority. In his complaint, Dean alleged that during the March 27, 2001 confrontation, Byerley stated “that because of [Dean‘s] picketing the State Bar of Michigan and [Byerley‘s] home [Dean] would never be allowed to practice law in the state of Michigan.” Second Am. Compl., Aug. 23, 2003, ¶ 13. Then, on March 29, 2001, Byerley sent a letter on State Bar of Michigan letterhead, pertaining to the March 27, 2001 confrontation. In that letter, Byerley stated that if Dean trespassed on Byerley‘s property again, Byerley would request that Dean be arrested. The letter further stated that Dean was “not to enter the private property of any other State Bar of Michigan employee or officer.” Def‘s Br. in Supp. of Mot. for Summ. J., Ex. E.
Additionally, Byerley has never explicitly denied Dean‘s allegation that Byerley acted under color of state law. In his answer, Byerley responded to Dean‘s allegation that Byerley acted under color of state law by admitting “that Plaintiff‘s allegations against Defendant arise from Defendant‘s status as Regulation Counsel for the State Bar of Michigan.” Answer to First Am. Compl., June 20, 2001, ¶ 6. In neither Byerley‘s motion for summary judgment and his brief in
C. Immunity
1. Absolute Immunity
Even if the plaintiff in a
“The burden of justifying absolute immunity rests on the official asserting the claim.” Harlow, 457 U.S. at 812; see also Lomaz, 151 F.3d at 497. Therefore, Byerley had the burden of proving that he is entitled to absolute immunity. During the hearing on Byerley‘s motion for summary judgment, Byerley argued that “[t]he Supreme Court of the State of Michigan in Rule 15 of the rules concerning the State Bar of Michigan, granted absolute immunity to state bar staff for conduct arising out of the performance of their duties.” Summ. J. Hr‘g Tr. at 5. Later, in his supplemental brief, Byerley conceded that state rule 15 is irrelevant to the scope of his immunity in this action because the scope of immunity in a
In Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997), cert. denied, 523 U.S. 1075 (1998), we discussed the factors that courts must consider when determining whether an act is judicial in nature, and thus protected by absolute immunity.11 First, the court must consider whether the function is normally performed by an adjudicator. Id. at 255. However, even if an act is not normally performed by an adjudicator, the court should look to the act‘s relation to a general function normally performed by an adjudicator. Id. “This functional approach examines the ‘nature’ and ‘function’ of the act, not the act itself.” Id. Second, the court must consider whether the plaintiff dealt with the defendant in the defendant‘s adjudicative capacity.
In Barrett, this court was faced with the question of whether a judge was entitled to absolute immunity from liability for actions she took in response to a litigant‘s public criticism of her. Id. at 253. The judge sent letters to prosecutors stating that the litigant was harassing her. Those letters prompted an investigation of the litigant. The judge also made statements to the news media accusing the litigant of stalking her. We determined that absolute immunity shielded the judge from liability for her letters to the prosecutors because the judge was attempting to preserve the integrity of the judicial process, which is a function related to those normally performed by an adjudicator. Id. at 258-59. Furthermore, the litigant‘s harassment stemmed from the judge‘s adverse decision against him; therefore, the litigant dealt with the judge in her adjudicative capacity. Id. at 260. However, we also determined that absolute immunity did not shield the judge from liability for her statements to the media because speaking to the media about a litigant does not preserve the integrity of the judicial process, and instead merely informs the public of the judge‘s views. Id. at 261.
In this case, the actions Byerley allegedly took in response to Dean‘s picketing are not functions normally performed by an adjudicator nor are they related to functions normally performed by an adjudicator. Although Byerley was employed as Regulation Counsel for the State Bar of Michigan and although the Bar is merely an extension of the Michigan Supreme Court for purposes of deciding whether to grant or deny Bar applications, it is clear on the record as it now stands that Byerley was not performing an adjudicative function during the March 27, 2001 confrontation.12 Dean alleges that in response to his picketing, Byerley threatened that Dean would never practice law in the state of Michigan and threatened to have the picketers arrested. Neither of these actions are related to the decision of whether to grant or deny Dean‘s Bar application. While reporting an applicant‘s conduct to the police and the Bar might be related to the functions normally performed by an adjudicator, the actions Dean alleges that Byerley took were of a different function and nature. Byerley‘s alleged actions were in the form of a threat for the purpose of intimidating Dean so that Dean would cease picketing. Byerley‘s alleged actions were not in the form of a statement to the police for the purpose of reporting conduct by Dean that was unlawful, or in the form of a statement to the Bar for the purpose of reporting conduct by Dean that reflected adversely on Dean‘s character. Because Byerley has failed to demonstrate in any way that he was engaged in an adjudicative function when he allegedly
Byerley has expressly raised the defense of qualified immunity. Appellee‘s Br. at 27. Byerley argues that his alleged threats during the March 27, 2001 confrontation did not violate Dean‘s clearly established federal rights because targeted residential picketing is not a constitutionally protected activity. In Byerley‘s view, Frisby established that there is no right to engage in targeted residential picketing. Appellee‘s Br. at 28. Although Dean does not expressly refute Byerley‘s defense of qualified immunity in his appellate brief, Dean repeatedly argues that, in the absence of a time, place, or manner restriction, citizens have a constitutionally protected right to engage in targeted residential picketing. Also, during the hearing on Byerley‘s motion for summary judgment, Dean expressly refuted Byerley‘s defense of qualified immunity. Summ. J. Hr‘g. Tr. at 14-18.
This court conducts a three-step analysis of qualified immunity claims. First, we determine whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred. Second, we consider whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Third, we determine whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights. Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003) (quotation omitted). Although the policy of this circuit is to resolve immunity questions at the earliest possible stage of the litigation, “[s]ummary judgment is not appropriate if there is a genuine factual dispute relating to whether [Byerley] committed acts that allegedly violated clearly established rights.” Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir.), cert. denied, 534 U.S. 1071 (2001); Mays v. City of Dayton, 134 F.3d 809, 813 (6th Cir.), cert. denied, 524 U.S. 942 (1998).
On appeal, Dean argues that Byerley‘s alleged actions during the March 27, 2001 confrontation violated his clearly established First Amendment rights. Appellant‘s Br. 16-19. In his complaint, Dean alleged that Byerley threatened that Dean would never practice law in the state of Michigan due to his picketing, and that this threat referred to Dean‘s picketing in front of Byerley‘s house as well as to Dean‘s picketing at the State Bar of Michigan building. In his complaint, Dean also alleged that Byerley threatened to have the picketers arrested. At the hearing on Byerley‘s motion for summary judgment, Dean presented a sworn deposition from Larry Doolittle (“Doolittle“), one of the hired picketers, detailing the March 27, 2001 confrontation.13 In his complaint, Dean further alleged that Byerley‘s threats chilled his desire to continue picketing and that he has not picketed near Byerley‘s residence or the State Bar of Michigan building since the confrontation.
Byerley‘s only arguments supporting his assertion that he is entitled to qualified immunity are that targeted residential picketing is not protected by the First Amendment, and that his March 29, 2001 letter demonstrates that he only objected to Dean‘s picketing on Byerley‘s private property. As discussed in Part II. B. 1. above, Dean had a clearly established right to engage in peaceful targeted residential picketing in the absence of a narrowly tailored time, place, or manner restriction. Also, Byerley never disputes, nor could he dispute, that Dean had a clearly established right to picket
III. CONCLUSION
Dean had a constitutionally protected right to engage in peaceful targeted residential picketing in the absence of a narrowly tailored and applicable time, place, or manner regulation prohibiting such picketing. The district court erred in granting summary judgment to Byerley on the basis of its determination that Byerley did not act under color of state law during the March 27, 2001 confrontation. Additionally, we conclude that Byerley is not entitled to summary judgment based either on the defense of absolute immunity or on the defense of qualified immunity. Consequently, we REVERSE the district court‘s grant of summary judgment and REMAND for further proceedings consistent with this opinion.
SUTTON, Circuit Judge, dissenting. I see this case differently. In Frisby v. Schultz, 487 U.S. 474 (1988), the Supreme Court rejected a First and Fourteenth Amendment challenge to a city ordinance that imposed a “complete ban” on “targeted residential picketing” because (among other reasons) it can “scarcely be doubted” that this medium of communication is “offensive and disturbing,” because this type of picketing is directed at “captive audience[s]” who “are presumptively unwilling to receive” the message, and because such picketing invariably “invade[s] residential privacy.” Id. at 487–88. Consistent with Frisby, the State of Michigan makes it unlawful “to engage in picketing a private residence by any means or methods whatever.”
I. BACKGROUND
While a considerable number of ambiguities cloud this pro se lawsuit, two things are clear: E. Stephen Dean had an unsatisfying experience in submitting his application to become a member of the Michigan Bar, and he believes that
Dean is a graduate of the Thomas Cooley School of Law. In December 2000, he submitted his application for admission to the State Bar of Michigan. As he was delivering the application to the Executive Director of the Bar, he expressed concern to the Executive Director of the Bar that his application was not entirely complete. As a 60-year-old law-school graduate, he explained that he was unable to identify each of his places of residence over the course of his life and that he was concerned that the omissions might prejudice his efforts to gain admission to the Bar. When questioned by a Magistrate at the hearing on Byerley‘s motion for summary judgment, Dean recounted what he had told the Executive Director in the following words.
DEAN: I‘m really concerned and what I‘m concerned about is not withholding anything, but, my gosh, I can‘t remember where I was 3 years ago and an apartment number or something like that, and that has me a little nervous. . . . The people at the bar handling this stuff are under 30. Try explaining to somebody 25 years old . . . that you don‘t remember where you lived. They think you‘re crazy. I said, but if it‘s 40 or 41 years ago it can be tough. He said, oh, don‘t worry about that; I took the bar when I was in my 50s . . . they‘ll work with you. Well, that isn‘t what I got from the bar. I got no phone calls, you know, where were you and—I‘d leave off a couple of months someplace. I‘ve lived in several states. And they keep—first, they would ignore it for a couple of weeks and then they would write back the same old, same old, as if I were refusing to cooperate with them.
THE COURT: So they were trying to get information to complete your application that they felt you ought to
provide and you were having difficulty remembering the information that you needed to provide.
DEAN: They were refusing to accept my up-front—before I handed in the application, the attachment to it, that I‘ve done my absolute best but it‘s difficult to remember 38 or 40 or 25 years ago an exact address. I‘ve done my utmost here.
***
THE COURT: All right. And then this dialogue went on between you and the staff members at the bar and eventually that led to your beginning this picketing?
DEAN: That‘s correct.
Summ. J. Hr‘g Tr. at 38–39.
At some point after these exchanges with employees of the Michigan Bar, but before the State had acted on his Bar application and before he took the Bar exam, Dean began picketing about his application and about the treatment he had received from employees of the Michigan Bar. In his first protest, in March 2001, Dean hired two individuals to assist him in picketing the Michigan State Bar Building about the treatment he had received in submitting his Bar application. He paid each picketer $10 an hour.
Dean eventually extended his picketing to the residence of Thomas Byerley, the Regulation Counsel and Director of the Professional Standards Division for the Michigan Bar. Among other things, the Professional Standards Division oversees the Michigan Bar‘s Character and Fitness Department. Members of the Department investigate the backgrounds of all State Bar applicants and assess whether they have the requisite character and fitness to practice law in Michigan. They then submit their findings to the Board of
Dean arrived at the Byerley residence on the morning of March 27, 2001, and brought with him the two mercenary picketers he had employed in earlier demonstrations. No sidewalk runs in front of Byerley‘s home. Therefore, according to Dean, he and his colleagues picketed on the public street in front of the Byerley home and solely on that part of the street in front of that home. According to Byerley, the protestors also demonstrated on his property.
When Byerley left his home for work that morning, a confrontation occurred. According to the allegations of the complaint, Byerley (1) threatened to have Dean arrested for illegal picketing and (2) told Dean he would never practice law in the State of Michigan due to his illegal picketing. After this confrontation and after Byerley had proceeded to work, Dean and the two other protesters left. Since then, Dean has not picketed Byerley‘s home or the State Bar Building.
Two days after this incident, on March 29, 2001, Byerley sent a letter to Dean about his picketing. In full, the letter reads as follows:
As you know, you and two other individuals were outside of my private residence on Tuesday, March 27, 2001 carrying signs. Although you have a right to exercise your First Amendment rights on public property, you do not have that right on private property.
On March 27 I verbally told you that you were on private property and that if you did not immediately leave I would call the police. This letter memorializes that statement. You are put on formal notice that you are never welcome on my private property and that if you trespass again I will ask that you be arrested.
Similarly, you are notified that you are not to enter the private property of any other State Bar of Michigan employee or officer.
Def.‘s Br. in Supp. of Mot. for Summ. J., Ex. E.
Rather than respond to this letter or seek to clarify his authority to continue picketing, Dean filed this pro se complaint for $2 million against Byerley on April 4, 2001. He brought the claim in the United States District Court for the Western District of Michigan, contending that Byerley: (1) had violated his First (and Fourteenth) Amendment rights and
In July 2001, during discovery in the case, Dean voluntarily withdrew his Michigan State Bar application. At a motions hearing before a Magistrate on August 15, 2001, he said, “I withdrew [my Michigan State Bar application] because I thought it was best, and my letter of withdrawal to the bar stated this—not verbatim, Judge—but that I felt it would be best for me to get this lawsuit behind me before I went on with my application to the bar and, therefore, I‘m withdrawing it at this time.” Tr. of Aug. 15, 2001 Magistrate Mot. Hr‘g at 9. At this hearing, in response to questions from the Magistrate, Dean clarified that he was not alleging that Byerley actually did anything to prevent him from being admitted to the Bar or that he would do that. Id. at 8. And he confirmed that he had not withdrawn his application because of fears that Byerley would block the application. Id. at 9–10. (Dean apparently has since become a member of the Missouri Bar.)
In August 2001, Byerley filed a Motion for Summary Judgment, which the Magistrate recommended granting. In
The district court agreed with this recommended disposition of the case but for different reasons. It concluded that Dean‘s
II. ANALYSIS
To obtain relief under
There are two ways to construe Dean‘s objection to Byerley‘s conduct, and neither of them suffices to establish a cognizable
The second possibility, and the more probable one, is that Dean believed Byerley‘s conduct amounted to a threat of retaliation if Dean continued to picket. That is to say, Dean complains that Byerley threatened to undermine his efforts to become a member of the State Bar if Dean continued picketing at the Byerley home. A retaliation claim under
Dean cannot satisfy the first or second prong of this test. As Frisby v. Shultz, 487 U.S. 474 (1988) makes clear, his targeted residential picketing on the morning of March 27, 2001 did not amount to constitutionally protected conduct. And in view of Byerley‘s letter of March 29, 2001 (which removed any threat of retaliation) and in view of Dean‘s
A. Dean Did Not Have a Clearly-Established Constitutional Right To Engage In Targeted Residential Picketing.
At issue in Frisby was a residential picketing ordinance enacted by the town of Brookfield, Wisconsin. The ordinance made it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual” and was designed to “protec[t] and preserv[e] the home” by ensuring “that members of the community enjoy in their homes . . . a feeling of well-being, tranquility, and privacy.” 487 U.S. at 477. The Town Board also believed that “the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants . . . [and] has as its object the harassing of such occupants.” Id.
In reviewing the ordinance, the Court first determined that it was “content neutral,” which is to say it banned all residential picketing regardless of the subject matter of the speech. Id. at 481–82. The Court then applied the familiar time-place-and-manner test applicable to content-neutral regulations of speech in traditional public fora. Writing for the Court, Justice O‘Connor first reasoned that the ordinance left open “alternative channels of communication” as it applied only to picketing directly in front of a single residence. Id. at 483–84. She then explained that the ordinance served a “significant government interest” because “‘the State‘s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.‘” Id. at 484 (quoting Carey v. Brown, 447 U.S. 455, 471 (1980)). That was particularly true in the context of a ban on targeted residential picketing, she added, given the importance of “protect[ing]” “unwilling
Fifteen years after Frisby, it is difficult to understand how Mr. Dean can claim that he had a constitutional right, let alone a “clearly established” constitutional right, to engage in what he acknowledges was targeted residential picketing of the Byerley home on the morning of March 27th. That conclusion seems not just improbable but impossible in the aftermath of Frisby, a decision that to my knowledge uniformly has been followed by the lower courts in the last decade and a half.
Making the parallels between this case and Frisby more salient still is the existence of a Michigan statute that, like the ordinance in Frisby, specifically bans residential picketing. As the majority points out, the parties’ briefs in the district court and in this Court seemed to assume that Michigan does not ban targeted residential picketing. Apparently, in the State‘s view of this dispute, the existence of Frisby as well as the general prohibition against trespassing on private property sufficed to reject this constitutional claim. Appellee Br. at 20, 23–24. When this line of thinking was challenged at oral argument, counsel for Byerley insisted that Michigan law
Further review confirms that a Michigan statute does prohibit private residential picketing. Under
The majority concludes that this provision does not apply here because it should be construed to apply only to picketing regarding labor-related matters. Maj. Op. at 9. I disagree with that conclusion. Dean was picketing about a matter related to labor and employment—namely, his effort to become a lawyer in the State of Michigan and his effort to be available for employment in that profession. When individuals attempt to become members of the legal profession, as when they are regulated in the profession, they are involved in a matter of labor—or at least employment. That is particularly true here in view of Dean‘s apparent claim that employees of the Michigan Bar showed an age bias against him in discussing his application with them.
The provision, at any rate, plainly covers all forms of picketing, whether employment-related or not. While the provision appears in a chapter of the Michigan Code labeled “Labor Disputes and Employment Relations,” the statute by its terms applies to all residential picketing: It refers to all “picketing” of any “private residence” and “by any means or methods whatever.” Id. A statute that comes with these kinds of explicit directions leaves no room for discretion—whether that discretion is invoked on the basis of the title of the law or its preamble. For neither the title of a statute nor the preamble of a bill has the capacity to impose a limitation that the statute explicitly removes. See Pa. Dep‘t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (“The title of a
Nor does the preamble or title of this law—even if one of them could alter the plain meaning of the statute—lead to a different conclusion. The preamble (as amended in 1947 when the residential picketing ban was added) says only that the bill is designed generally to “limit the right to strike and picket.”
The surrounding legislative text of the provision also fails to change matters. Once again, it seems doubtful that surrounding text by itself ever could alter language as plain as this. See Field v. Mans, 516 U.S. 59, 67 (1995) (cautioning that a contextual inference “should not be elevated to the level of interpretive trump card“); Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[A] court should always turn to one, cardinal canon before all others[,] . . . that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.“) (internal quotations and citations omitted); Browder v. Int‘l Fidelity Ins. Co., 321 N.W.2d 668, 673 (Mich. 1982) (“A basic rule of statutory construction is that where the Legislature uses certain and unambiguous language, the plain meaning of the statute must be followed.“).
This context-based argument also raises more interpretive questions than it answers. While two of the four prohibited activities covered by
It shall be unlawful (1) for any person or persons to hinder or prevent by mass picketing, unlawful threats or force the pursuit of any lawful work or employment, (2) to obstruct or interfere with entrance to or egress from any place of employment, (3) to obstruct or interfere with free and uninterrupted use of public roads, streets, highways, railways, airports, or other ways of travel or conveyance, or (4) to engage in picketing a private residence by any means or methods whatever: Provided, That picketing, to the extent that the same is authorized under constitutional provisions, shall in no manner be prohibited. Violation of this section shall be a misdemeanor and punishable as such.
(Emphasis added.) In view of the legislature‘s decision to specify a labor-and-employment orientation as to some prohibitions, but not as to others, the customary rule of interpretation is to assume that the legislature meant to give force to the differential language. See Russello v. United States, 464 U.S. 16, 23 (1983); Cherry Growers, Inc. v. Agric. Mktg. & Bargaining Bd., 610 N.W.2d 613, 622 (Mich. Ct. App. 2000).
Nor does adherence to the plain terms of this statute lead to an “absurd result,” which is the only other possible explanation for disregarding words as clear as these. See, e.g., United States v. Rodgers, 466 U.S. 475, 484 (1984) (plain language controls unless it leads to “absurd” results); Brandon Charter Township v. Tippett, 616 N.W.2d 243, 246 (Mich. Ct. App. 2000) (same). After all, the Michigan Legislature surely could have taken the view that a statute that proscribes all residential picketing on all topics of speech was not only fair—because it would avoid favoring one subject of speech over another—but it was the only choice available. A law that banned residential picketing when, and only when, the message of the demonstrator concerns labor would be patently unconstitutional. See Carey v. Brown, 447 U.S. 455 (1980) (invalidating a restriction on picketing that applied to all subjects, except labor, as impermissibly content based); Frisby, supra (upholding ban on targeted residential picketing because, among other reasons, the ban was content neutral). Far from being unusual to include a complete ban on targeted residential picketing in a bill about labor and employment issues, then, it was the only choice the Michigan Legislature had.
In the face of Brown and Frisby and in the face of the general prohibition against content-based regulations of speech, the doctrine of constitutional avoidance resolves any remaining doubts about the meaning of this law. Indeed, in Frisby itself, which also involved a criminal law, 487 U.S. at 477, the Court applied the same doctrine in construing the law at issue to apply just to targeted residential picketing. Id. at 482 (“The precise scope of the ban is not further described within the text of the ordinance, but in our view the ordinance is readily subject to a narrowing construction that avoids constitutional difficulties.“). And in Frisby, the Court also accepted “the lower courts’ conclusion that the Brookfield ordinance is content neutral” and rejected an argument that
Informed by Frisby‘s (and Boos‘s) example of minimizing rather than accentuating the potential infirmities of a law, I would follow a similar course here. The statute at issue makes it unlawful “to engage in picketing a private residence by any means or methods whatever.” In the confines of this straightforward language, the statute cannot be narrowed to ban “picketing a private residence on matters of labor and employment by any means or methods whatever“—which is not what the statute says (or even suggests) and which no rule of construction with which I am familiar permits. An alternative approach would not only create a potential constitutional claim in this case against Mr. Byerley but would also invalidate the Michigan residential picketing statute—a two-for-the-price-of-one constitutional ruling that cannot coexist with the salutary premises of the constitutional avoidance doctrine.
This is all the more true in a qualified immunity setting where the question is not just whether Dean had a right to
In addition to failing to show that he was engaged in constitutionally protected conduct, Dean also has failed to show that Byerley took an “adverse action” against him that would deter “a person of ordinary firmness” from continuing to engage in the challenged conduct. Recall that just two days after this confrontation and before this lawsuit was filed, Byerley sent Dean a letter indicating that he was free “to exercise [his] First Amendment rights” so long as he did so on public, not private, property. In the aftermath of this letter, which Dean does not deny receiving and to which Dean never responded, the fact dispute of whether Dean picketed on private or public property becomes irrelevant. The letter makes clear that the picketing could continue, just not on Byerley‘s property. No rational juror could read this letter to say that Dean would still be at risk (from Byerley at least) by continuing to picket on public property.
Had Byerley followed through on his alleged threats, to be sure, his acts would have constituted “adverse action” of a constitutional magnitude. See, e.g., Hoover v. Radabaugh, 307 F.3d 460 (6th Cir. 2002) (terminating a public employee is an adverse action); Farmer v. Cleveland Public Power, 295 F.3d 593, 602 (6th Cir. 2002) (reducing a public employee‘s job responsibilities is an adverse action). But Byerley did not deny or obstruct Dean‘s Bar application or have Dean arrested. He allegedly just threatened to do so, then retracted the threat two days later.
Marginalizing his claim still further (and mooting his claim for injunctive relief), Dean concedes that he withdrew his Bar application voluntarily, not because of fears that Byerley would block it. Never to my knowledge has this Court found “adverse action” with respect to events as inconsequential as these. And, indeed, the extension of
Like the district court before us (and the Magistrate as well), I believe that Dean‘s First Amendment claim fails as a matter of law. As these views have garnered a majority of one, I respectfully dissent.