*1 supports trial finding record
Dijan organizers and Marzullo were or lead activity
ers of a criminal within meaning 3Bl.l(a).
of Section
IV. granted
Marzullo was leave to file a brief
pro issues, se in which he raised several
some of which were addressed his attor-
ney’s brief and have been considered above.
We have reviewed the additional issues Mar-
zullo raised his brief and find none of them
to have merit.
V. given,
For the reasons we affirm the con- Dijan
victions of and Marzullo and their sen-
tences. BROWN, Appellant,
Isaiah COUNTY, Iowa, Municipal
POLK Cor-
poration; Ray Sears, Former County;
Administrator for Polk Supervisors, Appellees. Board of
No. 93-3313.
United States Appeals, Court of
Eighth Circuit. April
Submitted 1994.
Decided Oct. 1994.
Rehearing Granted; En Banc Opinion and
Judgment Vacated Nov. *2 Supervisors,
Board and his super former visor, County (col Ray Administrator Sears lectively County). alleged County violated Title terminating VII him *3 because of his race and religion. his Brown also brought § 42 U.S.C. alleging claims County Polk violated his First Amendment rights of expression freedom of and freedom Following trial, a bench the dis trict court held Brown failed to Polk show County violated Title VII or 42 U.S.C. § 1983. Brown v. County, (S.D.Iowa 1993). appeals Brown and we affirm. explained
The district court the facts of detail, this case in id. at and we only will summarize them here. Brown was promoted to ISD director in In 1986. this capacity, responsible Brown was planning and organizing County’s process- data ing operations and supervising fifty about processing data employees. Ray Sears, supervisor, immediate reviewed performance annually. Brown’s evaluations were mixed and reflected Sears’s concern about scheduling and departmental morale. command, Under Brown’s the ISD was far behind schedule. The mismanage- significant was so County hired an outside consultant to review the department. The consultant recommended a departmental total restructuring, which in- eliminating volved positions eleven lay- twenty-five off employees. There was a rift in the ISD between the Wright, Robert A. Moines, IA, Jr. Des employees who born-again Christians (Nathan argued W. Stephen Kellum and M. like Brown employees and the who were not. Crampton, Tupelo, MS, brief), on the for Beginning Brown had held Bible appellant. study meetings employees with before work Godwin, Moines, Mark IA, Des argued, for in the Polk County building. Administration appellee. study The Bible stopped, later group but the still pray met to or talk in Brown’s office. FAGG, HANSEN, Before and MORRIS Those who were born-again Christians ARNOLD, SHEPPARD Judges. Circuit Brown believed would terminate during them the restructuring they because did not share FAGG, Judge. Circuit his faith. After hearing rumor, this Brown Isaiah Brown is a black man who describes departmental held a meeting and told the himself as a born-again Christian. After employees he would not consider employ- County terminated employment his ee’s views making when the termi- director of Information Services nation decisions. After the restructuring, Department (ISD), brought Brown ac Brown met with the rehired employees in against tion Polk the Polk May Referring 1990. study, his Bible ability freely. they to exercise his employees should work Id. told the sloth- the Bible directed and hard as
ful. challenging the district court’s decision County did that Polk not violate First Department Personnel rights, dispute Amendment Brown does complaints in received Administrator findings, the district court’s factual but at inappropriate about summer 1990 tacks the district request, the ISD. At Sears’s activities Ford, Citing conclusions. Hall investigat- Manager County Labor Relations (D.C.Cir.1988), report manager’s complaints. ed the case, only Brown asserts he need show his per- prayer meetings, Brown held stated *4 employment on compro was conditioned the counseling, had sec- religious and his formed right. mise of a constitutional Brown seems type study the retary Bible notes. Based on speech to assert his free exercise free in report, writing reprimanded Sears Brown Later, rights argues are absolute. Brown 1990, ordering to end his use July in Brown to overcome First his Amendment religious a support of resources to rights, government the must it a show had organization. compelling it used interest and the least re officefor Sears later visited Brown’s When achieving compelling of strictive means its development committee systems a review v. the interest. Thomas Review Bd. Ind. of religious objects. meeting, Sears saw some Div., 707, 718, 101 Employment Sec. 450 U.S. According him “take Sears told (strict (1981) 1425, 1432, 624 S.Ct. 67 L.Ed.2d your your away things on wall and on standard). Thus, scrutiny we must decide may be considered offensive desk legal apply public which standards a em complied pro- employees.” Brown without ployee’s speech free free claims. want- test. Brown testified because he legal controlling The standard comply, he his Bible from a ed to removed speech Although free claim is clear. it. and asked about desk drawer Sears government employees relinquish do not said, goes, “That too.” Because Sears Sears speech rights a their free condition of keep the entire ISD free of told employment, public the First Amendment is materials, employee also religious another not a license for interference with the personal religious items. Brown’s removed functioning workplace. of Connick v. management problems continued. In De- 138, 140, 1684, Myers, 461 103 U.S. S.Ct. 1990, investigated again the ISD was cember 1686, (1983); 708 see Grantham 75 L.Ed.2d explicit sexually personal material and after 21 Trickey, v. F.3d 292 games employees’ com- were on discovered government’s legitimate regu interest puters. public employees lating speech greater for is Connick, Noting County’s duty general than for citizens. See to ensure govern religious 1686. The remain neutral about U.S. at 103 S.Ct. at administrators matters, strong avoiding ment has a the district court balanced Brown’s work, employee speech First of with against Amendment interference First relationships, employee’s personnel and the prohibition on the establish- Amendment’s McPherson, job performance. Rankin ment of and the free exercise 2891, 2899, 378, 388, 107 co-employees. of The district court U.S. (1987). regula free free L.Ed.2d 315 To decide what concluded neither the exercise nor employee’s is protected public re- tion of a constitu expression guarantees a ligious activity tionally permissible, court balances on time or with Coun- on. employee’s ty case-by-case interest as at 1315-16. The basis facilities. public commenting items on matters district court further held the removed citizen government’s type symbolic and the interest as ex- concern did not constitute the Amendment, promoting public servic pression protected by employer in efficient the First Educ., Pickering v. 391 U.S. es. Board and Brown failed to show the removal 20 L.Ed.2d from his inhibited his 88 S.Ct. items office Kennett, City operations outweighs Shands Brown’s interest in ex (8th Cir.1993), cert. pressing F.2d de beliefs to his subor — — nied, -, 114 S.Ct. Finally, if dinates at work. reli even L.Ed.2d-(1994). balancing This accom gious items removed from Brown’s office public employer’s dual role modates the symbolic expression, protected provider public government and a service balancing applies same and defeats entity operating under the First Amend Brown.
ment’s constraints.
We now consider the
standard
Brown’s reliance on Hall for an absolute
applicable to Brown’s free exercise claim.
speech right misplaced.
Brown selec-
Supreme
long recognized
Court has
quotes
language stating
tively
general
distinction
between
freedom individual
employment
cannot condition
religious belief
freedom individual
compromise
right.
of a constitutional
Roy,
conduct. Bowen v.
Hall,
very
at 262.
next
693, 699,
2147, 2151-52,
90 L.Ed.2d
sentence, however, the court
in Hall ex-
Clause,
Under the Free Exercise
plained
principle
gov-
is limited
absolute,
an individual’s
freedom belief is
*5
legitimate
ernment’s
op-
interest
efficient
but an individual’s freedom of conduct
not.
is
erations.
Id. at 263. Brown’s failure to
words,
Id.
In other
individuals do not have
acknowledge
legitimate
this
limitation is the
an
right
practice
absolute
to
their chosen
pervading
flaw
basic
his First Amendment
they please.
Rushton v. Nebras
arguments.
Dist.,
(8th
562,
ka Pub. Power
564
Having
controlling
identified the
stan Cir.1988).
.however,
Beyond
point,
this
dard, we turn to the merits of Brown’s free
Supreme
law is less clear. The
Court has
speech
County
claim. Brown asserts Polk
legal analysis
never
governing
identified a
right
speech by
to
directing
violated his
free
employment
whether an adverse
in
action
him
from prayer
stating
to refrain
and
fringes
public employee’s right
a
to
ex
free
Christian beliefs. We think Brown reads
ercise
Although
apply Pick
we
a
County’s
broadly.
directive too
ering balancing analysis in the
context
reprimand
stop
written
directed Brown to
public employees
speech,
and free
it
un
is
using
County
support
resources to
analysis
clear
applies
what
in the context of
promote
religious organization,
a
and to en
public employees and free exercise of reli
sure the work environment was
free
reli
gion. Brown believes the district court
gious proselytizing, witnessing, and counsel
general
have
a
scrutiny
should
used
strict
ing.
language
encompass
This
does not
analysis.
private prayers,
or Brown’s activi
County
ties
time
property.
off
right
to free
reli
exercise of
*
speech
gion
asserts his
is a matter of
right.
is a fundamental constitutional
public concern,
Robison,
but
361,
14,
we need not decide this
v.
Johnson
415 U.S.
375 n.
preliminary
1160,
14,
issue. Because the district court
94 S.Ct.
n.
1169
409
See,
Picciano,
e.g., Langlotz v.
683
ees.
and intimate association.
association
sive
(E.D.Va.1988),
1558,
1041,
Sharrett,
F.Supp.
aff'd,
1048
905
v.
McCabe
See
Cir.1990)
(4th
Cir.1994)
cases).
opin
(unpublished
(11th
Despite F.2d 1530
(discussing
Kent,
ion);
however,
Supreme
Spratt
rule,
v.
general
(W.D.Mich.1985),
aff'd, 810 F.2d
strictly
public em
scrutinize
does
Court
Cir.1986)
(6th
opinion),
(unpublished
cert.
on certain fundamental
restrictions
ployers’
denied,
107 S.Ct.
public employees. As
480 U.S.
rights of
constitutional
(1987).
Supreme
This is the test that the
explained,
already
have
examining
applied in Brown’s
See
when
district court
ease.
special analysis
uses
Court
F.Supp. at 1315-16.
employee expression.
public
restrictions
Supreme Court
supra at 407-408. The
See
view,
analy-
Pickering
In our
modified
analysis for review
special
also
has
devised
general
appropriate
is
than a
strict
sis more
public employment decisions
ing adverse
To
scrutiny analysis in this
the extent
ease.
patronage reasons. See
political
made for
Pickering
viewed as more
that the
Burns,
96 S.Ct.
Elrod
public employer
than
deferential
Finkel,
Branti
49 L.Ed.2d
general
scrutiny analysis, we see no
strict
speech or
to defer when fundamental
reason
political
but not
affiliation
are involved
scrutiny analy
free
are
stake.
applied the
when
have
strict
We
McCabe,
Pickering’s,
F.3d
governmen
at 1567.
ratio-
challenges
to free exercise
sis
employer
public employment
nale—that the
con
action outside
tal
Arkansas,
special
regulating
its em-
has a
v. State
E.g., Murphy
text.
Cir.1988)
(8th
disruption
1039, 1041
(reviewing
ployees’
to avoid the
behavior
*6
public functions—applies to free exercise
School
challenge to Arkansas Home
exercise
Act).
speech rights.
See id.
any challenge
of
well
free
In the absence
standard,
applied
Pickering
have
scrutiny
applied the
at 1568. Courts
we once
strict
in
analysis
the
context
cases
public employees
outside
to decide whether
standard
rights,
involving
association
liber-
drug-
expressive
exemption
an
should receive
rights.
id.
ty rights,
free exercise
See
at
religious grounds.
testing
program on
eases);
(discussing
Langlotz, 683
Rushton,
the other
4H Iowa, showing specific F.Supp. it. v. Polk present 832 tiff must evidence 1993). 1305, 1316, (S.D.Iowa discriminatory n. 22 It and the 1316 animus link between North, decision); county’s decided the v. GTE nevertheless that action challenged Parton 150, (8th Cir.1992) Inc., (plain was not unconstitutional. court also F.2d 153 971 today County may lawfully holds employer “actually on that must show relied” tiff employees making employ any order one “cease ground in adverse improper decision). activity agree the that could be considered to be We with district reli- witnessing, gious proselytizing, or produce evidence counsel- court that Brown did ing” workplace. I cannot directly based subscribe to shows conclusions, nor religion or his these court’s failure termination on his Brown’s give scope and dimension Mr. race. religious expression. Second, tried because this case was merits, we need concern ourself I. Douglas or with whether McDonnell applies. Kientzy I that it is well believe established Price Waterhouse test 1051, Corp., right religion Douglas free exercise is McDonnell Cir.1993). See, (8th Instead, only right. e.g., fundamental Johnson Ro need bison, 1160, 415 U.S. n. S.Ct. review ultimate factual issue whether County intentionally discriminated n. That case, being or must demon against Brown on the basis of race Inc., id.; compelling Empiregas, strate a state interest before it Finley v. compelling can inhibit that After exercise. While interests, beauty, may mainly trial, like well lie the district court found bench beholder, eye pressed is of the one hard inadequate performance was the reason to find such interest here. his termination. 832 county’s ultimate identification of We conclude district court’s avoiding a finding not discriminate violation of Establishment that Polk did sufficiently im- religion compelling Clause violation as against Brown on his race based Henry permissibly neutrality shifts the fulcrum clearly is See Tuttle v. erroneous. (8th Co., simply much far in one It Cir. too direction. J. Kaiser review). 1990) (standard Having not an to allow indi establishment reviewed signifi display issue, viduals to items of ultimate we need not consider offices, partly finding cance in their because this is attack on the district court’s (see part county not an action on the of the not have accommo-- could Kurtzman, expres Lemon v. dated Brown’s activities *8 (1971)); and there is hardship. sion without undue argument in a colorable that Bible F.Supp. at 1314. even (even by govern a desk a desk owned argu- all We have considered of Brown’s ment) separation wall of that breaches the rejected Accordingly, and them. ments government must maintained and be between affirm district court. Besides, if it an establishment merely to of religion of allow these kinds ARNOLD, SHEPPARD Circuit MORRIS activities, county complete would have a Judge, dissenting part. in that, say this lawsuit: It could it answer to today The court holds that legally compelled was to issue the relevant Iowa, may lawfully employ- order of its one unnecessary directive, rendering thus it to that to remove from his office all items ees “interest” that divine some so-called and, religious faith more manifest his even county had at stake. incredibly, may him to direct remove (and in might, in the an The district One abstract Bible from his desk drawer. ' case), heavy- sympathize with the defen charitably appropriate court characterized easy overzealous,” always and that it is “arguably dants the sense handedness as Scylla by being to steer a correct course between confessed to “somewhat troubled” i—i Charybdis Religion of the Clauses. But quoting directly, hostility exhibits a to reli county has not qualified claimed immuni gion by government that our Constitution ty, perhaps of because its blind inability to quite clearly prohibits. It would seem to any Free Exercise interests whatever at require no argument'that speech to forbid here, position stake completely, consonant “that could be considered” is not unfeeling
with its disregard of Mr. Brown’s narrowly tailored to the aim of prohibiting rights and of its own duties under the Consti harassment. If Mr. Brown asked someone tution. Nor do I think that county could church, to attend his instance, for sup one have if succeeded it qualified had claimed poses that that “could be prose considered” immunity. seems to have been lytizing; prohibition but its runs of afoul bent giving government on sanction to the Free Likewise, Exercise Clause. a state attitude religion that is simply place out of ment to the effect that one’s was the office. certainly Citizens are free to important in one’s life “could be considered” and, course, believe this statutory absent witnessing; yet to forbid it regulation contrary, give effect would be unconstitutional. principle that voluntary their associations. they What are not free to do is to enlist the The court directly does not address these aid of government in imposing such restric arguments, but seems to indicate that tions on fellow workers. The conduct of the desire to avoid establishing religion provides defendants here seems to egregious me so a sufficient complete excuse for a prohibition obviously illegal as almost to furnish any activity that “could be considered direct evidence of an anti-Christian animus religious.” above, As I indicated that hold on part. Brown, their Mr. moreover, has ing strikes the balance between the Religion asked for declaratory judgment that way Clauses in a that order unconstitutional, relevant trenches was unconstitu a claim is, course, tionally ground subject occupied being defeat the Free Ex by qualified ed See, immunity. e.g., ercise Wood v. Clause. Our recently court occa had Strickland, 314-15 n. 95 sion explore boundary between the 996-97 n. L.Ed.2d two clauses Good Sports Club News/Good Malik (9th 335 n. 4 v. School District City Ladue, Cir.1994); Zieba, Mumford (8th Cir.1994), in which the court held that allowing a religious organization premises use school did not amount to II. an establishment of religion. Id. at 1510. may
One for the concede sake of argument The court concluded that merely permitting has a right or duty to express someone a religious view was not ensure that workplace harass establishment religion, noting that behavior any nature. But “there is a crucial difference govern between interference with activity that the endorsing religion, which the discharge of duty entails must be rea forbids; Establishment Clause and private sonably related to that discharge and must speech endorsing religion, which the Free narrowly tailored to its achievement. *9 Speech and Free Enterprise pro Clauses Thomas v. Review Board Indiana Em tect.” Id. at 1509 (quoting Westside Com ployment Sec., 707, 718, munity Bd. Ed. v. Mergens, 496 1425, 1432, L.Ed.2d Here, 226, 251, 110 2356, 2372-73, 110 S.Ct. there was attempt least to confine the (1991)) (plurality opinion J.). prohibition by O’Connor, to harassing or intimidating succinctly, speech, More as Justice narrowly to O’Connor prohibited define indicat ed, activity. Instead, id. at County baldly “[t]he direct ed Mr. proposition Brown to [governments] “cease any activity that that do not en could be considered prosely everything they dorse fail to censor is not tizing, witnessing, or counseling” (emphasis complicated.” Mr. Brown is here, speaking supplied). order, This which the court avoids not Polk County.
III. MONTGOMERY, Debtor. George C. In re about this unsettling to me is most What the court approach that antiseptic is the case MONTGOMERY, Appellant, George C. as proceeds It its resolution. takes apolitical of an application though a routine scientifically ineluct- RYAN, Appellee. yield a could Norah arithmetic this case dispute that solution able No. 94-1385. of constitutional modes presents. Given rightly quite the court by which Appeals, Court United States necessarily bound, had the court itself deems Eighth Circuit. balancing act to sort of some engage in Sept. 1994. Submitted (It is, clear. much is case. So decide outside moreover, think difficult 6, Oct. Decided useful- utility: right’s A governed a world econom- welfare ness, in the abstract at least scope that sense, may influence well
ics nuisance that the amount give to it and to tolerate compelled feel
we will
exercise.) produced the tradition But took one that Rights was Bill of
our govern- healthy suspicion
seriously, and a respect for individual a robust
ment and gave that values
autonomy this real- It is shape and texture. tradition it, act on
ization, unwillingness to tbie court’s missing from to be to me
seems subjected to “balanc- being
opinion. After “in- “weighing,” the identification
ing” and “tests,” Mr.
terests,” application shuffle, lost in the simply rights are reduced “prong,” and some
impaled on They merely expendable desiderata.
level of weight given to be their
ought instead proper constitu- expressions of critical boundary the state between
tional
individual. of the district so much reverse
I would rejected Mr. judgment
court’s other and affirm claims
Free Exercise he from which judgment
parts of the
appeals.