John A. MITCHELL, Plaintiff-Appellant, v. Bruce KING, Governor of the State of New Mexico, et al., Defendants-Appellees.
No. 75-1412.
United States Court of Appeals, Tenth Circuit.
Argued March 24, 1976. Decided June 22, 1976.
537 F.2d 385
Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, N. M. (Toney Anaya, Atty. Gen., Santa Fe, N. M. on the brief), for defendants-appellees.
Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.
BARRETT, Circuit Judge.
John A. Mitchell (Mitchell) appeals from the Order of the District Court granting appellee’s Motion to Dismiss the Complaint and cause of action for failure to state a claim upon which relief can be granted.
When a complaint and action are dismissed for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974); Hudson v. Harris, 478 F.2d 244 (10th Cir. 1973); Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). A motion to dismiss under
Mitchell claims jurisdiction under
Allegations of Complaint
Mitchell’s complaint alleges: That on or about July 20, 1971, then Governor Bruce King (King) appointed him (Mitchell) to the Board of Regents of the Museum of New Mexico to serve a six-year term pursuant to
Trial Court Disposition of Motion to Dismiss
The Trial Court granted the Motion to Dismiss after the respective parties filed detailed briefs. The Order regarded all of the allegations of the complaint as facts. The Court found that Mitchell’s claims are grounded upon three separate legal theories: (1) that the defendants wrongfully removed Mitchell from the office of Regent of the Museum of New Mexico contrary to the law of New Mexico; (2) that his removal from the office of Regent deprived him of property and liberty interests without due process of law, contrary to the Four-
The Court found, in granting the motion to dismiss, that (a) Mitchell has no protected property interest in the office of Regent by virtue of
Appellate Contentions
On appeal, Mitchell presents the following contentions: (1) that his removal and revocation as an appointee Regent to the Museum of New Mexico was violative of his rights to free speech secured to him by the First Amendment to the Constitution of the United States and taken in retaliation therefore when he spoke out; (2) that his removal and revocation as Regent aforesaid for causes set forth in the New Mexico Constitution, without notice and an opportunity to defend, constituted a deprivation of his property and liberty without due process of law guaranteed to him by the Fifth and Fourteenth Amendments to the Constitution of the United States and (3) that the complaint should not have been dismissed on the basis that it failed to allege any claims which would, under any state of facts, entitle Mitchell to relief.
I.
We focus initially on the rule that the construction of a state constitution or statute is a matter of state law and that the most authoritative construction is that made by the highest court of the state. O’Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974); Hardberger and Smylie v. Employers Mutual Liability Insurance Company of Wisconsin, 444 F.2d 1318 (10th Cir. 1971).
The Trial Court found that Mitchell had no protected interest in the office of Regent of the Museum of New Mexico by virtue of
The New Mexico Constitution vests “the supreme executive power of the state” in the governor.
. . . [T]he Governor had the power under section 5 of article 5 of the Constitution to remove Mr. Ulrick and
Mr. Chavez without hearing or notice, and the courts have no jurisdiction to pass upon the sufficiency or insufficiency of the evidence; the only judicial question being whether the cause assigned was a legal cause. The process of arriving at this conclusion is one of construction of our Constitution.
The Ulrick opinion further stated:
It is the Governor, the chief executive, who is held responsible to the sovereignty for errors in his executive and administrative policies. The appointee is responsible to the chief executive . . .
This Court has consistently held that when the interpretation of state law is involved, the federal courts must first determine whether the state courts have expressly passed on the issue and, if so, such decision or decisions provide clear precedence. United States v. Wyoming National Bank of Casper, 505 F.2d 1064 (10th Cir. 1974); Hardy Salt Company v. Southern Pacific Transportation Company, 501 F.2d 1156 (10th Cir. 1974), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974); Hardberger and Smylie v. Employers Mutual Liability Insurance Company of Wisconsin, supra. And the interpretation and construction of state statutes (and constitutions) by the highest courts of the states will be followed by the federal courts unless those interpretations are inconsistent with fundamental principles of liberty and justice. O’Brien v. Skinner, supra; Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied, Charlton v. Cox, 384 U.S. 976, 86 S.Ct. 1869, 16 L.Ed.2d 685 (1966); Goldsmith v. Cheney, 447 F.2d 624 (10th Cir. 1971).
For decisions from other state jurisdictions which have upheld the governor’s power of removal of a state appointee serving for a fixed term, without notice or cause, under provisions very much akin to
The courts have uniformly ruled that because the office of governor is political, the discretion vested in the chief executive by the constitution and laws of the State respecting his official duties is not subject to control or review by the courts. 38 Am.Jur.2d, Governor, § 10.
The New Mexico constitutional provisions cited, as construed and interpreted by the highest court of that state in Ulrick foreclose Mitchell’s claims unless there is merit in this allegation that his federally protected rights as guaranteed him under the Fourteenth Amendment to the Constitution of the United States have been violated. There must, of course, exist a substantial federal question which would give rise to federal court jurisdiction under the circumstances of the case. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
Furthermore, Mitchell sues for compensatory and punitive damages. Two recent Supreme Court opinions appear to be noteworthy in relation to Mitchell’s damage claims, independent of others hereinafter referred to. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) and Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) stand for the rule that a state public official is not liable for damages in a § 1983 action unless he knew or reasonably should have known that his action would have violated another’s federal constitutional rights. Such an official is under no duty to anticipate unforeseeable constitutional developments.
II.
Mitchell contends that his federally protected rights in property and liberty have been deprived him by reason of his
Mitchell relies heavily upon the broad, sweeping language in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) and Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) for the proposition that within the contemplation of the Fifth and Fourteenth Amendments, he had a property interest as a Regent entitling him to minimum standards or requisites of procedural due process before he can be removed as a Regent. We observe that members of the Board of Regents of the New Mexico Museum serve without compensation, are exempt from the state’s civil service system, and exercise broad policy-making powers over the affairs of the Museum.
We hold that Mitchell has no federally protected property or liberty interest in the office of Regent. Ulrick v. Sanchez, supra. Further, Mitchell, was subject to removal by King “for incompetency, neglect of duty or malfeasance in office”.
In the recent opinion entitled Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the United States Supreme Court held that Davis’ § 1983 action for damages against police chiefs who had distributed a “flyer” to area merchants which contained his name and photograph and identified him as one of the persons who had been arrested in 1971 or 1972 “or have been active in various criminal fields in high density shopping areas” with specific references to “shoplifting activity”, while establishing a claim of defamation of character, did not state an actionable claim under § 1983 because injury to reputation is not deprivation of a protected property or liberty right.
After the flyer had been circulated, the charge against Davis was dismissed by the judge. Davis contended that the actions of the police chiefs deprived him of “liberty” protected by the Fourteenth Amendment in that the “active shoplifter” label would seriously impair his access to business establishments, arouse suspicion upon his identification and seriously impair his future employment opportunities in violation of due process of law “mandated” by Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The Supreme Court concentrated on two contentions relied upon by Davis: (1) the Due Process Clause of the Fourteenth Amendment and (2) the infliction of a “stigma” to his reputation infringing upon his “liberty” and “property” rights as used in the Fourteenth Amendment. The Court pointed out that, to be sure, certain language contained in Wisconsin v. Constantineau, supra, could be taken to mean that if a government official defames a person, without more, the procedural requirements of the Fourteenth Amendment are brought into play. The Court in Davis, supra, observed—and quite pertinently in relation to the case at bar —that the governmental action complained of must deprive the petitioner of a right which has its genesis in state law, and the protective shield of § 1983 extends only to those interests which “attain this constitutional status by virtue of the fact that they have been initially recognized and protected by state laws, and we have repeatedly ruled that procedural guarantees of the Fourteenth Amendment apply whenever the state seeks to remove or significantly alter that protected status.” In a nutshell, the Court held that injury to reputation is not a deprivation of a federally protected property or liberty right.
The District Court’s reliance on Adams v. Walker, 492 F.2d 1003 (7th Cir. 1974), in support of this holding is well taken. There, the Illinois governor removed a
III.
We hold that Mitchell’s First Amendment claim, i. e., that his removal and revocation as a Regent was violative of his rights of free speech for speaking out in opposition to the position taken by the governor, is without merit.
This Court has held that public office or employment generally is held not to be a property interest within the meaning of the Fourteenth Amendment, and particularly so in those circumstances where no right to continued employment exists. Abeyta v. Town of Taos, 499 F.2d 323 (10th Cir. 1974).
It is fundamental that regulation and/or limitation of speech is permissible in order to meet the need of a substantial government interest. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Fisher v. Walker, 464 F.2d 1147 (10th Cir. 1972).
Mitchell held a policymaking office as a Regent. In addition to the unquestionable right of removal of Mitchell vested in the governor under the provisions of
New Mexico has recognized that non-policymaking officials are entitled to due process before they may be dismissed, but “members of boards and commissions and heads of agencies appointed by the governor” are not entitled to the State Personnel Act’s notice and hearing requirements preceding dismissal of state employees.
WE AFFIRM.
BREITENSTEIN, Circuit Judge (concurring in the result).
I concur in the result but cannot concur in much of the supportive reasoning. I am particularly disturbed by the discussion of the decision of the Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The statement that, “the governmental action complained of must deprive the petitioner of a right which has its genesis in state law, and the protective shield of 1983 extends only to those interests” is followed by quotation
“There are other interests, of course, protected not by virtue of their recognition by the law of a particular State, but because they are guaranteed in one of the provisions of the Bill of Rights which has been ‘incorporated’ into the Fourteenth Amendment. Section 1983 makes a deprivation of such rights actionable independently of state law. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).”
I agree with the quoted footnote and am fearful that its omission may lead to a misunderstanding of the extent of the rights protected by § 1983.
Judge BARRETT expresses his agreement with the observations contained herein interpretive of Paul v. Davis, supra.
WILLIAM E. DOYLE, Circuit Judge (concurring).
I specially concur in the opinion of Judge Barrett.
The ingredient of the state of mind of the violator of Section 1983 is considered in the opinion. This is purely gratuitous. Intent is in no way an element which is present here. The determinative holding is that the alleged right is non-existent. Is this not sufficient?
Insofar as the opinion rules that the claim of Mitchell rests on a possible property right (which proves to be non-existent) having its origin under state law, and as such is dependent on the due process clause of the Fourteenth Amendment, I agree.
I also agree that the state’s highest court’s construction of its laws binds us on the adequate state ground doctrine at least to the extent that it does not violate superior Federal doctrine. I object, though, to sweeping with a broad broom in this area so as to give the impression that state law governs the shape and form and content of rights granted by an Act of Congress and, particularly, a venerable one like Section 1983.
I must disagree with the construction given by the opinion to Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). The opinion emphasizes that defamation is not to be given constitutional status. This is true if it is defamation which stands alone, is unaccompanied by a companion right. The language of the opinion is again too sweeping. It is incorrect to underline the sentence that the right protected in a Section 1983 action must have its genesis in state law. The opinion overlooks the explanatory footnote number 5 found in 96 S.Ct. at 1165, which reads as follows:
There are other interests, of course, protected not by virtue of their recognition by the law of a particular State, but because they are guaranteed in one of the provisions of the Bill of Rights which has been “incorporated” into the Fourteenth Amendment. Section 1983 makes a deprivation of such rights actionable independently of state law. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
Our discussion in Part III is limited to consideration of the procedural guarantees of the Due Process Clause and is not intended to describe those substantive limitations upon state action which may be encompassed within the concept of “liberty” expressed in the Fourteenth Amendment. Cf. Part IV, infra.
Thus, invasions proscribed in the Bill of Rights are protected.
In summary, I voice my reservations to the apparent tendency of the opinion to expand and exalt the state’s role in defining federally protected rights.
I repeat that I do not question the conclusion that the plaintiff-appellant here lacks any semblance of a right.
Judge BARRETT expresses his agreement with the observations contained herein interpretive of Paul v. Davis, supra.