Sarah Gable v. Ronald G. Lewis Kenneth T. Woehrmyer, Roger Hannay

769 dissеnting. COLE, Judge, Circuit Plaintiff-Appellee, GABLE, Sarah majority opinion with the

I reasoning of I find case because this v. in United Tenth Circuits and the Ninth (9th Cir. Marolf, States LEWIS; T. Kenneth Ronald G. States, 1999) Clymore United and Woehrmyer, Defendants- F,3d Cir.1999) persuasive more Appellants, in Boero decision Circuit’s than the Second Administration, 111 Drug Enforcement al., Hаnnay, Roger et Defendants. Cir.1997). (2nd F.3d 301 No. 98-3819. Boero, stated, majority theAs notices defective held that Second Appeals, United States as voidable should be treated appeal Circuit. Sixth void, tolling the stat- thereby than rather judicial filing of limitations for the ute 3, 1999. Argued: Nov. seeing disagree, proceedings. forfeiturе of a the merits to determine reason no 13, 2000. and Filed: Jan. Decided no- original when the forfeiture challenged constitutionally defective tice Inadequate run. limitations has

statute constitutionally defec- void and

notice instance, no simply there is

tive. five-year statute disregard

reason § in 19 U.S.C. set forth

limitations when the rare occasions

short applica- valid has a basis

ernment tolling. Such equitable or of laches

tion re- a claimant the case when

would be on a Rule and sits borderline notice

ceives

41(e) five-year statute motion ‍‌‌‌‌‌‌​‌​‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​​​‌‌‌​​‌​‌​​‌​​​​​​‍until run, scenario has

limitations fears.

majority courts should be Marolf,

As noted stat- wary of civil forfeiture

“particularly pen-

utes, ‘quasi-criminal’ they impose owners affording property without

alties afforded procedural protections

all of the F.3d at defendants.”

criminal omitted). Further,

(citation quotаtion to be dili- ought process protections

“[d]ue relaxed, enforced, no means

gently traditionally disfa- party seeks the

where Clymore, remedy of forfeiture.”

vored (citation omit- quotation

F.3d at reasons,

ted). respectfully For these majority opinion. from

dissent

fendant, Lewis, Ronald an official of the Patrol, Ohio Highway retaliated by her removing her from patrol’s towing referral list because she had filed the state an official written complaint of sex discrimination in the allo- patrol’s cation of the automоbile towing business. Her retaliation claim was brought as a violation of petition clause of the First Amendment which bars ernment from “abridging ... right ... people petition the government for a grievances.” redress of After a trial, three-day found that defendant guilty of ‍‌‌‌‌‌‌​‌​‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​​​‌‌‌​​‌​‌​​‌​​​​​​‍violating peti- tion clause when he removed her frоm the towing list retaliation for filing her dis- crimination complaint. The jury awarded $55,000. damages of appeal, On we take as true these facts by as found the jury. presents defendant two issues of First, law appeal: argues he that the petition clause inapplicable is griev- her ance patrol filed with the because “only speech concerning ‘public matters of con- Alphonse A. (argued Gerhardstein cern’ is protected from retaliatory con- briefed), Laufman, Gerhardstein, Rauh & by duct” petition plain- clause and that Cincinnati, Ohio, Appellee. for tiffs complaint discrimination personal Adlеr, to her Allen P. and is not Attorney asst. such matter of (argued concern,” briefed), required as Jeffery (briefed), W. Clark Connick v. Myers, 138, 145-48, R. 461 U.S. (argued), Todd Marti Office of At- (1983). General, torney Second, 75 L.Ed.2d 708 Litigation Corrections he Section, Columbus, Ohio, argues that the defendant Appellants. entitled to

qualified immunity because the “constitu- NELSON, Before: MERRITT and tional right [asserted] must be clearly es- COHN,* ‍‌‌‌‌‌‌​‌​‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​​​‌‌‌​​‌​‌​​‌​​​​​​‍Judges; Circuit District Judge. particularized tablished in a sense” under Anderson v. Creighton, MERRITT, J., delivered 97 L.Ed.2d 523 court, COHN, J., which joined. D. order for a state official person- to be held NELSON, 772-74), (pp. J. delivered a ally liable in damages for a constitutional separate dissenting opiniоn. tort and that the constitutional claimed in this case under OPINION clause was not “clearly established” at the MERRITT, retaliatory time of the Judge. conduct. case, § plaintiff Gable, Sara Although historically operates who an towing compa- automobile “petition” was confined to seeking legisla Lebаnon, ny Ohio, claimed relief, that the de- judicial tive or Higginson, see A * Cohn, The Honorable Avern gan, United States sitting by Dis- designation. Judge trict for the Eastern District of Michi- between for this distinction the reason Petition Right History Short matters is to enable Grievances, “public” “private” the Redress Government em like agencies, gоvernmental although some Yale L.J. order, discipline and ployers, to maintain peti the scope insist scholars su workplace and to allow civility in limited so remain tion clause discipline employees officials to pervisory Strauss, interpretation, judicial through offensive, disruptive or insulting, for Assoсia Employees’ Freedom Public of of expressions to unrelated speech Rey. (1992), tion, L. 61 FoRdham hand, the other matters. On policy about the con has held to Supreme Court the of all retain the sought the Court v. Truck Transport In trary. California citizens, employees, including public Unlimited, 404 U.S. ing mat their views on express and comment Court, (1972), the 30 L.Ed.2d Connick, In policy. governmental ters of underlying philosophy the explaining after con apply “public not the the did Court clause, the “same that said petition the clause, has it nor petition cern” test to the of citi the governs approach philosophy raising a case that decided since Connick them to administrative of groups zens or the test applied the Nor has Court point. right to “the concluded that agencies,” and em governmental are not to citizens who the of departments to all petition extends ployees. the of extending In Government.” сlearly the law is estab- We believe agencies, the to administrative petition does concern test” “public lished the destructive “that it would be Court stated activity in the petitioning to the apply not petition of and rights of association First, case. the instant California interests with common groups hold includ- Supreme case the Court Transport proce and ... the channels not use may petition clause scope ed within and agencies and federal of state dures of their “respecting resolution complaints points their causes to advocate courts inter- and economic [рetitioners’] business of their busi resolution respecting of view 609. at S.Ct. ...” 404 U.S. ests. their interests viz-a-viz ness economic gen- not Thus, clause itself is petition 510-11, 92 S.Ct. 609. Id. at competitors.” con- “public matters of limited to erally distinct analytically is clause petition The case but in the Connick as described cern” to, speech free from, related although business the petitioner's includes case clause; Transport and the California Second, for the reason interests. that the submission clearly establishes main- test Connick—to “public concern” nonlegislative criticisms to complaints and disruption avoid tain order and po like a agencies nonjudicial public apply not workplace ernmental —does ac petitioning constitutes department lice a was not plaintiff this case because clause. petition tivity protected subject to the dis- employee governmental whether before us is She quеstion employer. governmental a cipline of clause the ato petition offering read into the services we should a citizen simply Con test established the reason agency. concern” Since “public state 145-48, present case—main- in the Myers, missing nick case work- a governmental L.Ed.2d 708 in the taining order here, applied under the not be employee brought by place a —the in not In court was correct First Amendment. the district of the speech clause jury a instructions to governmen including its said ‍‌‌‌‌‌‌​‌​‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​​​‌‌‌​​‌​‌​​‌​​​​​​‍that Connick the the Connick liability based on pun impose limitation may discipline or tal Third, find no we concеrn test. public employee ishment limiting peti- Sixth Circuit authority a matter speech if sanctioned speech the employees activity by tioning “public than concern rather “private” general- concern” either matters it clear that Court made concern.” The ly governmental employment оr in the con- ... to petition government for a re- text. Valot Southeast Local School grievances.” dress of Most cases can be Education, District Board imagined to be “tantamount” or “analo- judge one believed gous” .that to some other case. We should not petition clause should be so limited in ac- split hairs when literally the conduct vio- by public employees against tions their lates the language of the Petition Clause employers, judges but two other and when the Supreme Court seems to be agree. court did not also See San subject. clear on the (3rd Cir.1994) v. Bongiovanni, 30 F.3d reasons, For these we conclude (holding that the “public concern” test the law interpreting apply petitioning does not public em- protects plaintiff clause in filing a com ployees), discussed and analyzed extensive- plaint with the Ohio Highway Patrol claim Shea, ly in Bongiovanni: San discrimination, ing sex and this law was The Public Concern Criteria and the clearly prior established to the retaliatory Scope Right, the Modem Petition by conduct found the in jury present the Vand. L. Rev. and Thaddeus-X case. We also conclude that the law was Blatter, 378, Cir. clearly established that the 1999)(en banc) “public con (holding prisoner’s that a сern” test does not apply plaintiffs peti right government the for re- tioning activity. Hence the doctrine of grievances dress subject is not to the immunity official inapplicable, public concern and the imposed limitation in free speech verdict should actions not be set involving public employees). aside for Thus there is no in either of the two basis our First reasons advanced by Amend- jurisprudence ment defendant. applying Con- nick’s concern test to petitioning Accordingly, judgment of the district activity by private business woman who court is AFFIRMED. is simply supplying services to a govern- mental an independent as contrac- NELSON, DAVID A. Judge, tor. dissenting. The fact that there is a judge some- publication With the of the opin court’s where, imagined as by our dissenting col- case, ion in this it becomes a settled rule of league, who in this case might conclude in law the Sixth Circuit that even where a erroneously that a citizen like plaintiff cannot meet concern” plaintiff, who tows cars for a living test of Connick v. Myers, 461 U.S. compensation state, receives no from the govern L.Ed.2d 708 “tantamount” or “analogous” govern- to a ment may officials not withdraw a business ment employee, does persuade not us. Af- advantage in retaliation for plаintiffs ter many years watching judges, agree we exercise of the First Amendment that a judge or judges might somewhere petition for a grievances. redress of It is so conclude. But when such a ruling in unlikely, my opinion, that the Supreme clearly be contrary Supreme to a Court would with our holding on Court case like Transpоrt, su- California this point. pra, and entirely inconsistent with the Su- I preme part company Court’s orderly-public-workplace my colleagues on case, however, reasoning panel, Connick we when it comes to the not by be dissuaded proposition the error of such a the non-applicаbility of hypothetical judge. public-concern This is Connick’s especially true test Petition when we recognize government retali- Clause cases had clearly been established ation for filing petition by July violates the literal the point at which the language of the Petition Clause which for- of towing name company operator Sara bids “abridging ... of the people Gable was removed from the Ohio State clearly law was so estab- say if And list.1 referral Patrol’s Highway months earlier there lished seven es- clearly not today was announced rule disagree- time for no room at that words, was other July of 1996—in tablished Highway Patrol among ment reasonable that offi- law such of the if the state officials? could dis- cials of reasonable public- applicability to the agree as sure, that the acknowledge, to be must situa- Clause test a Petition concern bus substitute plaintiffs Valot —untenured quali- entitled are tiоn—the defendants employees of drivers —were sometime immunity. fied having accused of body that stood them, Ms. while Gable retaliated that the non- say prepared not am Ohio State employee an was not the public-concern applicability of Ap- as the Court Highway Patrol. But clearly estab cases was Clause Petition Circuit observed peals for Fifth with, neither begin To in mid-1996. lished Marshall, 42 F.3d City Blackburn v. the Sixth Circuit nor Supreme (5th Cir.1995), “[although an question. decided the had ever [public-concern] Pickering/Connick was not today court by this given swer employment, in the context of arose Supreme clearly foreshаdowed strictly applica- cabined its courts have not Transport Court’s California extended anal- [its] tion .... Courts have Unlimited, Trucking relationships analo- ysis involving to cases late 609, 642 so as L.Ed.2d See, relationship.” gous employment to an seven months of 1997—some as March connection, Copsey Swearingen, v. removed from name was Ms. Gable’s after (a Cir.1994) (5th 1336, blind 36 F.3d of this' judge list—a referral towing stand in a of a concession operator qualifi without was able maintain court public employee a building “was like more is limited that “the cation citizen,” public- ordinary so than an See Valot concern.” to matters to his situa- test had relevance concern Board District Local School v. Southeast tion). Education, 107 F.3d of Cir.1997) (lead an em- J.). “analogous to relationship One by Engel, happens, as it relationship,” ployment cases a number of Engel marshalled Judge a force and relationship police view, bеtween and noted point of support of this force police which towing company a Bongiovan v. one case—San only See (3d Cir.1994) business. historically referred has ni, 440-43 F.3d —to Patterson, Towing Corp. Plains White contrary. Id. (2d Cir.1993), where 991 F.2d members It is true that other for First Amend- assumed Second Circuit JJ.) (Merritt Ryan, panel the Valot assign- analysis purposes ment Judge Judge Engel. disagreed by the towing company to a ment of work by a differ- the same result Ryan reached tantamount to “was York State Police New Valot, route, analytical see ent Id. at 1059. employment.” J., concurring), and (Ryan, at 1230-31 brought towing company Merritt, dissent, that he The said Judge recover dam- could not Valot, Plains suit 107 White Filippo. follow San retaliatory termi- (Merritt, J., allegedly for an dissenting). ages at 1234 F.3d the Sec- arrangement, its referral nation of of this court But if reasonable members held, showing absent over the ond of 1997 disagree March could it company claimed for which “speech” public-concern applicability demands primarily context, we had been how can the Petition Clause delisted — found, complaint of filing of her that the so prove her sex was 1. Gable failed Ms. motivating list, factor was a discrimination sex from the motivating factor in her removal was concerned. Lewis having as defendant insofar given, the take it as we must but in towing an increase referrals —rose to YOUSIF, In re: Sami Debtor. dignity upon “comments a matter of partly concern.” Id. It was because Halbert, Plaintiff-Appellant, Todd M. at communications issue flunked the

public-concern judgment that a en- towing Yousif; tered in favor of the plaintiff Yousif; com- Sami Sana Florence Tanners, Incorporated, pany was reversed the Second Circuit. Defendants- Appellees. must, course, give We defendants the No. 98-1805. qualified immunity benefit of the doctrine in any case where the doctrine ‍‌‌‌‌‌‌​‌​‌‌‌‌​​‌​‌​​‌​‌‌​​​‌​​​‌‌‌​​‌​‌​​‌​​​​​​‍is properly United States Court of Appeals, raised and Sixth Circuit. properly applies. to which it it, applies, The doctrine as I understand Argued: Oct. 1999. with respect any legal issue which Decided and Filed: Jan. 2000. controlling there is no Supreme Court or precedent circuit and on which “officers of

reasonable could dis- ” agree .... Malley Briggs, See

U.S. 89 L.Ed.2d (1986). underlying issue at

case bar —whether the First Amend- prohibits

ment termination of a business

relationship retaliation for the assertion

of a grievance one on which —is

there has heretofore been no controlling

Supreme Court or Sixth authority

and as to which judges federal of reason-

able could and in fact

have disagreed. Because do not think

we ought require Highway Patrol offi-

cers to prescient be more than Article III

judges it when comes divining future

developments the-law, recognize qualified immunity

the-deféndants’

here.

Case Details

Case Name: Sarah Gable v. Ronald G. Lewis Kenneth T. Woehrmyer, Roger Hannay

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 13, 2000

Citation: 201 F.3d 769

Docket Number: 98-3819

Court Abbreviation: 6th Cir.