Opinion
No. 01-2097-KHV, No. 01-2098-CM
December 28, 2002.
MEMORANDUM AND ORDER
Plaintiffs bring these actions under 42 U.S.C. § 1983, alleging that defendants, acting under color of state law, deprived them of constitutionally protected rights of freedom of expression and association. In addition, plaintiffs assert a state law claim for invasion of privacy. These matters come before the Court on Defendant Meneley's Motion For Summary Judgment (Doc. #99) and defendant Shawnee County Board of County Commissioners' unopposed Motion To Join Defendant Meneley's Summary Judgment Motion (Doc. #98) both filed August 30, 2002. For reasons set forth below, the Court finds that defendants' motion for summary judgment should be sustained as to plaintiffs' claims under 42 U.S.C. § 1983, and that plaintiffs' state law claims should be dismissed without prejudice.
• Summary Judgment Standard
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P.; accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City Of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
II. Facts
The following facts are either uncontroverted or construed in a light most favorable to plaintiffs.
In November, 1992, voters elected defendant David Meneley ("Meneley") as Sheriff of Shawnee County, Kansas. In November 1996, voters re-elected him. Meneley served as Sheriff until February 24, 2000 when he was ousted from office for misconduct.
On March 3, 1999, plaintiff Janet Price obtained information from the Shawnee County elections commissioner's office on how to start a recall petition against Meneley. On March 6, 1999, the Topeka Capital-Journal reported that Price and plaintiff Patricia McClellan planned to start a recall petition. The newspaper quoted Price as stating that she had more than 100 individuals who were willing to sponsor the recall. Price had recruited these people before she went to the elections office on March 3, 1999.
Topeka is the county seat of Shawnee County.
On March 17, 1999, the Elections Commissioner approved Price, McClellan and plaintiff Ken Eaton as recall committee sponsors. The three undertook the task of obtaining signatures on the recall petition, individually and through sponsors approved by the Elections Commission.
The Criminal History ("Triple I") Checks Of Plaintiffs
In early April 1999, Price contacted Cecilia Craig at the Shawnee County Sheriff's Department and asked Craig whether the Sheriff's Department had run the names of recall committee sponsors through the computer criminal history system (the Interstate Identification Index, or Triple I). Craig asked Jack Metz, a detective, to check the Triple I log. Metz checked the Triple I logs, and told Price that her maiden name, Jan Earp, was on the Triple I log. Price then contacted the Kansas Bureau of Investigation ("KBI") and the Topeka Capital-Journal and told them that the Sheriff's Department had run her name through the Triple I system. Price spoke with a reporter for the Topeka Capital-Journal, to alert other members of the public and participants in the petition drive that Meneley had conducted the checks. McClellan also spoke with a reporter from the Topeka Capital-Journal. Price and McClellan spoke to the media in part because they thought petition participants should be aware of Meneley's misuse of the Triple I system.
Price learned of a rumor from her husband, a Shawnee County Corrections officer, that her criminal history may have been checked.
Plaintiffs point out that the fact that the Triple I checks were run was disseminated beyond the Sheriff's Department. See Plaintiffs' Ex., David Sim Depo. at 62.
On April 7, 1999, the Topeka Capital-Journal reported that the KBI was investigating the Sheriff Department's use of the Triple I system to check the criminal history of recall petition sponsors. On April 9, 1999, it reported that Sergeant Hladky, public information officer for the Sheriff's Department, had confirmed that the Sheriff's Department had run Triple I checks on Price, McClelland and Eaton. According to the paper, Hladky stated that Meneley had run the checks after he received information that the recall committee sponsors had felony convictions. Hladky said that Meneley had run the checks to determine the legality of their involvement in the petition drive. Hladky also told the newspaper that the Triple III checks on the recall committee sponsors revealed no felony convictions.
Under state law it is a misdemeanor to sign a recall petition knowing that one is not a registered voter. See K.S.A. § 25-4321.
Hladky later testified that the media had contacted him several times about the reported Triple I checks. Hladky therefore approached Meneley and told him "Damn it, if we ran the Triple I's we need to say we ran them and say why we ran them." Memorandum In Support Of Motion For Summary Judgment (Doc. #100) filed August 30, 2002, Tab. 5 at 20. Meneley told Hladky that he ran the checks because he had received information that "they" had felony convictions. See id. Hladky does not recall that Meneley specifically mentioned the names that he ran through Triple I. Hladky then contacted the Capital-Journal and provided the information that the Triple I checks had been run. He does not believe that he referenced any specific names. He told the reporter that the Triple I checks had revealed no felony convictions, and therefore the Sheriff's Department did not need to investigate further. No Triple I check was actually run on Ken Eaton, although up until July, 2002, Hladky believed that Eaton had been checked.
After Price contacted the KBI about possible misuse of the Triple I system, she and McClellan met with KBI agents. Special KBI agent David Sim supervised the investigation. Michael W. Metzler, also a special agent with the KBI, assisted Sim. They concluded that at Meneley's direction Triple I checks were run on McClellan (also under the name Huff) and Price (under the name Earp). Meneley told the KBI that he ran the checks because he had received anonymous tips that they had felony records. Meneley later testified that he ran the checks because he received information that Price and McClellan were involved in criminal activity, and that the Triple I checks were not related to the petition drive. Meneley could produce no notes or documents concerning the alleged anonymous tips and Sims does not believe that Meneley actually received anonymous tips about plaintiffs. Sims thus concluded that the Triple I checks involved improper access to the criminal history data base. Sim and Metzler both believe that if Meneley in fact received anonymous tips, he should have turned over the information to an uninvolved law enforcement agency in order to avoid an obvious conflict of interest.
On March 3, at Meneley's request, Patricia Winters ran a check on Jan Earp. On March 22, 1999, Brenda Theis ran checks on the names Patricia McClellan and Patricia Marie Huff.[7]
[7] Check record, was Huff McClellan's maiden or former name?"
Meneley admitted to KBI agents that he had run Triple I checks on Price, McClellan and Eaton. Meneley told KBI agents in April and May that Eaton's name had been checked through Triple I because he had received an anonymous tip that Eaton had a criminal record. In his deposition, however, Meneley testified that he did not recall Eaton and did not know where his name originated, but did recall the anonymous tips about McClellan and Price.
In their responses to defendants' numbered facts paragraphs, plaintiffs began mis-numbering at an indiscernible point somewhere in the mid-seventies. Defendants' last fact paragraph is numbered 91. Plaintiffs last response paragraph is numbered 92. The Court has attempted to align the responses by working backwards.
Sim testified that anonymous tips of possible criminal activity may properly be the basis to conduct a Triple I check, and that the absence of written records regarding the tips did not violate the Triple I procedures.
In the end, the KBI found no evidence that Meneley had personally disseminated the Triple I information for any illegitimate purpose. Sim, however, testified that it was improper for Meneley — through his spokesperson — to disseminate to the media the fact that the Triple I checks had been run. Sim also testified that the newspaper articles which stated that Meneley ran the checks for legitimate law enforcement purposes constituted dissemination of Triple I information. Plaintiff's expert witness states that under Triple I guidelines, uncorroborated and anonymous information or mere curiosity may not be used as the basis for Triple I checks. In his opinion, an experienced and trained law enforcement officer should know that it is improper to access the system when the issue at hand involves the officer.
Meneley disclosed the fact of the Triple I checks to his undersheriff, William Huffmier, and perhaps to Major Ken Pierce and Mickey Brokaw. Two days before he directed the Triple I check on Price, Meneley signed the Criminal Justice Information System agreement. The agreement provided that the Triple I could not be used for political purposes.
The Recall Petition Process
The sponsors filed the recall petition on March 17, 1999. Early in the petition drive, Price was leery of possible repercussions for sponsoring the petition. On March 18, 1999, the Topeka Capital-Journal quoted Price as saying that the petition drive was going to be an uphill battle. When Price and McClellan learned that Meneley had run the Triple I checks, they thought disclosure of his actions would help the drive. They also thought that Meneley would lose his job because charges would be filed against him and the petition drive would be moot.
Price testified, however, that soon after the Topeka Capital-Journal reported the fact of the Triple I checks, the petition drive dropped off precipitously and the hoped-for boost did not materialize. She believes that this drop-off occurred because potential signators were afraid of intimidation and retaliation. McClellan also testified that after the Triple I checks became public, approximately 40 sponsors dropped out, some remaining sponsors sought signatures in a less enthusiastic manner, and some sponsors did not turn in their petition lists because signatories did not want their names to be made public.
McClellan also testified that when the Attorney General's office filed an ouster proceeding on May 24, 1999, some people might have felt that Meneley was going to be removed from office and that therefore they did not need to sign the petition.
By contrast, on April 14, 1999, Price had contacted KBI Agent Rick Sabel and told him that the petition sponsors had become more intent and were more aggressively pursing signatures. She told him that they had been able to obtain more signatures because of the recent developments which had aided their cause.
On April 20, 1999, McClellan told a television reporter that the petition drive was doing well. McClellan did not suggest that the sponsors were having difficulty getting signatures on the petition because of the Triple I checks.
On May 1, 1999 Price told a news reporter that she was having difficulty collecting signatures. She stated that she did not know why it was so hard to collect signatures, especially because people had been voicing their support of the petition drive. Price never told the news media that the Triple I checks made it difficult to get people to sign the petition.
On May 14, 1999, the Topeka Capital-Journal reported that Price stated that the petition drive was at best a third of the way to where it needed to be. When asked about what problems had hindered the petition drive, she gave stated that (1) many potential petition signers did not know where to find a copy of the petition, (2) many people were waiting for someone to knock on their door, but that sponsors could not make to it every door and (3) some potential signers feared retribution from the Sheriff's Department. She later testified that she did not mention the Triple I checks because she thought that would only draw more attention to the negative influence of the Triple I checks on the petition drive.
When Eaton first learned of the checks on Price and McClellan, he assumed that Meneley had a legitimate basis for the checks and became leery of Price and McClellan. Eaton testified that after the Triple I disclosure, sponsors left the petition drive and people told him they were concerned that if they signed, they would be checked. Although petition supporters had to deal with the public fear of retaliation from the beginning of the drive, Eaton testified that the fear of retaliation was more prominent after the Triple I checks became public. Eaton continued to actively solicit signatures for the petition after the Triple I checks were made public, but he proceeded more cautiously.
On June 17, 1999, the Topeka Capital-Journal ran an article titled "Recall effort falls short." The recall sponsors had 90 days from filing the petition on March 17 in which to obtain more than 29,000 signatures of registered Shawnee County voters to put the recall to a vote. According to Price, at the end of the 90 days, the recall sponsors had obtained approximately 15,000 signatures. After the recall petition effort failed, to protect the signatories from retaliation by Meneley, Price destroyed all of the petitions. Because Price destroyed the petitions, one cannot re-create exactly how many signatures had been collected at any certain time during the petition drive. Price testified that when she destroyed the petitions, they had maybe half of the needed signatures and still would have had to delete those who were not registered voters.
Early in the petition drive process, Price had discussed with Shawnee County Elections Officer Elizabeth Ensley the propriety of destroying the petitions. Ensley assured Price that destruction of the petitions was permissible. Price had therefore explicitly assured a number of petition signatories that if the petition drive failed, the sponsors would destroy the petitions to minimize the possibility of effective retaliation by Meneley. Eaton agreed that it was a good idea to destroy the petitions because he believed that if Meneley obtained the list, the signatories would have been subject to a criminal background history check. McClellan also agreed with destroying the petitions.
Alleged Damages
Jan Price testified that the Triple I checks caused her additional stress. She cried for several months and was depressed.
McClellan testified her reputation had been harmed by the Triple I checks. Defendant points out that she does not identify any witness who will testify to that effect. Other than the fact that the Triple I checks had been run, McClellan is not aware of any information that was found in her Triple I check that was disseminated.
Eaton is a Topeka Police Department Detective and has been in law enforcement for 18 years. He learned of the reported Triple I check on him when he read about it in the Topeka Capital-Journal on April 9, 1999. Eaton stated that "[i]t seems like a bad dream." He believes the reports of the Triple I check damaged his reputation. He is reluctant to get involved in community efforts. He feels humiliated, slandered and embarrassed. He has lost confidence in the legal system because the Triple I checks did not result in a negative impact on Meneley.
Ultimately, Meneley was ousted from office. The Shawnee County District Court and the Kansas Supreme Court found that he gave false testimony on two occasions. See State ex rel Stovall v. Meneley, 271 Kan. 355, 22 P.3d 124 (2000). At the close of the state's evidence, the district court dismissed five counts relating to improper use of Triple I background checks (including those at issue in this case).
The Kansas Supreme Court opinion does not recite why the district court dismissed the counts relating to improper use of Triple III background checks.
Analysis
I. Section 1983 Claims.Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . .42 U.S.C. § 1983. Section 1983 creates a private right of action for redressing the violation of federal law by those acting under color of state law. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 82 (1984). It is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. See Albright v. Oliver, 510 U.S. 266, 271 (1994).
Plaintiffs claim that defendants are liable under Section 1983 because they violated plaintiffs' First Amendment rights to political expression and free association. Defendants assert that they are entitled to summary judgment because plaintiffs have not presented evidence that Meneley deprived them of constitutionally protected rights to political expression and association under the First Amendment. Specifically, defendants assert that although plaintiffs allege that their political activities were chilled when the public learned of the record checks, they have produced no evidence that Meneley himself did anything to disseminate to the public the information that he had run the checks. Further, defendants argue that in context, Hladky's acknowledgment of the Triple I checks could not have infringed plaintiff's First Amendment rights. Finally, defendants assert that plaintiffs have not shown that knowledge of the Triple I checks chilled their exercise of First Amendment rights.16 The Court addresses each argument in turn.
Under 42 U.S.C. § 1983, a local government may be held liable for a constitutional violation of its employee only when the employee's action caused a constitutional tort pursuant to official municipal policy. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Therefore, to establish municipal liability a plaintiff must show (1) the existence of a municipal custom or policy and (2) a direct causal link between the custom or policy and the violation alleged. Jenkins v. Wood, 81 F.3d 988, 993-94 (10th Cir. 1996) (citing City of Canton v. Harris, 489 U.S. 378, 385 (1989); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). In this case, municipal liability refers to the potential local government liability of Shawnee County through its representative Sheriff Meneley. Therefore, in order for plaintiffs to prevail on their claim against Shawnee County, they must first show a constitutional tort.
The First Amendment provides that
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
U.S. Const. amend. I. "The right of expressive association — the freedom to associate for the purpose of engaging in activities protected by the First Amendment, such as speech, assembly, petition for the redress of grievances, and the exercise of religion — is protected by the First Amendment as a necessary corollary of the rights that the amendment protects by its terms." McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir. 1994) (citing Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984)). Although the First Amendment explicitly refers only to federal action, it applies to the states through the Due Process Clause of the Fourteenth Amendment. See De Jonge v. Oregon, 299 U.S. 353, 364 (1937).
To prevail on their First Amendment claim, plaintiffs must prove that (1) they have an interest protected by the First Amendment; (2) Meneley's actions were motivated or substantially caused by plaintiff's exercise of that right; and (3) Meneley's actions effectively chilled the exercise of that right. See Nat'l Commodity Barter Ass'n v. Archer, 31 F.3d 1521, 1531 n. 4 (10th Cir. 1994). Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998). Defendants do not dispute that the First Amendment protects plaintiffs' rights to engage in a recall petition. Political expression such as plaintiffs' actions in sponsoring a petition to recall Meneley is, unquestionably, protected speech under the First Amendment. See Connick v. Myers, 461 U.S. 138, 145 (1983) (speech on public issues occupies highest rung of First Amendment values and is entitled to special protection) (internal quotations omitted).
As to the second element, Meneley argues that his actions in running the Triple I checks were not motivated by that fact that plaintiffs exercised their First Amendment rights. Meneley cites evidence of anonymous tips that Price and McClellan engaged or were about to engage in a recall petition and that they were felons. Kansas law provides that a felon, except special circumstances, may not register as a voter. See K.S.A. § 25-2316. Further, under Kansas law it is a misdemeanor for a person to sign a recall petition, knowing he or she is not a registered voter. See K.S.A. § 25-4321. Meneley thus asserts that as a matter of law he had a legitimate law enforcement motive for running the Triple I checks. Plaintiffs point to evidence that where KBI investigators would have expected to find documentation they found none. Based on the lack of documentation, and the fact that Meneley was the subject of the recall petition, and the inherently suspect nature of Meneley's testimony regarding the anonymous tips, the record presents a genuine issue of material fact concerning Meneley's motivation. See Blue v. Koren, 72 F.3d 1075, 1082-83 (2d Cir. 1995) (plaintiff must produce specific proof of improper motivation to survive summary judgment on First Amendment retaliation claim).
Defendants next assert that plaintiffs have not produced evidence of the third element, that their First Amendment rights were actually chilled. See McCabe, 12 F.3d at 1563; Davis v. Vill. Park II Realty Co., 578 F.2d 461, 464 (2d Cir. 1978). Allegations of a "subjective chill" do not substitute for a claim of specific present objective harm or a threat of specific future harm. Laird v. Tatum, 408 U.S. 1 (1972). Plaintiffs claim that Meneley ran the Triple I checks, then stated that they were for "legitimate law enforcement purposes," and that this conduct chilled their First Amendment rights. Plaintiffs, however, continued the petition drive even after they learned of the Triple I checks and Meneley's comment to the media that the checks were for legitimate law enforcement purposes. Although plaintiffs insist that the petition drive was adversely affected by the Triple I checks and Meneley's comment, this does not change the fact that all three plaintiffs continued to sponsor the petition drive even after the events of March and April 1999. Where a party can show no change in their behavior, they have shown no chilling of it. See Singer v. Fulton County Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (finding no chilling effect where, after an arrest, plaintiff continued to publish newspaper in which he criticized village government); Spear v. Town of W. Hartford, 954 F.2d 63, 67 (2d Cir. 1992) (finding no chilling effect where, after filing of lawsuit, plaintiff continued to write critical editorials in same manner as before lawsuit).
Plaintiffs also appear to assert that rather than a chilling effect on plaintiffs themselves, Meneley's actions had a chilling effect on potential petition drive signatories. Plaintiffs offer as evidence their testimony that they lost 40 sponsors after the newspaper reported the Triple I checks and Meneley's statement that the checks were for legitimate law enforcement purposes.
Plaintiffs themselves, however, made public the fact that Meneley had run the Triple I checks. Price and McClellan publicized the Triple I checks because they thought it would help their recall petition drive. Meneley's only public comment, through his spokesman, was that he ran the checks for legitimate law enforcement purposes. In a vacuum, this statement could have had a chilling effect on plaintiff's rights. But the comment was made after plaintiffs themselves had made the Triple I checks public. Further, the statement was included in an article which also explained that recall sponsors had to be registered voters and that a Triple I would indicate if someone was a felon and thus ineligible to vote. Further, the article stated that the Triple I checks on plaintiffs revealed no felonies. Given these uncontroverted facts, plaintiffs cannot show that Meneley's conduct chilled their First Amendment political speech and association rights.
• State Law Claims
Plaintiffs also bring state law claims of invasion of privacy. Because plaintiffs' federal claims have dropped out of the picture, their state law claims of invasion of privacy are no longer supplemental to any federal question claim. The most common response to a pretrial disposition of federal claims in these circumstances is to dismiss the state law claims without prejudice. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995) (citing 28 U.S.C. § 1367(c)(3) (supplemental jurisdiction). The state law claims are therefore dismissed without prejudice. IT IS THEREFORE ORDERED that the unopposed Motion To Join Defendant Meneley's Summary Judgment Motion (Doc. #98), which defendant Shawnee County Board of County Commissioners filed August 30, 2002, be and hereby is SUSTAINED.
IT IS FURTHER ORDERED that Defendant Meneley's Motion For Summary Judgment (Doc. #99) filed August 30, 2002, as joined by defendant Shawnee County Board of County Commissioners, be and hereby is SUSTAINED IN PART. Defendants are entitled to summary judgment on plaintiffs' claims under 42 U.S.C. § 1983.
IT IS FURTHER ORDERED that plaintiffs' state law claims of invasion of privacy be and hereby are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk fax a copy of this order to all attorneys of record.