Opinion
CIVIL ACTION NO. 02-10306-REK
October 29, 2002
OPINION and Order
I. Pending Motions
Pending for decision are the following motions:
(1) Defendants' Motion to Dismiss (Docket No. 5, filed August 23, 2002). Plaintiff Christy Peter Mihos has filed an opposition (Docket No. 11, filed September 25, 2002);
(2) Plaintiff's Motion for Extension of Time to File Response to Defendant's Motion to Dismiss (Docket No. 10, filed September 10, 2002);
(3) Plaintiff's Motion to Dismiss Claims Against Defendant William F. Galvin and Against Defendant Jane M. Swift in her Official Capacity (Docket No. 9, filed September 10, 2002).
II. Factual Background as Alleged by Plaintiff
Thc factual background of this case is recited here as it is alleged by the plaintiff.
Plaintiff was originally appointed by Governor Argeo Paul Cellucci in December 1998 as a Member of the Massachusetts Turnpike Authority ("the Authority") to fill the unexpired term of Thomas Curley. Governor Cellucci reappointed plaintiff as a member of the Massachusetts Turnpike Authority in July 1999 for an eight-year term. Plaintiff was elected vice-chairman of the Authority in May 2000.
The Authority is an independent public instrumentality of the Commonwealth existing under G.L. c. 81A. The Authority owns and operates the Massachusetts Turnpike, the Boston Harbor tunnel crossings, and certain facilities of the Metropolitan Highway System. Also, under a series of agreements with the Massachusetts Highway Department ("the Department"), the Authority acts on behalf of the Department as to certain aspects of the Department's responsibility for the design and construction of the Central Artery/Tunnel Project ("the Project") and may accept all or portions of the Project when suitable for vehicular traffic or for its intended purpose.
The Authority has established toll rates for the Massachusetts Turnpike, the Boston Harbor tunnel crossings, and the Metropolitan Highway System, and has adopted financing plans to provide for the payment of the costs of these facilities, the principal of and interest upon its debt obligations, and maintenance of its reserves. The Massachusetts Turnpike Authority has the sole authority to establish and modify tolls. Members of the Authority are paid by the Authority from the separate funds of the Authority, and not from funds raised by taxes or from the general fund of the Commonwealth.
During the latter part of 2001, plaintiff and another Authority member, Jordan Levy, became concerned about proposals to increase tolls on portions of the Massachusetts Turnpike in January 2002. Plaintiff performed an extensive investigation of the financial impact of this proposed toll increase. Based on this investigation and in reliance on the expert opinions plaintiff received, plaintiff concluded that the proposed January 2002 toll increase was not in the Authority's best interests and was not necessary as a matter of law. At a duly held meeting of the three Authority members on October 30, 2001, plaintiff chose not to second a motion by a third Authority member to increase tolls in January 2002. The motion failed for want of a second. A motion to increase tolls in July 2002 was made and seconded. Plaintiff and Mr. Levy voted for that motion, and it was approved. The motion, as passed, included a combination of toll increases, cost savings, and other revenue measures.
The defendant (Acting Governor Swift) was unhappy that the Authority failed to approve the January 2002 toll increase, which she supported. As a direct result of plaintiffs October 30, 2001 vote to increase tolls in July 2002 rather than January 2002, on November 16, 2002, Acting Governor Swift delivered letters to plaintiff and Mr. Levy informing them that, under G.L.c. 30, § 9, she was removing them from their offices as Members of the Authority. No such letter was sent to the third member, who had proposed the January 2002 toll increase and who had voted against the July 2002 toll increase. By letter dated December 13, 2001, the Governor continued the suspension of the two members.
III. Relevant Procedural Background
Following proceedings initiated in the Massachusetts Supreme Judicial Court, the Governor conducted hearings concerning the removal of plaintiff and Mr. Levy. The hearings were conducted over the course of two days. Levy v, The Acting Governor, 436 Mass. 736, 744 (2002) ("Levy II"). After conclusion of the hearing, the Acting Governor, by letter dated February 6, 2002, notified plaintiff that she was removing him from office. The Acting Governor concluded that ""acts and omissions concerning the Authority's finances, particularly during the time period culminating with the Authority's October 30, 2001 [,] [b]oard meeting and immediately thereafter, were fiscally irresponsible, resulting in adverse consequences of substantially decreasing projected revenues of the Authority, damaging the Authority's credit outlook, and creating financial instability."' Levy II, 436 Mass. at 744.
Plaintiff sought review, in the nature of certiorari, under G.L. c. 249 § 4, in county court, Id. at 737. A single justice reserved and reported the matter to the full court. Id. The Massachusetts Supreme Judicial Court held that the Governor's decision was not supported by substantial evidence to support removing plaintiff for cause. Id. at 752. The Court ordered that the decision to remove plaintiff from the Authority be vacated, and that plaintiff be returned to his position.id.
Plaintiff also filed a complaint in federal court against Governor Swift, individually and in her official capacity as the Acting Governor of the Commonwealth of Massachusetts, and against William Galvin, in his official capacity as the Secretary of the Commonwealth of Massachusetts. Plaintiffs complaint alleges that the removal of the plaintiff in retaliation for his vote violated his rights as protected by the First Amendment. In this complaint, plaintiff seeks declaratory judgment, injunctive relief, compensatory damages, punitive damages, and attorneys fees and costs.
IV. Plaintiffs Motion to Dismiss Certain Claims
Plaintiff moves to dismiss all claims against the defendant William Galvin and those claims against the defendant Jane M. Swift in which she is named in her official capacity. Plaintiff also moves to dismiss the prayers for injunctive relief. Because the plaintiff, after being reinstated, is moving to dismiss his own claims, and no opposition has been filed, the order below grants the motion.
V. Defendants' Motion to Dismiss
A. Parties' Positions
Defendants move to dismiss as moot the claims against William Galvin, those claims against Acting Governor Swift in her official capacity, and the requests for injunctive relief Because the order below grants plaintiffs motion, for exactly this disposition, it also grants this portion of defendants' motion.
Defendants also move for additional relief.
Regarding the claims against the Acting Governor individually, defendant argues that she has qualified immunity and that the claims should, therefore, be dismissed with prejudice.
Counsel for plaintiff has responded with a contention that his vote was protected speech; counsel for defendant advances a two-part response: First, counsel for defendant argues that determining whether the vote is protected speech under the First Amendment involves a balancing test and that precedent supports a ruling that the existence of a balancing test is alone enough to establish that the constitutional right alleged is not "clearly established," and, as a result, the Governor cannot be held liable under Section 1983.
Second, defendant points to the fact that three members of the Supreme Judicial Court found that the evidence produced before the Acting Governor was sufficient to establish adequate cause for the removal decision. Levy II, 436 Mass. at 752-53 (Cordy, dissenting). According to defendant's counsel, this shows that a reasonable public official in the Acting Governor's position could not have understood that the balance clearly tipped in plaintiffs favor, and, therefore, she cannot be liable under Section 1983 for violations of plaintiffs constitutional rights.
Plaintiff argues, on the other hand, that the First Circuit has denied qualified immunity to government officials in virtually identical situations. According to plaintiff the law is clearly established that defendant could not remove plaintiff because of his vote. Plaintiff also argues that whether a reasonable official in the Acting Governor's position would have understood that her conduct violated this established right requires preliminary factual findings, and thus is not appropriately decided at this stage by the court. Finally, plaintiff argues that protecting the right of citizen volunteers to vote in the way they consider appropriate is a fundamental requirement for our government to operate effectively.
B. Legal Standard
The court can dismiss for failure to state a claim ""only if it clearly appears, according to the facts alleged, that the plaintiff cannot recover on any viable theory." Berezin v. Regency Sav. Bank, 234 F.3d 68, 70 (1st Cir. 2000) (quoting Carrea-Martinez v. Arrillaga Belendez, 903 F.2d 49, 52 (1st Cir. 1990)). When ruling on a Rule 12(b)(6) motion, the court must accept all well-pleaded factual allegations of plaintiffs complaint as true and must give plaintiff the benefit of all reasonable inferences. LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998).
C. The Merits
1. Introduction
A government official is entitled to qualified immunity if the acts complained of were (1) "discretionary functions," and (2) not violative of "clearly established" statutory or constitutional rights at that time, Anderson v. Creighton, 483 U.S. 635, 639-42 (1987). The First Circuit has established a three-part test to determine whether a government official is entitled to qualified immunity.
The threshold inquiry is whether the plaintiffs allegations, if true, establish a constitutional violation. The second question is whether the right was clearly established at the time of the alleged violation. . . The third is whether a reasonable officer, similarly situated, would understand that the challenged conduct violated that established right.Suboh v. District Attorney's office of the Suffolk District, 298 F.3d 81, 90 (1st Cir. 2002) (internal citations omitted).
In a more recent First Circuit decision, the second and third of the three questions identified in Suboh are stated as "depending on whether they [the government officials] acted in an objectively reasonable manner under clearly established law." Jarrett v. Town of Yarmouth. et al., (1st Cir. October 25, 2002) slip op. at 16 (citing Kelley v. LaForce 288 F.3d 1, 6 (1St Cir. 1991).
2. Determining whether the Governor violated plaintiff's First Amendment right involves a "balancing test" that tips in favor of the plaintiff.
a. Introduction
To determine whether the plaintiffs allegations, if true, establish a constitutional violation, this court must apply the same "balancing test" as would apply in a case involving the government as employer. According to the opinion in Mullin v. Fairhaven, 284 F.3d 31 (1St Cir. 2002), "[w]e are aware that the Board, acting as an appointing authority, is not a "public employer' in a literal sense. We see no reason, however, why First Amendment jurisprudence in the public-employer context should not apply with equal force to the [defendant]'s removal of appointed, unpaid public officials." Id. at 37 fn.7.
The opinion in Mullin, although not addressing the issue of qualified immunity, applied First Amendment law to a town's decision to remove appointed officials who were unwilling to rescind a vote. Id. at 33. As stated by the opinion in Mullin:
In their capacity as public officials voting on matters of public concern, plaintiffs retain First Amendment protection "so long as [their] speech does not unduly impede the government's interest . . . in the efficient performance of the public service it delivers through" its appointed officials. Accordingly, to determine the scope of First Amendment free speech protections applicable to public officials, we have employed a three-part test extracted largely from two Supreme Court opinions.Id. at 37 (quoting O'Connor v. Steeves, 994 F.2d 905, 912 (1St Cir. 1993).
The three-part test employed by the First Circuit is as follows: "First, we must determine whether the speech at issue involves "matters of public concern."' Id. at 37 (quoting Connick v. Myers, 461 U.S. 138, 147-148 (1983)). "Second, if the speech does pertain to matters of public concern, the court must, under the Supreme Court's decision inPickering, balance the strength of plaintiffs' and the public's First Amendment interests against "the strength of the countervailing governmental interest in promoting efficient performance of the public service . . . through' its public officials." Id. (quoting O'Connor, 994 F.2d at 912). "Third, and finally, if First Amendment interests outweigh a legitimate government interest in curtailing the speech under thePickering balancing test, plaintiffs must then show that the protected expression was a substantial or motivating factor in the decision to remove them from their posts . . . ." Id. at 38.
B. Plaintiffs votes involved a matter of public concern.
The defendant assumes, for purposes of this motion only, that the votes constituted matters of public concern. For the sake of completeness, however, I will address the issue briefly.
According to the Supreme Court, "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form and context of a given statement, as revealed by the whole record,"Connick, 461 U.S. at 147-48. In this case, the speech at issue was (1) one vote against raising the Massachusetts Turnpike toll rate in January, 2002 and (2) one vote in favor of delaying such a toll rate raise. The opinion in Mullin stated: "[T]he speech at issue is a vote, not simply the expression of a point of view on a controversial issue. That vote had tangible consequences for the community . . . ." Mullin, 284 F.3d at 39. As in Mullin, the vote in this case had tangible consequences for the community; raising toll rates on the Massachusetts Turnpike would affect every member of the public who used the Turnpike. As the opinion in Mullin explained:
As with any board, agency or commission, its leaders bear primary responsibility for the articulation of policy to the public and other government entities. Accordingly, in view of the[ir] responsibilities., and the public issues that contributed to the dissension . . . we conclude that the vote at issue here involves a matter of public concern.Id.
Guided by the First Circuit opinion in Mullin, I conclude that the two votes by a member of the Massachusetts Turnpike Authority regarding toll rates involved a matter of public concern.
c. The plaintiffs' votes were on matters within the Authority's jurisdiction.
When evaluating the "balance of interests" at stake in this case, I take into account that the opinion of the Massachusetts Supreme Judicial Court in Levy II indicates that the plaintiffs votes were fully within his authority while acting as a member of the Turnpike Authority on matters within his jurisdiction. I conclude that no persuasive ground has been advanced by counsel for Acting Governor Swift for this court to set aside or disregard this decision of the Supreme Judicial Court. It is a decision on an issue of Massachusetts law as applied to the facts of this case. The dissent cannot change the fact that the Supreme Judicial Court, even though by a majority vote rather than a unanimous vote, has so decided. This court must give respect and effect to that decision,
d. Beyond genuine dispute, Acting Governor Swift took action against plaintiff because of his votes.
In the wake of Mr. Mihos' October 30, 2001 vote to increase tolls in July 2002 rather than January 2002, on November 16, 2001, Acting Gov. Swift delivered letters to Mr. Mihos and Mr. Levy informing them that she was removing them from their offices as Members of the Authority. Beyond genuine dispute, no such letter was sent to the third member, who voted in line with the Acting Governor's preference. These are objectively observable facts that this court cannot disregard.
e. The existence of a "balancing test" does not defeat the "clearly established" nature of plaintiff's First Amendment right.
Defense counsel argues that even if a "balancing test" would tip in favor of the plaintiff, the fact that a "balancing test" applies at all means the constitutional right the Acting Governor allegedly violated cannot be considered "clearly established." Citing Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992), defense counsel contends that any right that is subject to a "balancing test" cannot be "clearly established." The opinion in Frazier stated:
"[I]f the existence of a right or degree of protection it warrants in a particular context is subject to a balancing test, the right can rarely be considered "clearly established,' at least in the absence of closely corresponding factual and legal precedent."Id. at 931 (quoting Myers v. Morris, 810 F.2d 1437, 1462 (8th Cir. 1987) (emphasis added).
Defense counsel's argument regarding the effect of a "balancing test" cannot apply in this case, however, because this court must be guided by the opinions in two First Circuit cases. See Miller v. Town of Hull, Massachusetts, 878 F.2d 523 (1St Cir. 1989); Stella v. Kelley, 63 F.3d 71 (1st Cir. 1995). In Miller, the First Circuit held that town selectmen violated a clearly established constitutional right when they removed elected redevelopment authority members because the selectmen disagreed with a vote taken by the authority members. According to the opinion inMiller:
At the time the removals were effected, there was firmly embedded in our constitutional fabric the principle that government employees could not be discharged for reasons that infringed on the employee's right of freedom of speech. . . . . . . [R]emoval of the members for voting as they did, was an egregious violation of plaintiffs' first amendment right.Miller, 878 F.2d at 534.
In Stella, appointed members of a zoning board alleged that selectmen removed them from the board in retaliation for votes they had cast. The opinion in Stella stated:
Voting by members of municipal boards, commissions, and authorities comes within the heartland of First Amendment doctrine, and the status of public officials' votes as constitutionally protected speech was established beyond peradventure of doubt at the time the selectmen defenestrated the plaintiffs.Stella, 63 F.3d at 75 (emphasis added).
Under the guidance of these precedents, I conclude that the Acting Governor violated a "clearly established" constitutional right. The First Circuit has decided that members of a board have a clearly established constitutional right to vote on public issues important to that board, and that terminating a board member in retaliation for such a vote violates the First Amendment.
A possible ground of distinguishing the case at hand from these precedents might be advanced. Unlike the members in Miller, the members of the Authority in this case were appointed. not elected. The members inStella, however, also were appointed and the opinion in Stella did not find that distinction sufficient to defeat the "clearly established" nature of the constitutional right. Instead, the court stated that the elected/appointed distinction is "a distinction without a difference."Stella, 63 F.3d at 76. Guided by these First Circuit decisions, I conclude that this distinction does not work to the benefit of the Acting Governor in the present case.
It is true that an elected official is chosen by the public and for that reason needs to he free to vote as he or she considers to be in the public's best interest. A superior official's removing an elected official from office, because of disagreement with that elected official's vote, is a significant limitation on that elected official's ability to represent the very public who elected him or her. But it is also true that an appointed official has a responsibility to act in the public interest, and deserves protection against retaliation for doing so.
Guided by First Circuit precedents, I conclude that, beyond genuine dispute, a violation of plaintiffs clearly established First Amendment right occurred in this case.
f. Qualified immunity does not apply.
Defense counsel's principal argument in defense of Acting Governor Swift is that a reasonable official in her position could not have known that discharging plaintiff in retaliation for votes cast by plaintiff violated a constitutionally protected right of plaintiff. The defense argument proceeds that three members of the Supreme Judicial Court inLevy II decided that the evidence produced before the Governor was sufficient to establish adequate cause for the removal decision. The defense reliance on the disagreement among the Justices of the Supreme Judicial Court is misplaced. As expalined in Part V.C.3.c. above, the majority decision is the decision of the court and is controlling before this court in this case under the applicable First Circuit precedents.
Defendant cites the dissent as stating, "in my view, there was ample evidence that Levy and Mihos acted in a financially irresponsible manner leading up to and following the October 30, 2001, vote on toll increases." Levy II, 436 Mass. at 762 ( Cordy, dissenting) (emphasis added). In this quoted passage, the dissent addressed actions associated with the time of the vote, but not the vote itself In doing so, the dissent expressed only an opinion that the Governor had the authority to remove plaintiff based on other evidence. But, their dissenting view is overridden by the decision of the court as a whole.
If this court were to allow the fact of a dissent to support qualified immunity, it would in effect be setting aside or disregarding the majority decision of the Supreme Judicial Court on an issue of law. Guided by the First Circuit decisions cited above, I conclude that it would be inappropriate for this court to make that decision in disregard of the majority decision of the Supreme Judicial Court on the circumstances of this case.
Stated another way, the decision of this court in this case is that defense counsel has failed to show that Acting Governor Swift acted in an objectively reasonable manner under clearly established law when removing plaintiff from his position as a member of the Massachusetts Turnpike Authority.
ORDER
For the foregoing reasons it is ORDERED:
(1) Plaintiff's Motion for Extension of Time to File response to Defendant's Motion to Dismiss (Docket No. 10) is GRANTED.
(2) Plaintiffs Motion to Dismiss Claims Against Defendant William F. Galvin and Against Defendant Jane M. Swift in her Official Capacity (Docket No. 9,) is GRANTED.
(3) Defendants' Motion to Dismiss (Docket No. 5) is GRANTED as to plaintiffs claims against the defendant William Galvin, those claims against Governor Swift in her official capacity, and the requests for injunctive relief and is DENIED in all other respects.
(4) The only remaining issue or issues this court must decide concern what relief to plaintiff is appropriate. The parties' arguments on this matter will be heard at the next Case Management Conference set for 9:00 a.m. on November 26, 2002.
In advance of the Case Management Conference (CMC), the parties must file submissions stating their respective positions as to whether plaintiff should receive any of the following: monetary damages, punitive damages, and some form of declaratory relief. The deadlines for the filing of these submissions is three court days before the CMC.