Stella v. Kelley

• Decision Date: 01 August 1995
• Docket Number: No. 95-1223,95-1223
• Citation: 63 F.3d 71
• Parties: Charles STELLA, et al., Plaintiffs, Appellees, v. John J. KELLEY, Jr., et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 71

63 F.3d 71

Charles STELLA, et al., Plaintiffs, Appellees, v. John J. KELLEY, Jr., et al., Defendants, Appellants.

No. 95-1223.

United States Court of Appeals First Circuit.

Heard Aug. 1, 1995.

Decided Aug. 23, 1995.

Richard E. Brody, with whom Thomas M. Elcock and Morrison, Mahoney & Miller, Boston, MA, were on brief, for appellants.

Harvey A. Schwartz, with whom Schwartz, Shaw & Griffith, Boston, MA, was on brief, for appellees.

Before SELYA, CYR and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

This appeal, which requires us to apply the teachings of Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), furnishes virtually a textbook model of the limits of interlocutory review of qualified immunity matters in the post-Johnson era. We conclude that we have jurisdiction over only one facet of the appeal and, on that facet, we affirm the challenged order.

I. BACKGROUND

This case comes before us for the second time. See Stella v. Town of Tewksbury, 4 F.3d 53 (1st Cir.1993). We retell the tale only to the extent necessary to put the issues that we must decide into workable perspective.

In Tewksbury, Massachusetts (the Town), the five members of the Zoning Board of Appeals (the Board) are appointed for fixed terms by the Town's governing body (the Board of Selectmen) and may be removed during their terms only for cause. Plaintiffs Charles Stella, J. Peter Downing and Bruce Gordon formerly served on the Board. In that capacity, they voted to grant several controversial variances. When residents complained and the selectmen urged stricter enforcement of the Town's zoning code, the Board balked. Even after the selectmen instigated a citizens' petition demanding greater rigor, and succeeded in attracting over 1,000 signatures, the Board did not mend its ways.

In October of 1989, the selectmen created a two-member subcommittee to investigate the Board's performance. The subcommittee held public hearings at which various complaints were aired. When the Board refused to change course, the selectmen decided to clean house. After the Commonwealth's attorney general thwarted an effort by two selectmen, John J. Kelley, Jr. and William J. Hurton, to reduce the size of the Board from five members to three, the selectmen instituted proceedings regarding the possible removal of Board members for cause. ¹ This time, a bare majority of the selectmen--Kelley, Hurton, and Thomas Camara--succeeded in ousting members of the Board from office on a series of three-to-two votes. ²

In May 1991, three of the casualties of this putsch filed suit against Kelley, Hurton, Camara, and the Town pursuant to 42 U.S.C. Sec. 1983 (1988). Their flagship claim was that the selectmen cashiered them in retaliation for their speech (the votes they had cast) thus abridging the First Amendment. ³

We need not recount the murmur of skirmishes that ensued. It suffices to say that after two notoriously false starts (one of which sparked the parties' earlier journey to this court) the selectmen moved for summary judgment on qualified immunity grounds. The district court at first granted the motion but, on reconsideration, reversed its field. The selectmen now appeal from the order denying summary judgment.

II. DISCUSSION

We begin with the architecture of the qualified immunity defense. We then consider the teachings gleaned from Johnson v. Jones. Finally, we apply the lessons we have learned to the problems that confront us.

A

Public officials accused of civil rights violations may raise the defense of qualified immunity as a shield against claims for damages arising out of their actions. If, however, the official's conduct violated some right emanating from federal law, and if the law was clearly established at the time of the infringement, so that an objectively reasonable actor would have realized that his conduct violated the plaintiff's rights, then the qualified immunity defense is unavailable. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.1992). Thus, the doctrine of qualified immunity limits a plaintiff's damages against state actors "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

The meaning of the adjectival phrase "clearly established," as it operates in the qualified immunity arena, has not always been clearly established. The Court has, however, attempted to explicate the phrase:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citation omitted); see also Crooker v. Metallo, 5 F.3d 583, 585 (1st Cir.1993); Rodi v. Ventetuolo, 941 F.2d 22, 30 (1st Cir.1991). We recently wrote: "The inquiry into the nature of a constitutional right for the purpose of ascertaining clear establishment seeks to discover whether the right was reasonably well settled at the time of the challenged conduct and whether the manner in which the right related to the conduct was apparent." Martinez v. Colon, 54 F.3d 980, 988 (1st Cir.1995).

B

The qualified immunity defense is, in part, an immunity from trial as well as an immunity from damage awards. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Thus, the defense may be asserted by a pretrial motion and, if the motion is rejected, immediate appellate review is sometimes available. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).

In Johnson v. Jones, the Supreme Court cast new light on the circumstances under which an immediate appeal will lie from the denial of a pretrial motion asserting a qualified immunity defense. The plaintiff, Houston Jones, brought a section 1983 action against five police officers, claiming that they used excessive force incident to his arrest and detention. Three of the five officers proffered a qualified immunity defense and moved for summary judgment, contending that they knew nothing about the alleged beating. The district court denied the motion finding enough circumstantial evidence to raise genuine issues of material fact anent the movants' liability. The movants pursued an interlocutory appeal, arguing that the record reflected no trialworthy questions. The Seventh Circuit dismissed the appeal, discerning an absence of appellate jurisdiction. 26 F.3d 727, 728 (7th Cir.1994).

The Supreme Court granted certiorari and, resolving a split in the circuits, ⁴ held that "a defendant, entitled to invoke a qualified-immunity defense, may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a 'genuine' issue of fact for trial." Johnson, --- U.S. at ----, 115 S.Ct. at 2159. Thus, on the one hand, a district court's pretrial rejection of a proffered qualified immunity defense remains immediately appealable as a collateral order to the extent that it turns on a pure issue of law, notwithstanding the absence of a final judgment. See id. at ----, 115 S.Ct. at 2158; Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817. On the other hand, a district court's pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that it turns on either an issue of fact or an issue perceived by the trial court to be an issue of fact. See Johnson, --- U.S. at ----, 115 S.Ct. at 2159. In such a situation, the movant must await the entry of final judgment before appealing the adverse ruling. See id.; see also 28 U.S.C. Sec. 1291 (1988).

The bottom line, then, is simply this: a summary judgment order which determines that the pretrial record sets forth a genuine issue of fact, as distinguished from an order that determines whether certain given facts demonstrate, under clearly established law, a violation of some federally protected right, is not reviewable on demand. In reaching this branch of its holding, the Court abrogated our earlier decision in Unwin v. Campbell, 863 F.2d 124, 132 (1st Cir.1988) (determining that appellate jurisdiction exists in qualified immunity cases for interlocutory appeals brought to test denials of summary judgment that turn on questions of alleged evidentiary insufficiency). Consequently, we acknowledge that Unwin and its progeny are no longer good law. ⁵

C

The threshold question for our consideration is whether Johnson applies retroactively to cases pending on direct appeal on the date the Court handed down its opinion. We hold that it does. When dealing with matters that govern a court's jurisdiction, there is no conceivable bar to retroactive application of a "new," judicially declared rule. Thus, regardless of the fact that the selectmen filed their notice of appeal prior to the Court's decision, Johnson controls.

In this case, Johnson requires that we parse the complaint. The plaintiffs claim that the selectmen removed them from the Board because of their voting patterns, and that this unceremonious dumping infringed a constitutionally protected right (free speech). The legal framework that applies to claims of this genre is settled beyond hope of contradiction. When a former government employee brings a First Amendment suit against his employer for taking an adverse employment action against him on the basis of his speech, the premier precedent is Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Under the Mt. Healthy paradigm, the plaintiff must show both...