70 F.3d 1552 (9th Cir. 1995), 94-35721, Voigt v. Savell

Docket Nº:94-35721.
Citation:70 F.3d 1552
Party Name:D.A.R. 15,413 J. Burk VOIGT, Plaintiff-Appellant, v. Richard D. SAVELL; Ronald J. Woods; Karrold Jackson; State of Alaska, Defendants-Appellees.
Case Date:November 22, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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70 F.3d 1552 (9th Cir. 1995)

D.A.R. 15,413

J. Burk VOIGT, Plaintiff-Appellant,

v.

Richard D. SAVELL; Ronald J. Woods; Karrold Jackson;

State of Alaska, Defendants-Appellees.

No. 94-35721.

United States Court of Appeals, Ninth Circuit

November 22, 1995

Argued and Submitted Sept. 13, 1995.

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Robert John and J. Burk Voigt, Fairbanks, Alaska, for plaintiff-appellant.

Frank S. Koziol, Anchorage, Alaska, for defendants-appellees.

Appeal from the United States District Court for the District of Alaska.

Before: WRIGHT, ALARCON and CANBY, Circuit Judges.

OPINION

ALARCON, Circuit Judge:

J. Burk Voigt appeals from the dismissal of this action against Richard D. Savell, Presiding Judge of the Fourth Judicial District of the Alaska Court System, and several senior members of the Alaska Court System's administrative staff. 1 Voigt contends that the district court erred in granting summary judgment in favor of the defendants on his claims under 42 U.S.C. Sec. 1983 for unlawful

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discharge in violation of his First Amendment right to free speech and his Fourteenth Amendment right to procedural due process. He further contends that the district court erred in granting summary judgment in favor of the defendants on his claim under 42 U.S.C. Sec. 1985 in which he alleges that the defendants conspired to discriminate against non-residents of Alaska when hiring court personnel.

We affirm the district court's judgment. With regard to the First Amendment claim, an application of the balancing test articulated in Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), leads us to conclude that Voigt's speech is not entitled to constitutional protection in the context of his wrongful discharge action. We need not reach the merits of the Fourteenth Amendment claim because, in the district court, Voigt expressly abandoned his claim that the defendants violated his federal procedural due process rights. We affirm the district court's judgment on Voigt's section 1985(3) claim because Voigt does not have standing to assert this claim.

I

Voigt was hired on July 17, 1989 by the Alaska Court System as the Clerk of the Court and Assistant Area Court Administrator for the Fairbanks trial courts. He became a permanent tenured employee one year later. Voigt's relationship with Judge Savell can best be described as strained from at least as early as January of 1991. On January 15, 1991, shortly after assuming his duties as the new presiding judge, Judge Savell sent two memoranda to Voigt expressing concerns about the way in which Voigt was carrying out his responsibilities. One of these memoranda stated that an action Voigt had taken had not been authorized and was "a real blunder." Voigt responded on January 17, 1991, with a memorandum to Savell, in which he addressed what he considered "the development of a very serious impediment to our relationship." In this memorandum, Voigt expressed confusion as to why Judge Savell considered him to be "the bad guy" with regard to various situations in the office and stated that "[w]hile your target may have been me personally, your indiscriminate and general comments deny the tremendous accomplishments my office has made[.]"

On March 24, 1992, Voigt received an intent-to-dismiss letter signed by defendants Savell and Woods. The five-page letter sets forth, as one of the reasons for Voigt's termination, his "consistent pattern of making inappropriate statements to subordinate employees[,]" such as "statements to supervisors and other court employees designed to torpedo the selection of Judith Cramer as [a court administrator]." The letter also states that Voigt had engaged in insubordinate behavior, citing Voigt's criticism of Judge Savell's decision to uphold a grievance filed by Roberta Demoski, a resident of Alaska who complained when Voigt did not hire her for a clerk position. 2 Because Voigt relies on his speech regarding these two incidents as the basis for his First Amendment claim, we set forth the facts surrounding these incidents in detail.

In early 1991, Judge Savell sought to hire a new Fairbanks Area Court Administrator ("ACA"). After interviewing four individuals for the position in mid-April, he first offered the position to Judith Cramer, an Ohio resident and that state court's administrator. Cramer declined the position. On Friday, April 26, 1991, Judge Savell offered the ACA position to Don Mills, an Oregon resident and that state court's administrator. Mills accepted the position. The following Monday Cramer called Judge Savell and indicated that she had changed her mind and wanted to accept the position.

Judge Savell consulted by telephone with every judge he could find in the district in order to obtain their consent to the cancellation of Mills' employment contract so he could award the position to Cramer. Every

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judge whom Judge Savell contacted approved of the proposed action, except for Judge Jay Hodges. Judge Savell then called Art Snowden, the Administrative Director of the Alaska Court System. Snowden approved the proposed action and authorized reimbursement to Mills for any losses or expenses he had incurred as a result of the recision of the agreement to employ him. Judge Savell notified Mills that the employment agreement had been cancelled and offered the position to Cramer.

Voigt was highly critical of the way Judge Savell handled the ACA hiring and of Judith Cramer, the person Judge Savell had chosen for the position. At a supervisors meeting attended by the various department heads of the Fairbanks court system on May 1, 1991, Voigt stated that Judge Savell "lacked honor and integrity" in his handling of the situation. He also questioned Judith Cramer's integrity and competency.

Voigt received a written reprimand on May 15, 1991 from Judge Savell. Judge Savell stated as one of the reasons for the reprimand Voigt's criticism to other staff members concerning the manner in which Judge Savell handled the hiring of Judith Cramer. Judge Savell informed Voigt that his comments went beyond mere disagreement with the decision to hire Cramer and the manner in which the selection was handled. He indicated that Voigt's comments appeared to be an attempt to "torpedo" the selection of Judith Cramer and to undermine any chance that she had of succeeding at her job. 3 Voigt testified at his deposition that he did not agree with the reprimand, but chose not to grieve it.

The second incident Voigt relies on as the basis for his First Amendment claim involves his criticism of a decision by Judge Savell to uphold a grievance filed by Roberta Demoski. On February 7, 1992, Voigt hired Margaret Crawford, a non-resident of Alaska, for a court clerk position, instead of Demoski, a court clerk from Galena, Alaska. Voigt testified that he hired Crawford, one of Judge Savell's former law clerks, because he felt that her legal experience, education, and personality best qualified her for the position.

Demoski filed an informal grievance following Voigt's decision. Judge Savell issued a decision on February 25, 1992, in which he concluded that Demoski's grievance was valid. He found that Voigt had applied improper criteria and had ignored a personnel rule when choosing Crawford over Demoski. Judge Savell ordered that Demoski be transferred to the Fairbanks clerk's office so she could be placed in the first available position for which she was qualified.

Voigt discussed Judge Savell's decision to uphold Demoski's grievance with at least five other court employees. He expressed his concern that Judge Savell was motivated to issue the decision because he was "out to get" him, especially since Voigt had spoken out regarding the Cramer/Mills incident. Voigt also speculated that Judge Savell and possibly other members of the court practiced an unspoken policy of discriminating against non-residents of Alaska who apply for positions with the court system. He voiced this concern to at least one other court employee. Voigt never expressed his concern over the allegedly discriminatory hiring practices to the media or to any person who was not a court employee.

After receiving the intent-to-dismiss letter on March 24, 1992, Voigt requested a pre-termination hearing. The hearing was held on March 26, 1992, by Judge Niesje J. Steinkruger. The following day, Judge Steinkruger issued a decision in which she found reasonable grounds to believe that the charges against Voigt were true and supported the proposed action of termination of employment.

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Voigt was formally terminated on March 27, 1992.

Voigt pursued the Alaska Court System's formal grievance process which provides for an investigation by the Administrative Director's office. The investigator upheld Voigt's termination. Voigt did not pursue the next step in the court system's grievance process which provides for a hearing before a hearing officer because he felt he was unlikely to receive a fair and impartial hearing.

II

Voigt filed this action on April 17, 1992. The defendants filed a motion for partial summary judgment on August 9, 1993, seeking dismissal of all of Voigt's federal claims. The district court granted partial summary judgment in favor of the defendants on Voigt's federal claims and entered judgment dismissing all of Voigt's claims on June 20, 1994. Voigt's state claims were dismissed without prejudice to further proceedings in state court.

III

Voigt asserts that the defendants failed to comply with the merit principles mandated by the Alaska Constitution, Alaska statutes, and the court...

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