Garcia v. Board of Educ. of Socorro Consol. School Dist., s. 82-1174

• Decision Date: 22 November 1985
• Docket Number: Nos. 82-1174,82-1185 and 82-1238,s. 82-1174
• Citation: 777 F.2d 1403
• Parties: 28 Ed. Law Rep. 1017 J. Placidio GARCIA, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF EDUCATION OF the SOCORRO CONSOLIDATED SCHOOL DISTRICT, Leo Lujan, Margene Harris, Daniel Trujillo and David Shortess, Defendants/Counter- claimants/Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1403

777 F.2d 1403

28 Ed. Law Rep. 1017

J. Placidio GARCIA, Plaintiff-Appellee, Cross-Appellant, v. BOARD OF EDUCATION OF the SOCORRO CONSOLIDATED SCHOOL DISTRICT, Leo Lujan, Margene Harris, Daniel Trujillo and David Shortess Defendants/Counter- claimants/Appellants Cross-Appellees.

Nos. 82-1174, 82-1185 and 82-1238.

United States Court of Appeals Tenth Circuit.

Nov. 22, 1985.

Kenneth J. Ferguson (Bruce Hall and Jo Saxton Brayer with him on brief) of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N.M., for defendants/counter-claimants/appellants, cross-appellees.

J. Douglas Compton, of Bovis, Kyle and Burch, Atlanta, Ga., for individual defendants as counter-claimants/appellants, cross-appellees.

Ronald J. Van Amberg (Charles S. Solomon and Carl Bryant Rogers with him on brief) of Roth, Van Amberg & Gross, Santa Fe, N.M., for plaintiff-appellee, cross-appellant.

Before HOLLOWAY, Chief Judge, and SETH and McKAY, Circuit Judges.

PER CURIAM.

Plaintiff, Superintendent of the Socorro Consolidated School District of New Mexico, brought a section 1983 ¹ action alleging violation of his first amendment rights and claiming that he was deprived of liberty and property without due process. His claims arose out of the school board's decision not to renew his contract. Plaintiff named the Board of Education and the members who voted against renewing his contract as defendants. The members were named in both their individual and official capacities. During trial, plaintiff dropped the claims against the board members in their individual capacities.

Initially, the board gave no public reasons for its decision not to renew the plaintiff's contract. Upon learning about the nonrenewal, plaintiff made statements to various persons that his contract was not being renewed because he had refused to let the board coerce him into performing an illegal act. After these statements were republished in the local newspapers, the board held a special meeting to draft a statement discussing the reasons for nonrenewal of plaintiff's contract. The reasons--which included conduct detrimental to staff morale, that plaintiff was hard to work with, and that constituents were unhappy--were announced publicly and reprinted in local newspapers. Based on the dismissal and the statement drafted by the board, plaintiff filed this action alleging denial of first amendment, property, and liberty rights. The board members counterclaimed for defamation.

The trial judge instructed the jury on plaintiff's liberty claim, but refused to instruct on either the first amendment or property claims. As to the counterclaim, the court instructed the jury that, in order to recover on their defamation claim, the school board members, as public officials, ² must prove that plaintiff's statements were made with "actual malice." The jury awarded plaintiff $180,000 and defendants nothing.

On appeal, plaintiff challenges the trial court's refusal to instruct the jury on the first amendment and property claims. The school board members argue that the trial court erred in failing to direct a verdict on plaintiff's liberty claim, and they challenge the trial court's finding that they were bound by the actual malice standard of proof. They also argue, for the first time on appeal, that they are immune from suit under the eleventh amendment.

I. ELEVENTH AMENDMENT

Initially, the issues raised on appeal and addressed in the parties' briefs were limited to the trial court's handling of the first amendment, due process, and defamation claims. Shortly after the briefs were filed, the school board members submitted a letter to this court asserting that the school district and board members in their official capacities enjoy eleventh amendment immunity. The eleventh amendment claim was addressed at oral argument although not yet fully briefed. Three sub-issues are important: (1) whether the issue was timely raised; (2) whether the board members are estopped from raising the issue; and (3) if the issue is properly before the court and estoppel does not apply, whether the school board is in fact entitled to immunity.

A. Was the Eleventh Amendment Defense Timely Raised?

The board members raised the eleventh amendment as a defense in their Answer, First and Second Amended Answers, and in the Pre-Trial Order. Apparently, however, they did not pursue the defense, and the trial judge failed to rule on it. An eleventh amendment defense is jurisdictional and may be raised for the first time on appeal. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974) (citing Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 466-67, 65 S.Ct. 347, 351-52, 89 L.Ed. 389 (1945)). Further, it may be argued on appeal even if it was raised but abandoned at the trial level. See Sosna v. Iowa, 419 U.S. 393, 396 n. 2, 95 S.Ct. 553, 555 n. 2, 42 L.Ed.2d 532 (1975). The plaintiff argues that Patsy v. Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982), retreated from the broad holdings of Edelman and Ford Motor. However, since Patsy, the Supreme Court has reaffirmed that an eleventh amendment defense may be raised at any time in the proceedings. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 n. 8, 104 S.Ct. 900, 907 n. 8, 79 L.Ed.2d 67 (1984). We sympathize with the trial court and the plaintiff when they have been "sand bagged" as they were on this issue. However, the cases dictate this post-trial revision of the issues.

B. Are the Defendants Estopped from Raising the Defense?

The plaintiff further asserts that the school board should be estopped from raising the eleventh amendment defense. The action was initially against the board members in both their individual and official capacities. During trial, plaintiff dropped his claims against the board members in their individual capacities. Three exchanges between the court and the attorneys are important. In the first exchange, the court addressed the plaintiff's attorney and asked him whether plaintiff wanted a jury instruction for punitive damages. The judge suggested that explaining and distinguishing between the claims against defendants in their individual and official capacities would confuse the jury. In essence, the court recommended that plaintiff drop one of the claims, preferably the claim against defendants in their individual capacities. Although present, the school board's attorney did not participate in this exchange. Record, vol. 3, at 171-73. On the next day of trial, the court again addressed plaintiff's attorney, inquiring whether any decision had been made about dropping one of the claims. Plaintiff's attorney, noting that he had conferred with his client and with co-counsel, informed the court that plaintiff wanted to drop the claim against defendants in their individual capacities. The defense attorney's only participation in this exchange was to state that he and the defendants' insurer had no problem with this decision. Record, vol. 4, at 4-5. Then, in chambers, when the trial judge and attorneys for both plaintiff and defendants discussed the final version of the jury instructions, the following conversation took place:

THE COURT: [T]he instructions are drafted as against the Defendants strictly in their official capacities. I understood that's the way the Plaintiff wanted it. Therefore, that takes out any issue of punitive damages and also any issue of good faith. So if there's no hooker--There's no problem; if the Plaintiff is entitled to a verdict, its recoverable. I assume that's true.

[Defense Counsel]: That's true, Your Honor.

* * *

THE COURT: I mean if the Plaintiff were recovering, then all at once the school district will not respond or claim some kind of immunity or something.

[Defense Counsel]: No. They probably would not have the money, but there's no problem with that.

[Plaintiff's Counsel]: Of course, if there's nothing with the County, the Constitution provides for that.

Record, vol. 5, at 42-43.

Thus it appears that, had the school board's attorney indicated that an eleventh amendment defense would be further pursued, the trial court might have reconsidered its recommendation that plaintiff drop his claim against the defendants in their individual capacities. Further, when the court gave the parties the opportunity to preserve the record by making objections, defendants did not object to the court's failure to rule on the defense.

However, the parties fail to address the issue of whether the school board's attorney has the authority to waive sovereign immunity. Sovereign immunity in New Mexico is now a statutory creation. In Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975), the New Mexico Supreme Court abolished common law sovereign immunity. In response, the legislature enacted the Tort Claims Act, reinstating governmental immunity except in eight classes of activity. N.M.Stat.Ann. Secs. 41-4-4 to -12 (1978). None of the eight exceptions apply to this case. Under section 41-4-4, waiver of immunity is limited to and governed by N.M.Stat.Ann. Secs. 41-4-13 to -25 (1978). These sections do not authorize the school board's attorney to waive sovereign immunity. Thus we find that the school board is not estopped from raising eleventh amendment immunity at this time.

C. Do the Local School Board Members in Their Official Capacity Enjoy the State's Sovereign Immunity under the Eleventh Amendment?

A nonconsenting state is immune from suit brought in federal court by her own citizens as well as by citizens of another state. See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Further, a suit in a federal court against the members of a state board or agency acting in their official capacities is a suit against the board or agency itself, and is subject to the eleventh amendment immunity restriction. However, since Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (197...