Aulson v. Blanchard

• Decision Date: 05 March 1996
• Docket Number: No. 95-2233,95-2233
• Citation: 83 F.3d 1
• Parties: Alan AULSON et ux. Maureen Aulson, Plaintiffs, Appellants, v. Charles BLANCHARD, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

83 F.3d 1

64 USLW 2697

Alan AULSON et ux. Maureen Aulson, Plaintiffs, Appellants, v. Charles BLANCHARD, et al., Defendants, Appellees.

No. 95-2233.

United States Court of Appeals First Circuit.

Heard March 5, 1996.

Decided April 25, 1996.

Appeal from the United States District Court for the District of Massachusetts; Hon. George A. O'Toole, Jr., U.S. District Judge.

Gary S. Sackrider, Salem, MA, for appellants.

Joyce Frank, with whom Michele E. Randazzo and Kopelman and Paige, P.C., Boston, MA, were on brief, for appellees.

Before SELYA, STAHL and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

This appeal demands that we mull the prerequisites for liability under the Ku Klux Klan Act, 42 U.S.C. § 1985(3) (1994). We hold that (1) the class-based animus required to ground a private right of action under the statute applies to conspiracies allegedly involving public officials in the same way as it applies to all other conspiracies; and (2) the requirement is not satisfied where, as here, no sufficiently defined class appears. Accordingly, we affirm the district court's dismissal of the action.

I. BACKGROUND

Whether or not it is true that all politics is local, this case bears witness that local politics, no less than national politics, can become meanspirited. From 1984 to 1990, plaintiff-appellant Alan Aulson served as a selectman in Georgetown, Massachusetts. In his complaint, he alleges that the defendants (a cadre of elected and appointed municipal officeholders) are members of an incumbent group of "old guard politicians" who more or less run things in the town. In contrast, he is a "member[ ] of a political group which supports candidates who oppose the politics of the 'old guard.' " The complaint charges that Aulson paid a stiff price for his opposition: the members of the old guard collogued against him and wreaked their vengeance by such nefarious means as conducting illegal searches pursuant to sham prosecutions. This course of conduct, he asserts, gives rise to a cause of action under 42 U.S.C. § 1985(3).

Aulson originally brought his suit in a state venue. ¹ Remarking the federal question, the defendants removed it to the district court and then sought dismissal under Fed.R.Civ.P. 12(b)(6). Despite the plaintiff's objection, the district court granted the motion to dismiss. This appeal ensued.

II. ANALYSIS

Inasmuch as the trial judge dismissed the complaint for failure to state an actionable claim, we review his decision de novo, accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff's favor. See Leatherman v. Tarrant County N.I. & C. Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir.1990). We hasten to add, however, that this deferential standard does not force an appellate court to swallow the plaintiff's invective hook, line, and sinker; bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like need not be credited. See Correa-Martinez, 903 F.2d at 52; Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16 (1st Cir.1989). It is only when the facts alleged, if proven, will not justify recovery that an order of dismissal under Rule 12(b)(6) may stand. See Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988).

A

Section 1985(3) proscribes certain enumerated conspiracies. ² To state a claim under § 1985(3) a plaintiff must allege the existence of (1) a conspiracy, (2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of the equal protection of the laws or of equal privileges and immunities under the laws, (3) an overt act in furtherance of the conspiracy, and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). In Griffin, the Supreme Court placed a gloss on these four elements, effectively adding a fifth requirement. It construed the statute's references to "equal protection" and "equal privileges and immunities under the laws" to signify that a plaintiff may recover thereunder only when the conspiratorial conduct of which he complains is propelled by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus." Id.

B

This added requirement looms as an insurmountable obstacle to the plaintiff's attempted embrace of § 1985(3). He seeks to ameliorate this difficulty in two different ways: he strives first to detour around the obstacle, and, failing, he then tries to climb over it.

1. Public/Private Conspiracies. The plaintiff's effort to bypass the point entirely centers around his insistence that the requirement of a class-based discriminatory animus applies only to wholly private conspiracies (that is, conspiracies that do not involve public officials acting as such), and that he need neither allege nor prove a class-based animus in this action (which is directed at a conspiracy that allegedly involves public officials doing the public's business).

This gambit has been tried in several other circuits and has uniformly been found wanting. See Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2577, 132 L.Ed.2d 827 (1995); Haverstick Enterps., Inc. v. Financial Fed. Credit, Inc., 32 F.3d 989, 994 (6th Cir.1994); Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir.1994); Burrell v. Board of Trustees of Ga. Military Coll., 970 F.2d 785, 794 (11th Cir.1992), cert. denied, 507 U.S. 1018, 113 S.Ct. 1814, 123 L.Ed.2d 445 (1993); Munson v. Friske, 754 F.2d 683, 694-95 & n. 8 (7th Cir.1985). Although this court has never squarely repudiated the gambit, we have on at least two occasions required (albeit without substantive comment) that a class-based animus be shown notwithstanding that public officials were alleged to be active participants in the particular conspiracies there at issue. See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir.1996); Daley v. Town of New Durham, 733 F.2d 4, 7 (1st Cir.1984). Thus, following the path down which the plaintiff beckons not only would set us apart from our sister circuits but also would undermine our own precedents.

In all events, an unforced reading of § 1985(3) affords no principled basis for distinguishing between public and private conspiracies. Griffin neither supports nor suggests the existence of such a distinction, and, at any rate, it is not the proper province of a federal court to rewrite a statute under the guise of interpretation. Thus, we decline the plaintiff's invitation to create by judicial fiat two classes of § 1985(3) conspiracies along a public/private axis.

So ends this phase of our inquiry. To the extent that we have not previously made the scope of the requirement explicit, we now hold that to state a claim under § 1985(3) in respect to conspiracies involving public officials, private actors, or both, plaintiffs must allege that the conduct complained of resulted from an invidiously discriminatory class-based animus.

2. Cognizable Classes. The plaintiff next struggles to surmount the obstacle instead of skirting it. He contends that he is a member of a class protected by § 1985(3), and that he has alleged as much. His contention does not withstand the mildest scrutiny.

The complaint is a lengthy, somewhat prolix narrative. In regard to the class-based animus requirement, however, it states nothing more than that Alan Aulson and a named confederate (not a party to the suit) are "representative members" of a "class" that is composed solely of persons who support candidates opposed to the politics of the "old guard," and that the defendants are members of the "old guard." On this skimpy predicate, the plaintiff posits that the ad hoc "opposition group" is a class, and that the defendants' supposed animus against it is class-based within the meaning ascribed to that adjectival term by the Griffin Court. We do not agree.

We have previously interpreted the Griffin gloss to denote that plaintiffs must allege facts showing that (1) the defendants conspired against them because of their membership in a class, and (2) the criteria defining the class are invidious. See Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir.1975); cf. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269, 113 S.Ct. 753, 759, 122 L.Ed.2d 34 (1993) (holding that women seeking abortions are not a class within the confines of § 1985(3)); United Bhd. of Carpenters v. Scott, 463 U.S. 825, 837, 103 S.Ct. 3352, 3360-61, 77 L.Ed.2d 1049 (1983) (holding that a group defined by economic criteria does not constitute a class for purposes of § 1985(3)). The Supreme Court has not decided whether political differences are invidious criteria that qualify the classes that they define for the protection of § 1985(3). See Scott, 463 U.S. at 837, 103 S.Ct. at 3360-61 (reserving the question of whether § 1985(3) covers more than racially directed conspiracies); Griffin, 403 U.S. at 102 n. 9, 91 S.Ct. at 1798 n. 9 (same).

Although other federal courts have divided on this question, see infra, we have not yet had occasion to lend our institutional voice to the rising cacophony that surrounds it. Nor need we do so today. Whether or not political classes are covered by § 1985(3), the particular class that Aulson proposes does not constitute a cognizable class at all.

The notion of a cognizable class includes two separate and distinct components. The first component focuses on the substantive characteristic defining the class, e.g., race or gender or political affiliation. While it is universally acknowledged that racial classes are within the ambit of § 1985(3), see, e.g., Griffin, 403 U.S. at 102, 91 S.Ct. at...