Andrews v. Department of Environmental Protection

• Decision Date: 03 August 1998
• Docket Number: Docket No. K
• Parties: 14 IER Cases 1859, 1998 ME 198 Jon ANDREWS v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al. en-97-657.
• Court: Maine Supreme Court

Page 212

716 A.2d 212

14 IER Cases 1859, 1998 ME 198

Jon ANDREWS v. DEPARTMENT OF ENVIRONMENTAL PROTECTION, et al.

Docket No. Ken-97-657.

Supreme Judicial Court of Maine.

Argued May 5, 1998.

Decided Aug. 3, 1998.

David G. Webbert (orally), Johnson & Webbert, L.L.P., Augusta, for plaintiff.

Andrew Ketterer, Attorney General, Dennis J. Harnish, Asst. Atty. Gen. (orally), Augusta, for defendants.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and SAUFLEY, JJ.

RUDMAN, Justice.

¶1 The Department of Environmental Protection and several of its employees in their personal capacities ¹ appeal from the denial in part by the Superior Court (Kennebec County, Alexander J.) of their motion for a summary judgment. The defendants contend that the court erred in determining that disputed issues of fact precluded the grant of a summary judgment. Andrews asserts that the defendants' interlocutory appeal must be dismissed because it violates our final judgment rule. We deny the motion to dismiss and remand for the entry of a summary judgment in part.

¶2 Jon Andrews initiated this action against the DEP and against several of its employees in their personal capacities, alleging, inter alia, that they had violated his federal and state free speech rights by pursuing a course of adverse employment actions against him in retaliation for a letter he wrote to the Maine Times. Andrews sought declaratory, injunctive, and monetary relief pursuant to 42 U.S.C. § 1983 (1994 & Supp.1998) and pursuant to article I, section 4 of the Maine Constitution. The defendants moved for a summary judgment, arguing, inter alia, that they are entitled to qualified and sovereign immunity from his suit, and that a violation of the free speech clause of the Maine Constitution cannot support a private cause of action. Andrews opposed the motion, contesting sixty-four of the 117 assertions in the defendants' Statement of Undisputed Facts. The court denied the motion as to Andrews's constitutional claims ² on the basis that factual issues exist as to whether the defendants' employment actions towards Andrews were taken to retaliate for his speech. The defendants appeal.

I.

¶3 Andrews urges us to dismiss this appeal, arguing that it is impermissibly interlocutory pursuant to the decision of the United States Supreme Court in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). In Johnson, the Supreme Court limited federal courts' interlocutory review of summary judgment denials in qualified immunity cases. See id. at 313, 115 S.Ct. 2151. Previously, the Court had held that an interlocutory decision denying a claim of qualified immunity may be immediately appealed. See Mitchell v. Forsyth, 472 U.S. 511, 525-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In Johnson, however, the Court prohibited an immediate review of the denial of a summary judgment resulting from a conclusion that the record raises genuine issues of material facts concerning the defendants' conduct. See 515 U.S. at 313, 115 S.Ct. 2151. The defendants acknowledge the holding of Johnson but assert that we nevertheless may afford immediate review because they are willing to stipulate to Andrews's version of factual events for purposes of this appeal.

¶4 Although our final judgment rule generally bars immediate review of the denial of a summary judgment, we have determined that "the denial of a motion for a summary judgment based on a claim of immunity is immediately reviewable pursuant to" the death knell exception to the final judgment rule. J.R.M., Inc. v. City of Portland, 669 A.2d 159, 160 & n. 1 (Me.1995). The death knell exception "permits an appeal from an interlocutory order where substantial rights of a party will be irreparably lost if review is delayed until final judgment." Cook v. Cook, 574 A.2d 1353, 1354 (Me.1990) (citations and quotations omitted). The death knell exception applies to the denial of a summary judgment based on qualified immunity because qualified immunity confers more than immunity from damages; it is intended to provide immunity from suit, since " 'even such pretrial matters as discovery ... can be peculiarly disruptive of efficient government.' " J.R.M., 669 A.2d at 160 (quoting Mitchell v. Forsyth, 472 U.S. at 526, 105 S.Ct. 2806).

¶5 In this case, the Superior Court did not reach the issue of qualified immunity because it determined that the parties' factual disputes precluded a summary judgment. We must decide whether the defendants' willingness to stipulate to Andrews's version of factual events for purposes of this appeal permits us to review the denial of a summary judgment in this case pursuant to the death knell exception. The Supreme Court explained its Johnson holding in its decision in Behrens v. Pelletier:

Johnson held, simply, that determinations of evidentiary sufficiency at summary judgment are not immediately appealable merely because they happen to arise in a qualified-immunity case; if what is at issue in the sufficiency determination is nothing more than whether the evidence could support a finding that particular conduct occurred, the question decided is not truly 'separable' from the plaintiff's claim, and hence there is no 'final decision' ... summary-judgment determinations are appealable when they resolve a dispute concerning an 'abstract issu[e] of law' relating to qualified immunity--typically, the issue whether the federal right allegedly infringed was 'clearly established.'

516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (citations omitted). The First Circuit has interpreted Johnson and Behrens to permit a defendant who has been denied a summary judgment due to the existence of an issue of fact to "concede[ ] arguendo the facts found to be disputed ... [and] tak[e] an interlocutory appeal on a legal claim that the defendant is nevertheless entitled to qualified immunity on facts not controverted." Berthiaume v. Caron, 142 F.3d 12, 15 (1st Cir.1998); accord Vance v. Nunnery, 137 F.3d 270, 273 & n. 2 (5th Cir.1998); Jemmott v. Coughlin, 85 F.3d 61, 66 (2d Cir.1996). Although we are not bound by Johnson, Behrens, and their progeny, see Johnson v. Fankell, 520 U.S. 911, 117 S.Ct. 1800, 1803-04, 138 L.Ed.2d 108 (1997) (rejecting contention that states "must follow the federal construction of a 'final decision' "), we find their analyses persuasive. Because the defendants would lose their immunity from suit if we were to grant Andrews's motion to dismiss this appeal, we will examine whether, if Andrews were to persuade a trier of fact to accept his version of factual events, the defendants would be entitled to immunity from his claims.

II.

¶6 The DEP employs Jon Andrews as an Oil and Hazardous Materials Specialist in its Division of Response Services. Andrews's responsibilities include "field work responding to and directing the clean-up of oil and hazardous materials in order to protect the environment and public health." In August of 1992, Andrews met with Mike and Amy Knowlton, alleged environmental offenders, and State Representative Paul Jacques. Representative Jacques was then the co-Chair of the Legislature's Joint Energy and Natural Resources Committee, the committee with oversight over the DEP. Representative Jacques complained about Andrews's conduct during this meeting with the Knowltons to Andrews's DEP supervisors. The DEP disciplined Andrews in the form of an oral reprimand. ³

¶7 In the June 25, 1993 edition of the Maine Times, an article entitled "When the system fails: How do you protect small business from the bureaucracy? " appeared. Andrews's August 1992 meeting with the Knowltons was a subject of this article. The article began: "[a]fter Mike and Amy Knowlton had a run-in with a Department of Environmental Protection official, the Legislature pushed through new laws to solve what the department claims was a personnel problem. Legislators saw the issue as calling a halt to bureaucratic arrogance." A related article, "Making costly change: Mike and Amy Knowlton were seen as victims of a regulatory system run amok," stated in part:

when Mike and Amy Knowlton, who own a gas station and convenience store in the tiny town of Freedom, ran into trouble with the Department of Environmental Protection (DEP), they went to an important legislator, who in turn ran into a particular regulator's rude behavior.

....

'I told them to look at the data,' says Alan Prysunka, who is responsible for the oil and hazardous materials cleanup program at the DEP. 'My field staff deal with 300 to 400 cases a year. I have one staff person who acted improperly. But are you going to change an entire program because of a personnel problem?'

'Yes,' responds Rep. Paul Jacques (D-Waterville), an eight-term lawmaker and House chairman of the energy committee. Jacques says it isn't just because he is a friend of the Knowltons. The reason is because Prysunka's errant staffer is really part of a pervasive 'attitude' problem at DEP that lawmakers feel helpless to change.

¶8 In response to these articles, Andrews wrote a letter to the Maine Times that was published in the July 9, 1993 edition. His letter stated in part:

Randy Wilson's article, 'When the System Fails' (MT, 6/25/93), regarding a gasoline station/oil terminal owner and his experiences with the Department of Environmental Protection (DEP), made light of several issues that are important to a thorough understanding of that situation.

I hope that most readers were able to determine from the article that Mr. Knowlton, an experienced oil industry professional, is a repeat environmental offender. His violations are very directly related to the petroleum contamination that currently underlies a position of the village of Freedom.... Knowlton's dissatisfaction with the DEP stems from a determination by DEP staff, acting in accordance with State law, that Knowlton, Inc., had failed to meet certain minimum operation standards that were specifically...