Boquist v. Courtney
| Decision Date | 21 April 2022 |
| Docket Number | 20-35080 |
| Parties | Brian J. Boquist, Plaintiff-Appellant, v. Peter Courtney, Oregon State Senate President, in his official capacity; Floyd Prozanski, Senator, in his official capacity as Chairman of the Senate Special Committee on Conduct; James Manning, Senator, in his official capacity as member of the Special Senate Conduct Committee; Dexter Johnson, in his official capacity as Legislative Counsel; Jessica Knieling, in her official capacity as interim Human Resources Director; Brenda Kay Baumgart, in her official capacity as contract investigators to the Oregon State Senate; Daron Hill, in his official Legislative Administration capacity; Melissa J. Healy, in her official capacity as contract investigators to the Oregon State Senate, and all in their official capacities in the Legislative Branch of the State of Oregon, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Submitted October 6, 2021 [*]
Appeal from the United States District Court for the District of Oregon No. 6:19-cv-01163-MC Michael J. McShane, District Judge, Presiding
Brian J. Boquist, Dallas, Oregon, pro se Plaintiff-Appellant.
Jona J. Maukonen, Assistant Attorney-In-Charge; Benjamin Gutman Solicitor General; Ellen F. Rosenblum, Attorney General Department of Justice, Salem, Oregon; for Defendants-Appellees.
Before: William A. Fletcher, Sandra S. Ikuta, and Daniel A. Bress, Circuit Judges.
The panel reversed the district court's dismissal of a First Amendment retaliation claim in an action brought by Oregon minority party state senator Brian Boquist who alleged that majority party members retaliated against him for engaging in protected speech when, in response to two statements made by Boquist, defendants ordered him not to enter the state capitol without giving them 12 hours advance notice.
After minority party state senators in Oregon walked out of the state senate to prevent a quorum, members of the majority party threatened to send the state police to arrest them and return them to the capitol. Boquist made two statements stating he would resist any such attempt to arrest him. The first, made on the floor of the senate, stated in part: "Mr. President, and if you send that state police to get me, Hell's coming to visit you personally." The second, made to a reporter in the state capitol building, stated in part: "This is what I told the superintendent: Send bachelors and come heavily armed.
The panel stated that an elected official raising a First Amendment retaliation claim has the initial burden of pleading and proving that: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. Upon such a showing, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of. The panel additionally explained that the framework that applies to evaluating speech restrictions that the government imposes on its employees is not applicable to evaluating restrictions on the speech of elected officials. Nor does the balancing test set forth in Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564 (1968), apply to an elected official's claim of First Amendment retaliation by the official's elected peers.
Applying the foregoing framework, the panel held that there was no doubt that Boquist's complaint raised a plausible inference that he was engaging in protected speech. In considering defendants' argument that Boquist's statements were not protected because they constituted unprotected fighting words, the panel held, that at the motion to dismiss stage, it could not say that Boquist's statements created a likelihood that the person addressed would make an immediate violent response. Even a statement that appears to threaten violence may not be a true threat if the context indicates that it only expressed political opposition or was emotionally charged rhetoric.
Boquist satisfied the second prong of the prima facie test because his complaint plausibly alleged that the 12-hour notice rule was a materially adverse action. Finally, Boquist's complaint plausibly alleged that his speech played a part, substantial or otherwise, in the retaliation. On remand, defendants were free to raise the affirmative defense that, in instituting the 12-hour notice rule, they were motivated by vital information conveyed by Boquist's speech that raised an objectively legitimate need to implement security measures and that justified the particular measures they chose. But defendants' affirmative defense was not apparent as a matter of law from the face of the complaint and was therefore not grounds for dismissal at the pleading stage.
After minority party state senators in Oregon walked out of the state senate to prevent a quorum, members of the majority party threatened to send the state police to arrest them and return them to the capitol. One minority party senator, Brian J. Boquist, made two statements (one on the floor of the senate, and the other to a reporter in the state capitol building) stating he would resist any such attempt to arrest him. In response, majority party members ordered him not to enter the state capitol without giving them 12 hours advance notice. Boquist brought this action against three defendants (state senators Peter Courtney, Floyd Prozanski, and James Manning), on the ground that the order impermissibly retaliated against him for engaging in speech protected by the First Amendment.
We conclude that the district court erred in dismissing Boquist's First Amendment retaliation claim for failure to state a claim because Boquist adequately alleged that he engaged in constitutionally protected speech and was subject to a retaliatory adverse action on account of that speech. The senate majority members, however, will have an opportunity to raise affirmative defenses, including that their actions were motivated by legitimate security concerns.[1]
I
We recite the facts alleged in Boquist's first amended complaint, which we assume to be true at the pleading stage. See Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). We also rely on the facts in various documents that are attached to, and referenced in, Boquist's complaint.[2]See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) ().
On May 7, 2019, twelve minority party members of the Oregon State Senate, including Boquist, walked out of the Senate chamber to prevent the Senate from having a quorum. The walk-out was a protest against Senate President Peter Courtney and Senate Majority Leader Ginny Burdick, among others, for their role in approving a sexual harassment settlement and denying public records requests. The twelve senators who walked out remained absent until May 12, 2019. During that time period, Courtney and other majority senators stated that the senators who walked out to prevent the Senate from having a quorum could be fined, arrested, physically detained, and imprisoned.
On June 19, 2019, the Senate held debate on legislation that would limit the use of electronic signature gathering for ballot initiatives and referendums. Boquist spoke on the floor of the Senate to oppose that legislation. During his speech, Boquist said to Courtney: After Courtney reminded Boquist of "decorum," Boquist stated Later that afternoon, Boquist talked with reporters. After explaining that his comments on the floor were in response to the Governor's threats to use the Oregon State Police to arrest senators who walked out, Boquist told the reporter, This is what I told the superintendent: Send bachelors and come heavily armed.
The next day, on June 20, 2019, a group of state minority party senators, including Boquist, again walked out of the State Capitol to prevent the Senate from having a quorum. The same day, Burdick asked Courtney to impose a fine of $500 per day on the senators who walked out, and Courtney asked the governor of Oregon to direct the Oregon State Police to arrest absent senators. The governor approved Courtney's request on June 20, 2019. However, no senators were ever arrested and, after an agreement was reached between Courtney and Senate Minority Leader Herman Baertschiger, the minority senators returned to the Capitol on June 29, 2019.
The senate majority leadership then decided to address Boquist's statements. On the last day of the legislative session, June 30, 2019, Senator Floyd Prozanski, the chair of the Senate Special Committee on Conduct, paid a call on Boquist in his office at the State Capitol. There, Prozanski told Boquist that the Special Committee on Conduct would meet on July 8th to...
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