Brammer-Hoelter v. Twin Peaks Charter Academy

• Decision Date: 21 April 2010
• Docket Number: No. 08-1325.,08-1325.
• Citation: 602 F.3d 1175
• Parties: Jody BRAMMER-HOELTER; Laura Kilduff; Melissa Perry; Amy Sulzbach; Shelley Crews; Bonnie Gould, Plaintiffs-Appellants, v. TWIN PEAKS CHARTER ACADEMY; Dorothy Marlatt; St. Vrain Valley School District No. Re-1J, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

602 F.3d 1175

Jody BRAMMER-HOELTER; Laura Kilduff; Melissa Perry; Amy Sulzbach; Shelley Crews; Bonnie Gould, Plaintiffs-Appellants, v. TWIN PEAKS CHARTER ACADEMY; Dorothy Marlatt; St. Vrain Valley School District No. Re-1J, Defendants-Appellees.

No. 08-1325.

United States Court of Appeals, Tenth Circuit.

April 21, 2010.

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John R. Olsen of Olsen & Brown, LLC, Niwot, CO, for Plaintiffs-Appellants.

M. Brent Case (Patrick B. Mooney and Holly Ortiz with him on the briefs) of Semple, Miller, Mooney & Farrington, P.C., Denver, CO, for Defendants-Appellees.

Before GORSUCH, McKAY, and HOLMES, Circuit Judges.

McKAY, Circuit Judge.

Plaintiffs appeal the district court's grant of summary judgment to Defendants on remand from our decision in Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir.2007). In the previous appeal, we affirmed the district court's entry of judgment for Defendants on most of Plaintiffs' claims but remanded for further proceedings on their three First Amendment claims—(1) that they were subjected to an illegal prior restraint on speech and association; (2) that they were retaliated against for exercising their freedom of speech rights; and (3) that they were retaliated against for exercising their freedom of association rights. We stated that Defendants were free on remand "to assert those defenses not addressed by the district court in its opinion and order as well as any additional defenses that may exist." Id. at 1212. On remand, the district court granted summary judgment to Defendants on all claims based on qualified immunity and principles of municipal liability. Plaintiffs appealed.

BACKGROUND

From the fall of 1997 until the spring of 1999, Plaintiffs were employed as teachers at Twin Peaks Charter Academy, a charter school within the St. Vrain Valley School District in Colorado. As more thoroughly detailed in our opinion in the first appeal and described as relevant below, Plaintiffs alleged that Defendants—the Academy, the school district, and the former administrator of the Academy, Dr. Dorothy Marlatt—violated Plaintiffs' First Amendment rights while they were employed at the Academy by unlawfully prohibiting them from meeting together to discuss school matters and retaliating against them when they did so.

It is undisputed that the Academy requested its employees, including Plaintiffs, to sign a "code of conduct" in which they promised to "refrain from actions or behavior harmful/hurtful to others at this school, including malicious gossip and similar activities." (Appellants' App. at 1473.) Taken in the light most favorable to Plaintiffs, the record also supports the conclusion that Dr. Marlatt verbally directed teachers not discuss school matters with anyone and expressed her preference they not meet together socially at all.¹ The record further supports the conclusion that Plaintiffs continued meeting and discussing school matters and Dr. Marlatt retaliated by giving them poor performance evaluations and imposing increasingly strict restrictions on their speech and association.

In the spring of 1999, Plaintiffs each submitted letters of resignation to the Academy. During their two-week-notice period, Dr. Marlatt resigned. Plaintiffs then attempted to rescind their resignations, but the Academy Board of Directors voted against permitting them to do so. All but one Plaintiff also reapplied for a teaching position with the Academy, but none of them received a response.

Plaintiffs then filed a complaint in the federal district court raising eleven claims for relief, including due process, First Amendment, and state law claims. The district court granted in part Defendants' motion to dismiss certain of Plaintiffs' claims, including their claim based on the Colorado Constitution, and Plaintiffs filed an amended complaint that omitted the dismissed claims. The district court subsequently granted Defendants' motion for summary judgment on all claims.

On appeal, we affirmed the grant of summary judgment on Plaintiffs' due process, contract, and estoppel claims, holding Plaintiffs were at-will employees and Defendants did not violate their rights by declining to accept their attempts to rescind their resignations. Brammer-Hoelter, 492 F.3d at 1209-11. As for Plaintiffs' First Amendment allegations, we concluded Plaintiffs had asserted three distinct First Amendment claims, and we held the district court erred in failing to discuss Plaintiffs' free association retaliation claim and prior restraint claims. Id. at 1208-09. We also held the summary judgment record supported the conclusion that Plaintiffs discussed four matters of public concern: "(1) whether the Academy's code of conduct could restrict Plaintiffs' freedom of speech, (2) Dr. Marlatt's restrictions on speech and association, (3) whether the Academy charter would be renewed, and (4) the upcoming Board elections." Id. at 1206. We concluded the summary judgment record was sufficient to support a finding of retaliation for Plaintiffs' speech and association based on these four protected areas of speech, and we therefore reversed in part the district court's grant of summary judgment to Defendants on these claims. Id. at 1208-09. We also remanded the prior restraint claim for further proceedings. Id. at 1209. We specifically held Defendants were free on remand "to assert those defenses not addressed by the district court in its opinion and order as well as any additional defenses that may exist." Id. at 1212.

On remand, Dr. Marlatt asserted she was entitled to qualified immunity on Plaintiffs' three surviving claims, and the Academy and school district asserted there was no basis under 42 U.S.C. § 1983 for holding them liable as municipal entities. The district court agreed and again granted summary judgment for all Defendants on all claims. This appeal followed.

DISCUSSION

As an initial matter, we must consider whether Plaintiffs have standing to assert the claims before us in this appeal. Although this question was not raised by the parties nor addressed by the district court, we raise this issue sua sponte, as we must, "to ensure that there is an Article III case or controversy" with respect to each claim before us. People for the Ethical Treatment of Animals v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir. 2002). "To establish Article III standing, the plaintiff must show injury in fact, a causal relationship between the injury and the defendants' challenged acts, and a likelihood that a favorable decision will redress the injury." Id. The first component of this test, the requirement of an "injury in fact," requires "an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, citations, and footnote omitted).

Plaintiffs have three claims that survived the first appeal and are still at issue in this appeal: (1) prior restraints on speech and association; (2) free speech retaliation; and (3) free association retaliation.² We are satisfied that Plaintiffs have standing as to both of their retaliation claims. The prior restraint claim, however, requires some discussion. Specifically, we must consider whether Plaintiffs have shown the existence of an "injury in fact." Although their arguments were not framed in terms of standing, both parties' appellate briefs addressed the question of whether Plaintiffs' speech and association were chilled by the alleged prior restraints. We therefore find it appropriate to review this issue under our usual standard for determining standing at the summary judgment phase, as opposed to the pleading phase. Cf. Bischoff v. Osceola County, 222 F.3d 874, 882 n. 8 (11th Cir. 2000) (applying the usual summary judgment standard for standing, even though the district court had raised this issue sua sponte, because the plaintiffs briefed this issue and the case "had moved well beyond the preliminary stages"). Under this standard, "mere allegations of injury are insufficient," and we look instead to whether the summary judgment record supports a conclusion that the plaintiffs have standing. Dep't of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). Therefore, Defendants should prevail on standing grounds if "the record is devoid of evidence raising a genuine issue of material fact that would support the plaintiff's ultimate burden of proving standing." Day v. Bond, 500 F.3d 1127, 1132 (10th Cir.2007).

A prior restraint claim is distinct from a retaliation claim because it is based on a restriction that "`chills potential speech before it happens,'" rather than "`an adverse action taken in response to actual speech.'" Brammer-Hoelter, 492 F.3d at 1209 (quoting Arndt v. Koby, 309 F.3d 1247, 1251 (10th Cir.2002)). While a plaintiff cannot satisfy the injury-in-fact requirement for a prior restraint claim through the mere allegation that the restraint has a subjective chilling effect on his speech or association, "a chilling effect on the exercise of a plaintiff's First Amendment rights may amount to a judicially cognizable injury in fact, as long as it `arises from an objectively justified fear of real consequences.'" Initiative & Referendum Institute v. Walker, 450 F.3d 1082, 1088 (10th Cir.2006) (quoting D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.2004)).³ Thus, for example, a plaintiff who challenges a statute on First Amendment grounds may satisfy the injury-in-fact requirement "by showing a credible threat of prosecution or other consequences following from the statute's enforcement." D.L.S., 374 F.3d at 975.

Plaintiffs allege their exercise of their First Amendment rights was chilled by two unconstitutional prior restraints—Dr. Marlatt's...