Carrillo v. Rostro, No. 19650

• Docket Nº: No. 19650
• Citation: 114 N.M. 607, 845 P.2d 130, 1992 NMSC 54
• Case Date: August 28, 1992

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845 P.2d 130 114 N.M. 607, 80 Ed. Law Rep. 1009 Rose Mary CARRILLO, Plaintiff-Appellee,
v.
David ROSTRO, Evelyn Jones, Eraldo Lucero and Louis Marquez,
members and former members of the Board of Education of the
Bernalillo Public Schools, in their individual capacities,
Defendants-Appellants. No. 19650. Supreme Court of New Mexico. Aug. 28, 1992.

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[114 N.M. 609] Simons, Cuddy & Friedman, C. Emery Cuddy, Jr., Charles D. Noland, Santa Fe, for appellants.

Levin & Vance, Claud Eugene Vance, Albuquerque, for appellee.

OPINION

MONTGOMERY, Justice.

In this case we address two important questions of first impression in New Mexico, one substantive, the other procedural. The substantive question is whether the defendant school board members, who refused to renew the plaintiff school principal's contract because of her criticism of the Board at a public meeting, may invoke the defense of qualified immunity to plaintiff's civil rights claims. Plaintiff sued under 42 U.S.C. Sec. 1983 (1988) for defendants' alleged violation of her First and Fourteenth Amendment right to speak at a public meeting.¹

The procedural question, which we must resolve first because it relates to our jurisdiction to hear this appeal, is whether the trial court's denial of summary judgment on defendants' qualified immunity defense

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[114 N.M. 610] is reviewable, before trial, under the collateral order doctrine adopted by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). More broadly, the procedural question is whether we should adopt the Cohen collateral order rule in New Mexico and, if so, how that rule should be implemented.

As indicated, the trial court denied the defendants' motion for summary judgment, ruling against them on their claim that they were entitled to qualified immunity on plaintiff's Section 1983 claims. We hold that this pretrial order is reviewable, adopt the collateral order doctrine in New Mexico, and outline how that doctrine is to be invoked in a case in which it may be properly raised. On the merits, we affirm the district court's denial of summary judgment, holding, on facts taken as true for purposes of summary judgment, that qualified immunity was not available to the defendants because their action violated plaintiff's First Amendment right to address the Board in a public meeting concerning a matter of public concern.

I. FACTS AND ISSUES

On March 19, 1987, the Board of Education of the Public School District in Bernalillo, New Mexico, held a public meeting to consider whether to make up three school days that had been missed at Carroll Elementary School because of a broken water pipe. Plaintiff Rose Mary Carrillo, who was then the principal of Carroll Elementary, was present at the meeting, as were defendants David Rostro, Evelyn Jones, and Eraldo Lucero, each of whom was a member of the Bernalillo Board of Education. The meeting was also attended by a number of other persons, including parents and staff members from Carroll Elementary.

During the meeting, the Board expressed a desire that the superintendent of the school district request a waiver from the State Department of Education so that the school days would not have to be made up. In response, plaintiff voiced her opposition to the Board's position. The parties disagree as to plaintiff's demeanor and the tone of her speech to the Board. According to defendants, plaintiff criticized the Board's position and questioned its commitment to quality education. They characterize her behavior as abrasive, harassing, inappropriate, and unprofessional. Plaintiff, on the other hand, denies that she criticized the Board; rather, she contends, she "spoke forcefully but professionally" and "presented a strong but composed public statement" of her belief that the school days should be made up.

In April of the following year, 1988, defendants voted not to renew plaintiff's contract as principal of Carroll Elementary School. Rostro, Jones, and Lucero admitted that they based their decision in part on plaintiff's behavior at the March 1987 meeting. They considered her conduct at the meeting as one of several indicators that she was unsuitable for continued employment as an administrator in the Bernalillo public schools. They offered her employment as an elementary school teacher, which she initially accepted but later resigned.

In mid-1988, plaintiff filed suit against defendants in their official capacities as members of the Bernalillo Board of Education, seeking relief for, among other things, violation of her civil rights under Sec. 1983. After the United States Supreme Court's decision in Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), made it clear that the Board and its members in their official capacities were not subject to suit for money damages under Sec. 1983, plaintiff amended her complaint to seek damages under that section against the defendants in their individual capacities.² In her amended complaint, insofar as relevant

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[114 N.M. 611] to this appeal, plaintiff alleged that defendants' decision not to renew her contract as principal was made in retaliation for her comments at the March 1987 meeting and therefore violated her First Amendment right to free speech and deprived her of her interest in continued employment without due process of law.

In their answer to plaintiff's amended complaint, defendants raised the defense of qualified immunity to plaintiff's claims against them in their individual capacities. Soon thereafter, defendants filed a motion for summary judgment as to all of plaintiff's claims. With respect to her Section 1983 claims, defendants asserted that they were entitled to qualified immunity from suit, based on the rule in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), and on its elaboration in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), that government officials performing discretionary functions are immune from liability and from suit for conduct that does not violate clearly established law. Defendants argued that their decision not to renew plaintiff's contract did not violate any clearly established law with respect to any of plaintiff's asserted rights.

Plaintiff responded to defendants' motion, arguing that genuine issues of material fact existed and thus precluded summary judgment. In particular, on the free speech claim, plaintiff identified the following disputed issues of fact: whether her demeanor and the tone of her speech at the March 1987 meeting were professional or unprofessional, whether her conduct at the meeting was a motivating factor in the Board's decision, and whether the additional reasons given by defendants to support their decision were pretextual. On the procedural due process claim, plaintiff maintained that the facts were in dispute over whether she had an implied contract of employment that would give rise to procedural due process rights surrounding any decision not to rehire her as principal.

The trial court heard oral arguments and on January 3, 1991, entered an order denying defendants' motion. With respect to their request for qualified immunity, the court reasoned that questions of fact as to what occurred at the March 1987 meeting precluded summary judgment on the free speech claim and that "the question of law ... on the contract issue is not clear-cut and we'll go to the jury on that issue also." In its order, the court denied defendants' request that it certify the qualified immunity issue for immediate review under this state's statute providing for interlocutory appeals.³

Despite the trial court's refusal to certify its order for immediate review, defendants filed a notice of appeal, asserting an immediate right of appeal from the district court's denial of their motion for summary judgment raising the defense of qualified immunity. Defendants based this assertion on Mitchell v. Forsyth, in which the Supreme Court held that a denial of qualified immunity on a Section 1983 claim is final and appealable under the collateral order doctrine. 472 U.S. at 530, 105 S.Ct. at 2817. Defendants now make two arguments on appeal: First, that New Mexico should recognize a pretrial right of appeal from a district court's denial of a public official's motion for summary judgment seeking qualified immunity from a Section 1983 claim; second, that the trial court erred in refusing to grant them qualified immunity. Defendants enlarge on their second argument by claiming that, in April 1988 when they refused to rehire plaintiff, she did not have a clearly established right to continuation of her employment even though it was terminated (a) because of her speech at the March 1987 meeting and (b) without according her any procedural due process.

Before turning to these arguments, we pause to note that plaintiff has

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[114 N.M. 612] essentially abandoned her due-process claim on this appeal. At oral argument, her counsel in effect conceded that the law in April 1988 did not clearly establish that plaintiff had a right to continued employment that could only be terminated by affording her certain minimal due-process protections. In initially arguing that she had such a right, plaintiff relied in large part on Kestenbaum v. Pennzoil Co., 108 N.M. 20, 766 P.2d 280 (1988), cert. denied, 490 U.S. 1109, 109 S.Ct. 3163, 104 L.Ed.2d 1026 (1989), which most assuredly is one of the leading cases in New Mexico establishing that an implied employment contract may be found from the "totality of the parties' relationship," including the employer's past conduct and dealings with employees. Id. at 26, 766 P.2d at 286. However, Kestenbaum was not decided until seven months after April 1988, and in any event involved the conduct of a private employer, not a governmental entity. Contracts...