Foote v. Town of Bedford

• Decision Date: 21 April 2011
• Docket Number: No. 10–2094.,10–2094.
• Citation: 32 IER Cases 289,642 F.3d 80
• Parties: William FOOTE, Plaintiff, Appellant,v.TOWN OF BEDFORD et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

642 F.3d 80

94 Empl. Prac. Dec. P 44,171

32 IER Cases 289

William FOOTE, Plaintiff, Appellant,

v.TOWN OF BEDFORD et al., Defendants, Appellees.

No. 10–2094.

United States Court of Appeals, First Circuit.

Heard March 9, 2011.Decided April 21, 2011.

Mark A. Stull, for appellant.Charles P. Bauer, with whom Beth A. Deragon and Gallagher, Callahan & Gartrell, P.C. were on brief, for appellee Town of Bedford.Brian J.S. Cullen, with whom CullenCollimore PLLC was on brief, for individual appellees.Before BOUDIN, Circuit Judge, SOUTER,^* Associate Justice, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

A town council refused to reappoint the plaintiff to an unpaid advisory commission after he publicly criticized certain of the council's policies. The plaintiff sued, but the district court jettisoned his case at the summary judgment stage. Foote v. Town of Bedford, No. 1:09–cv–171, 2010 WL 3238315 (D.N.H. Aug. 13, 2010). The plaintiff's appeal presents a nuanced First Amendment question about the relationship between policymakers and policy-related speech in the public sector. After careful consideration, we conclude that the refused reappointment, though premised on a lawful exercise of the plaintiff's right to free speech, did not transgress the First Amendment. Consequently, we affirm the judgment below.

I. BACKGROUND

We draw the facts from the summary judgment record and rehearse them in the light most favorable to the nonmovant (here, the plaintiff). Galloza v. Foy, 389 F.3d 26, 28 (1st Cir.2004).

The organic governing document of Bedford, New Hampshire (the Town), is the town charter, which vests primary responsibility for the administration of municipal affairs in a seven-member town council (the Council). The charter imbues the Council with authority to appoint the members of municipal boards and commissions, including the Bedford Recreation Commission (the Commission). The Commission's bailiwick is to propound recommendations to the Council and the Town Manager about “the acquisition, holding, and disposition” of recreational facilities, the staffing of those facilities, and the “rules and regulations” for their operation. Bedford, N.H., Charter art. 1–11–1(c)(2).

The Commission holds regular meetings that are open to the public. It is composed of five members, all of whom serve without compensation. They are appointed by the Council, typically for staggered three-year terms (although some appointments are for shorter periods, say, if a commissioner dies or resigns mid-term).

On May 11, 2005, the Council appointed plaintiff-appellant William Foote to fill a vacancy in the Commission's ranks. Upon completing the unexpired portion of that term, he was reappointed for three years. For aught that appears, his service was exemplary.

In January of 2009, the plaintiff received a letter reminding him that his term would expire in March and inquiring about whether he wished to continue. The letter made pellucid that reappointment would be in the Council's sole discretion. The plaintiff replied that he would be pleased to return to the Commission.

On March 6, the plaintiff attended a meeting of a committee formed to assist in developing a community park project denominated as Bedford Village Common (BVC). At the meeting, he voiced opposition to the Council's plan to revise certain aspects of the proposed project and (over the Council's objections) advocated the use of impact fees as a funding mechanism to assure financial viability. In a particularly pointed exchange, he accused the Council of “trying to kill the project with a thousand paper cuts.”

A municipal election took place on March 10. The plaintiff lost a bid for a seat on the school board. In defeat, he warned that he would be watching how the school board handled its budget.

With the election in his rear-view mirror, the plaintiff continued to press his candidacy for reappointment to the Commission. To that end, he met with members of the newly constituted Council. At a meeting held on March 16, the Council, voting four to three, proposed filling the two vacancies on the Commission with other aspirants. In a later vote, the Council named those aspirants to the Commission.

Asserting that his vocal criticism in connection with the BVC project led to this rebuff, the plaintiff sued the Town and four councillors who had voted to deny him reappointment (William Dermody, Michael Izbicki, Paul F. Roy, Sr., and Robert Young). He brought his suit in a New Hampshire state court, alleging a First Amendment claim under 42 U.S.C. § 1983 and three supplemental state-law claims. The defendants removed the case to federal district court, see 28 U.S.C. §§ 1331, 1441(b), 1446, and in due season sought summary judgment, see Fed.R.Civ.P. 56. The plaintiff opposed summary judgment.

The district court entered summary judgment on the section 1983 claim and remanded the remaining claims to state court. Foote, 2010 WL 3238315, at *4–5. It reasoned that the defendants' “strong interest” in appointing like-minded people to the Commission outweighed the plaintiff's First Amendment rights. Id. at *4. This timely appeal followed.

II. DISCUSSION

We divide our substantive discussion into four segments.

A. Standard of Review.

We review the entry of summary judgment de novo. Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir.1999). In performing this tamisage, we scrutinize the facts in the light most agreeable to the nonmovant, ceding all reasonable inferences therefrom in his favor. Cox v. Hainey, 391 F.3d 25, 29 (1st Cir.2004). Summary judgment is appropriate only if the record, viewed in the required light, reveals no genuine issue of material fact and demonstrates that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. Withal, we are not married to the trial court's rationale but may uphold its ruling on any ground made manifest by the record. Houlton Citizens' Coal., 175 F.3d at 184; Garside v. Osco Drug, Inc., 895 F.2d 46, 48–49 (1st Cir.1990).

B. The Decisional Framework.

The plaintiff's case stands or falls on his claim that the individual defendants impermissibly refused to reappoint him to the Commission because of his public opposition to, and criticism of, certain municipal policies. For summary judgment purposes, the district court assumed that this reason underpinned his failed bid for reappointment, and so do we. This assumption is important because “the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.” ¹ Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). As this case illustrates, that right is not absolute.

When speech by a public employee is involved, courts typically choreograph a three-step chaconne. The first step is to determine whether the employee spoke as a citizen on a matter of public concern. Id. at 415–16, 126 S.Ct. 1951. The second step is to balance the employee's First Amendment interests against the interests of the government, as an employer, in providing effective and efficient services. Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). At the third and final step, the employee must “show that the protected expression was a substantial or motivating factor in the adverse employment decision.” Curran v. Cousins, 509 F.3d 36, 45 (1st Cir.2007).

For present purposes, the defendants do not dispute that the plaintiff spoke out as a citizen and that his public commentary related to matters of community concern. Thus, his speech triggers First Amendment analysis. See Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The third step here is a foregone conclusion; we already have noted our assumption that the commentary was a substantial cause of the Council's refusal to reappoint the plaintiff to a new term on the Commission. It necessarily follows that this appeal hinges on the second step in the chaconne: the “balance between the interests of the [plaintiff], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

The Pickering balancing test is heavily dependent on context, and the Supreme Court has established a corollary to this test with respect to policymaking employees. The seminal case is Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), in which the Court held that a government employer cannot discharge an employee merely because he is not affiliated with a particular political party. Id. at 373, 96 S.Ct. 2673 (plurality op.). But the Court noted an exception: a government employer can terminate a policymaking employee based on party affiliation. Id. at 367, 96 S.Ct. 2673. “This exception helps to ensure that elected representatives will not be hamstrung in endeavoring to carry out the voters' mandate.” Galloza, 389 F.3d at 28.

The Court later broadened the exception to include any employee for whom “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Thus, when a government employer takes an adverse employment action against such a policymaking employee based on the latter's political affiliation, it has “demonstrate[d] a compelling interest in infringing First Amendment rights.” Rutan v. Repub. Party of Ill., 497 U.S. 62, 71 n. 5, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990).

The Supreme Court has not squarely addressed the question of whether, or how, the Elrod /Branti exception applies to a policymaking employee's First Amendment claim premised on speech rather than political affiliation. Nevertheless, a number of courts of appeals have concluded that...