Holliday v. Regional Transp. Dist.

• Decision Date: 27 September 2001
• Docket Number: No. 00CA1778.,00CA1778.
• Citation: 43 P.3d 676
• Parties: Gloria HOLLIDAY, individually and as a member of the board of directors of the Regional Transportation District; and Jack McCroskey, individually and as a member of the board of directors of the Regional Transportation District, Plaintiffs-Appellants, v. REGIONAL TRANSPORTATION DISTRICT; Robert L. Tonsing, individually and as chairman of the board of directors of the Regional Transportation District; and Brenda Bergman, individually and as executive assistant to the board of directors of the Regional Transportation District, Defendants-Appellees.
• Court: Colorado Court of Appeals

43 P.3d 676

Gloria HOLLIDAY, individually and as a member of the board of directors of the Regional Transportation District; and Jack McCroskey, individually and as a member of the board of directors of the Regional Transportation District, Plaintiffs-Appellants, v. REGIONAL TRANSPORTATION DISTRICT; Robert L. Tonsing, individually and as chairman of the board of directors of the Regional Transportation District; and Brenda Bergman, individually and as executive assistant to the board of directors of the Regional Transportation District, Defendants-Appellees.

No. 00CA1778.

Colorado Court of Appeals, Div. V.

September 27, 2001.

Certiorari Denied April 15, 2002.¹

Ben Klein, Denver, CO, for Plaintiffs-Appellants.

Maria L. Lien, Associate Counsel, Regional Transportation District, Denver, CO, for Defendants-Appellees.

Opinion by Judge CASEBOLT.

In this action under 42 U.S.C. § 1983 asserting violations of the First Amendment, plaintiffs, Gloria Holliday and Jack McCroskey, appeal the judgment dismissing their claims against defendants, Robert L. Tonsing, Brenda Bergman, and the Regional Transportation District (RTD). We reverse and remand for further proceedings.

Except as indicated, the following facts are either undisputed or are taken from plaintiffs' uncontroverted affidavits.

RTD is a political subdivision of the state that is authorized to develop, maintain, and operate a mass transportation system. Holliday is a current member of the RTD board of directors, and until January 1, 2001, McCroskey was also a board member. Tonsing served as the chair of the board of directors until January 2000, and Bergman is the board executive assistant responsible for the supervision of RTD administrative staff.

Members of the board, also known as district directors, are elected by geographic district. District directors maintain offices at RTD headquarters in Denver and have access to RTD administrative resources, including secretarial staff.

Among the functions traditionally carried out by RTD administrative staff is the typing and mailing of letters written by board members. Before the events giving rise to this case, district directors typically used RTD administrative staff to send letters communicating with other government officials and their constituents on RTD policy matters. The content of these communications typically included praise or criticism of RTD policy, staff, officers, and directors. This correspondence was not traditionally subject to review for content.

Acting in the wake of a particular instance in which administrative staff were used to communicate criticisms of RTD staff and former directors to the news media, Tonsing issued a memo to all district directors concerning the use of RTD resources. Tonsing's memo stated a new policy:

RTD board resources, including staff assistance and materials, are available in support of directors' activities that clearly have to do with carrying out the agency's responsibilities under state law, and RTD by-laws and directives. Accordingly, I have directed the board staff not to provide such support when any reasonable person would conclude that other agendas (some of which might in fact hinder the RTD mission) are at work.

The memo stated that Tonsing himself would make the determination regarding the use of staff in "borderline" cases.

After the resource policy was announced, plaintiffs continued to draft and submit their correspondence for typing by RTD administrative staff. On at least sixteen occasions, either Tonsing or Bergman returned plaintiffs' correspondence to them untyped. The draft correspondence for which plaintiffs were not given RTD staff assistance included letters to state officials and at least one letter to the editor of a local newspaper. Almost all of the letters as drafted showed copies going to members of local Denver media outlets.

The subjects of the untyped letters varied but all related to RTD matters. The letters included criticism of RTD policies with regard to light rail; allegations of conflict of interest against district directors; allegations of waste, mismanagement, electioneering, and cronyism against RTD officers; calls for termination of officers; and discussion of the issues surrounding an RTD bond ballot measure.

When returning the untyped draft correspondence, Bergman and Tonsing often included a note indicating the reason for the rejection of the correspondence. The reasons noted for rejection included that the correspondence contained personal attacks, name calling, unfounded accusations, slander, unsubstantiated claims, and statements that were contrary to RTD policy.

All of plaintiffs' letters rejected by Tonsing and Bergman were ultimately distributed by other means. Several of the letters, and the application of the resource policy itself, became the subject of local newspaper stories.

In the wake of the institution of the resource policy, plaintiffs alleged that other directors' correspondence was not rejected or scrutinized. In a memo to the board, Tonsing denied that other directors' correspondence was not scrutinized and insisted that only plaintiffs, and specifically plaintiff McCroskey, had submitted correspondence that violated the terms of the resource policy.

Plaintiffs communicated their objections concerning the policy to both Tonsing and Bergman. According to plaintiffs' affidavits, both Tonsing and Bergman stated in response that they would not allow dissemination of correspondence that was unfavorable to RTD, and that the purpose of the policy was to ensure that plaintiffs could not disseminate their criticisms, but could only communicate information that was favorable to RTD. Tonsing also stated that he would do anything within his power to prevent plaintiffs from communicating information to their constituents that was contrary to RTD board policy.

Plaintiffs then initiated this proceeding, alleging violations of their First Amendment rights and their rights under article II, § 10 of the Colorado Constitution. Tonsing and RTD filed a motion for summary judgment, claiming that the policy did not constitute an infringement of plaintiffs' rights. Defendants Bergman and RTD separately filed a motion to dismiss on the basis that Bergman was not in a policymaking position and only acted on Tonsing's instructions.

The trial court granted both motions and ruled that the remaining motions, including a motion to add a defendant, were moot. Plaintiffs appeal the resulting judgment of dismissal.

I.

Plaintiffs contend that the trial court erred in granting summary judgment on their claims. They assert that, drawing all inferences from the undisputed facts in their favor, there is sufficient evidence to warrant a trial on their claim that defendants violated their First Amendment rights and that, in any event, material issues of fact remain that preclude summary judgment. We agree in part.

We review a summary judgment de novo. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., 901 P.2d 1251 (Colo.1995)

.

De novo review is also appropriate when the issues raised touch on First Amendment concerns. In such cases, an appellate court must make an independent review of the whole record to ensure that the judgment rendered does not intrude on the right of free speech. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Mesa v. White, 197 F.3d 1041 (10th Cir.1999); Lewis v. Colo. Rockies Baseball Club, 941 P.2d 266 (Colo.1997).

Summary judgment is appropriate only if the pleadings and supporting documents demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The burden is on the moving party to establish that no genuine issue of fact exists, and any doubts in this regard must be resolved against that party. The nonmoving party is entitled to the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts. Aspen Wilderness Workshop, Inc. v. Colo. Water Conservation Bd., supra.

We note initially that article II, § 10 of the Colorado Constitution provides greater protection for freedom of speech than does the First Amendment. Lewis v. Colo. Rockies Baseball Club, supra.

Nevertheless, neither party argues that a conceptual framework different from First Amendment analysis governs this case when analyzed with respect to the Colorado Constitution. Instead, the parties have analyzed this case in the context of the protections accorded by the First Amendment. The supreme court has previously found it unnecessary to consider the more expansive protections of the Colorado Constitution where federal jurisprudence has established a framework for considering the restriction of speech on public property, see Lewis v. Colo. Rockies Baseball Club, supra, and we conclude likewise here. Accordingly, our analysis proceeds solely under the First Amendment.

Under federal constitutional jurisprudence, we follow a three-step approach to determine whether the policy at issue constitutes an impermissible intrusion upon First Amendment protections. First, we consider whether the claim involves protected speech and whether the government is involved in its abridgment. See Lewis v. Colo. Rockies Baseball Club, supra.

Second, if the speech is subject to protection, we must determine the nature of the forum involved, because the extent to which the government may limit access depends on whether the forum is public or nonpublic. Because a principal purpose of a traditional public forum is the free exchange of ideas, speakers may be excluded from a public forum only if the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the government has intentionally designated a place or means of communication as a public forum, speakers cannot be excluded without a compelling governmental interest....