Hoover v. Morales

• Decision Date: 31 December 1998
• Docket Number: No. 97-50734,97-50734
• Citation: 164 F.3d 221
• Parties: 131 Ed. Law Rep. 652, 14 IER Cases 1867 Robert HOOVER, Doctor; Texas Faculty Association, Plaintiffs-Appellees, v. Dan MORALES, individually and in his official capacity as Attorney General of the State of Texas; Barry Thompson, Doctor in his official capacity as Chancellor of the Texas A&M University System, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 221

164 F.3d 221

131 Ed. Law Rep. 652, 14 IER Cases 1867

Robert HOOVER, Doctor; Texas Faculty Association Plaintiffs-Appellees, v. Dan MORALES, individually and in his official capacity as Attorney General of the State of Texas; Barry Thompson Doctor in his official capacity as Chancellor of the Texas A&M University System, Defendants-Appellants.

No. 97-50734.

United States Court of Appeals Fifth Circuit.

Dec. 31, 1998.

R. James George, Jr., Renea Hicks, Evan Scott Polikov, George, Donaldson & Ford, Austin, TX, for Plaintiffs-Appellees.

James C. Todd, Asst. Atty. Gen., Austin, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

We sua sponte withdraw our prior opinion, Hoover v. Morales, 146 F.3d 304 (5th Cir.1998), and substitute the following:

I.

FACTS & PROCEDURAL HISTORY

At issue in this case are two Texas state policies, one legislative and one administrative, which have the effect of prohibiting state employees from acting as consultants or expert witnesses on behalf of parties opposing the State in litigation. The first such policy is Texas A&M University System ("TAMUS") policy No. 31.05, which prohibits university professors from taking employment as consultants or expert witnesses when doing so would create a conflict with the interests of the State. The second policy is in the form of an "expert witness rider" attached to the Texas Legislature's 1997 appropriations bill. The rider provides:

Because of an inherent conflict of interest, none of the funds appropriated by this Act shall be expended in payment of salary, benefits, or expenses of any state employee who is retained as or serves as an expert witness or consultant in litigation against the state, unless the state employee serves in that capacity on behalf of a Appropriations Act 1997-99, art. IX, § 2(5); Tex. Sess. Law Serv. at 6352.

state agency on a case in which the state agency is in litigation against another state agency.

Certain professors, who have been retained or have volunteered on a pro bono basis to testify in various litigation against the State, ¹ and the Texas Faculty Association filed suit under § 1983 against the Texas Attorney General and the TAMUS Chancellor, seeking to enjoin enforcement of the "expert witness rider" and TAMUS policy No. 31.05, on the grounds that these policies offend the First Amendment and the Equal Protection clause of the Fourteenth Amendment. The district court granted the plaintiffs' requested preliminary injunction and the State appeals. The State argues that the district court should have abstained from deciding the merits of the constitutional challenge under the Pullman doctrine. Alternatively, the State argues that the district court abused its discretion by granting the preliminary injunction on the merits.

II.

LAW & ANALYSIS

A. Standard of Review

A preliminary injunction is an extraordinary equitable remedy that may be granted only if the plaintiff establishes four elements: (1) a substantial likelihood of success on the merits; (2) a substantial threat that the movant will suffer irreparable injury if the injunction is denied; (3) that the threatened injury outweighs any damage that the injunction might cause the defendant; and (4) that the injunction will not disserve the public interest. These four elements are mixed questions of law and fact. Accordingly, we review the factual findings of the district court only for clear error, but we review its legal conclusions de novo. Likewise, although the ultimate decision whether to grant or deny a preliminary injunction is reviewed only for abuse of discretion, a decision based on erroneous legal principles is reviewed de novo.

Sunbeam Products, Inc. v. West Bend Co., 123 F.3d 246, 250 (5th Cir.1997), citing Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (5th Cir.1989). All the arguments on this appeal concerning the merits of the preliminary injunction focus on the first element--likelihood of success on the merits of the constitutional challenge.

B. Abstention

Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), established that federal courts should not determine the federal constitutional implications of state law when that law has not yet been authoritatively construed by the state courts, and the law could be given a construction by the state courts which would avoid the constitutional dilemma. See Word of Faith World Outreach Center Church, Inc. v. Morales, 986 F.2d 962, 967 (5th Cir.1993). The State argues that there are two such open questions under the "expert witness rider" which are in need of authoritative state court interpretation before a federal court can address its constitutional implications, i.e., whether the rider applies to pro bono expert testimony, and whether the rider applies to expert testimony against political subdivisions of the State, as opposed to the State directly. ²

Abstention is inappropriate in this case, because the constitutional overbreadth problem posed by the expert witness rider cannot

be avoided by any interpretation which its language will bear.

C. Is Speech Still Free If You Get Paid For It?

There is a side-debate in this case about whether testimony by a state employee acting as a paid expert witness is "commercial speech" or just "speech". The difference is critical, as commercial speech is generally less protected. Central Hudson Gas & Elec. Corp. v. Public Service Commission, 447 U.S. 557, 563, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980). In this case, we are dealing with just "speech". If all it takes to make speech commercial is that the speaker is paid to say it, then every writer with a book deal, every radio D.J., and every newspaper and television reporter is engaged in commercial speech. "It is well settled that a speaker's rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak." Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 801, 108 S.Ct. 2667, 2680, 101 L.Ed.2d 669 (1988). Likewise, the fact that one is paid to be an expert witness, does not make his testimony commercial speech. Central Hudson, 447 U.S. at 561, 100 S.Ct. at 2349 (defining commercial speech as "expression related solely to the economic interests of the speaker and its audience")(citing cases). Therefore, the defining element of commercial speech is not that the speaker is paid to speak, but rather that the speech concerns the "economic interests of the speaker and its audience." See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996)(product advertisement), Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995)(solicitation of legal services).

D.

Pickering

& Its Progeny

"The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968).

Thirty years ago in Pickering, the Supreme Court distilled a test for governmental restriction of its employees' speech. The test is essentially in two parts. First, the district court must determine whether the State's action or policy restricts the speech of its employees on matters of public concern. Pickering, supra at 568, 88 S.Ct. 1731; Connick v. Myers, 461 U.S. 138, 145-149, 103 S.Ct. 1684, 1689-1691, 75 L.Ed.2d 708 (1983). If so, then the district court must weigh the interest of the employee in freedom of expression and his audience's legitimate need for access to the information against the government's interest, "as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, supra at 568, 88 S.Ct. 1731; Connick, supra at 142, 103 S.Ct. 1684; Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994); United States v. National Treasury Employees Union, 513 U.S. 454, 465-466, 115 S.Ct. 1003, 1012, 130 L.Ed.2d 964 (1995); Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 2347-48, 135 L.Ed.2d 843 (1996).

i. Matters of Public Concern

TAMUS policy No. 31.05 and the expert witness rider both have the effect of curtailing speech on matters of public concern in this case. For example, some of the parties in this case have been retained as expert witnesses in the State of Texas suit against the tobacco companies. Although the specific testimony to be offered by the faculty-member plaintiffs may be highly esoteric and of little interest to the public, that testimony bears on the addictive nature of cigarettes/nicotine, its health consequences and resulting public costs, which are matters of public concern. Ultimately, a ban on testimony by state employees in litigation against

the State, such as TAMUS Policy No. 31.05, or a refusal to fund the salary and benefits of state employees who testify in litigation against the State, such as the expert witness rider, can be expected to curtail speech on a wide variety of matters of public concern.

ii. The Competing Interests

The plaintiffs' right is generally identified as the right to speak freely on matters of public concern. More specifically, it is the right to serve as (pro bono ) or be retained as (for hire) an expert witness or consultant in litigation against the State (expert witness rider) or when doing so would create a "conflict of interest" with the State (TAMUS policy No. 31.05). Balanced against that, under Pickering, is the State's interest "as an employer, in promoting the efficiency of the public services it...