Koch v. City of Hutchinson, 83-2561

• Decision Date: 27 March 1987
• Docket Number: No. 83-2561,83-2561
• Citation: 814 F.2d 1489
• Parties: Thomas G. KOCH, Plaintiff-Appellant, v. CITY OF HUTCHINSON, et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1489

814 F.2d 1489

55 USLW 2539

Thomas G. KOCH, Plaintiff-Appellant, v. CITY OF HUTCHINSON, et al., Defendant-Appellee.

No. 83-2561.

United States Court of Appeals, Tenth Circuit.

March 27, 1987.

Rehearing Granted April 29, 1987.

Fred W. Phelps, Jr., of Phelps Chartered, Topeka, Kan., for plaintiff-appellant.

Robert L. Howard, M. Kathleen Babcock, Loran J. Lemon of Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., and Phillip H. Alexander, City Atty., Hutchinson, Kan., for defendant-appellee.

Before LOGAN, SETH, Circuit Judges and KANE, District Judge ^*.

KANE, District Judge.

Thomas G. Koch was awarded $100,000 by a jury on his claim that the City of Hutchinson, Kansas abridged his right of free speech as guaranteed by the First Amendment of the United States Constitution. The trial court then granted defendants' motion for judgment notwithstanding the verdict, set aside the verdict and entered judgment in favor of the City of Hutchinson. On appeal Koch raises a number of issues which he asserts requires reversal: (1) Whether the trial court erred in granting defendants' partial summary judgment on Koch's due process claims, finding such claims barred by res judicata; (2) Whether the trial court properly declined to instruct the jury on punitive damages; (3) Whether the trial court erred by directing a verdict against Koch on his conspiracy claim under 42 U.S.C. Sec. 1985; (4) Whether the trial court erred by directing a verdict in favor of the individual City Commissioner--defendants; (5) Whether substantial evidence supports the jury verdict in favor of defendants Pyle and Jones; (6) Whether the trial court erred in granting defendant City of Hutchinson a judgment n.o.v. on the grounds that Koch's written opinion that a fire he investigated was caused by arson is not constitutionally protected; and (7) Whether the trial court erred in denying Koch's motion to reconsider, alter or amend. For the reasons set forth below, the judgments of the trial court are affirmed in part and reversed in part.

PROCEDURAL BACKGROUND

This action arose from events culminating in the demotion of plaintiff from Fire Marshal to Fire Prevention Inspector on July 23, 1979. On September 19, 1979, Koch filed a state court mandamus action, Koch v. Martindell, et al., No. 79 C 403, in the District Court of Reno County, Kansas. A bench trial was held on that case on June 23, 1980. A journal entry in that case was filed on August 28, 1980, finding against plaintiff on all counts. Koch appealed that judgment to the Court of Appeals of the State of Kansas. The Kansas Court of Appeals affirmed the state trial court's judgment in a Memorandum Opinion filed on November 5, 1981. Koch did not pursue an appeal to the Kansas Supreme Court.

Koch filed this civil rights action in the United States District Court for the District of Kansas alleging causes of action based upon the First Amendment, the Fourteenth Amendment, 42 U.S.C. Secs. 1983, 1985, 1986 and 1988. Citing res judicata, the district court granted defendant's motion for partial summary judgment on plaintiff's procedural due process claim on May 11, 1983. A jury trial was commenced on August 15, 1983 and ended on September 2, 1983. At the close of the plaintiff's case, the district court granted a directed verdict in favor of the city commissioner defendants Schrag, Bornholdt, Gingerich, Corey and Robinson. The district court also directed a verdict in favor of defendants on Koch's conspiracy claim, 42 U.S.C. Secs. 1985 and 1986. The jury returned a special verdict accompanied by special interrogatories on September 2, 1983. The jury found defendants Pyle and Jones not liable. The jury found the City of Hutchinson liable for abridging Koch's First Amendment rights to freedom of speech.

On September 12, 1983, defendant City filed a motion for judgment notwithstanding the verdict. The court granted defendants' motion to set aside the verdict and entered judgment in favor of defendant city. Plaintiff filed his notice of appeal on November 28, 1983.

FACTS

Thomas Koch was employed by the City of Hutchinson Fire Department for approximately 19 years. From November 2, 1976 until his demotion to Fire Prevention Inspector on July 23, 1979, Koch served as Fire Marshal. As Fire Marshal, Koch's duties included supervision of fire prevention inspectors, responsibility to the fire chief, and investigation of all fires.

The City of Hutchinson is a municipal corporation of the first class, organized under the laws of Kansas. At all times pertinent to this suit, defendants Schrag, Bornholdt, Gingerich, Carry and Robinson were the City Commissioners. These defendants constituted the governing body of Hutchinson. Defendant Pyle was the City Manager, responsible for the entire administration of the City. Defendant Jones was the Fire Chief of the Hutchinson Fire Department.

On May 11, 1979, in execution of their official duties, Koch and two other inspectors investigated a house fire in which a two year old girl burned to death. On May 24, 1979 Koch submitted his fire investigation report, concluding that the cause of the blaze was aggravated arson. This conclusion was contrary to Koch's preliminary statements to the effect that the fire was accidental. As well, the report omitted discussion of a May 22, 1979 General Laboratory's report that a cracked glass valve, previously sent to General Laboratory by Koch, was a possible source of the fire.

Dissatisfied with Koch's report, County Attorney O'Sullivan--a non-party--sought written reports as to the fire's cause from the two other fire investigators. Both investigators opined the fire was an accident. On May 23, 1979, at the behest of O'Sullivan, Special Agent Maudlin of the Kansas Bureau of Investigation also investigated the fire. With little cooperation from Koch, Special Agent Maudlin concluded there was no evidence upon which a finding of arson could be made.

On May 25, 1979, O'Sullivan, not Koch, released the contents of Koch's report to the press. "I had been contacted by a Hutchinson news reporter asking me about the investigation, and at that time, I told her about Koch's report and conclusion." On June 5, 1979, an article appeared in the Hutchinson paper saying: "[A]ccording to reports released Tuesday morning by Reno County attorney Joe O'Sullivan, the official cause of the fire is listed as aggravated arson by Hutchinson fire marshal Tom Koch." Koch testified explicitly that he did not provide a copy of his report to the press.

A meeting was held on May 30, 1979 between O'Sullivan, Maudlin, Koch and Jones. A raging hostility developed between Koch and O'Sullivan. Shortly following this meeting the local media published the debate as to the fire's origin and the intragovernmental haggling.

Sometime after June 5, 1979, O'Sullivan first heard about the General Laboratory tests, known to Koch yet omitted from his report. O'Sullivan instigated a police investigation, borne out of animus and a belief that the omission constituted official misconduct. Investigating Detective Snell reported he had encountered hostility and belligerence from Koch.

Following this report, O'Sullivan turned the matter over to Fire Chief Jones. O'Sullivan wrote, in a July 13, 1979 letter that he, the police, and the KBI had an absolute lack of confidence in Koch's ability to discharge his responsibilities as Fire Marshal. O'Sullivan further noted he would no longer rely on Koch's opinions as bases for criminal charges nor sponsor him as a witness.

On Monday, July 16, 1979, City Manager Pyle and Fire Chief Jones discussed the situation and decided to place Koch on a paid leave of absence pending further investigation--the "troubled employee's program". In the course of the investigation, Jones met with Koch to hear his side of the story. Upon conclusion of the investigation, Jones and Pyle met and determined because of the fire inspection report and its ramifications, demotion was called for. Koch was notified of such on July 23, 1979. After the demotion, Koch took a substantial amount of sick leave due to an unrelated injury until he took disability retirement from the Fire Department on August 1, 1980.

I

WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANTS'

PARTIAL MOTION FOR SUMMARY JUDGMENT ON KOCH'S DUE

PROCESS CLAIMS, FINDING SUCH CLAIMS

BARRED BY RES JUDICATA

In his complaint, Koch contends his demotion without a hearing was a violation of procedural due process as guaranteed by the Fourteenth Amendment. By a memorandum and order of May 11, 1983, the district court granted defendants' motion for partial summary judgment on Koch's procedural due process claim. The district court pronounced the judgment of the state court collaterally estopped Koch from re-litigating this claim. A trial court's granting of a motion for summary judgment "may be affirmed if any proper grounds exist to support the ruling". Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1124 (10th Cir.1979), cert denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979).

The state trial court found

The plaintiff has no sufficient property interest in the rank of Fire Marshal so as to be entitled to a due process hearing.

Journal of Judgment, Koch v. Martindell, et al., No. 79 C 403, August 28, 1980. The federal trial court later found Koch

was afforded a full and fair opportunity to litigate his procedural due process claims of a property interest in his position as Fire Marshal and of a liberty interest in good name and reputation in the community.

Memorandum and Order, May 11, 1983.

Res judicata encompasses two distinct doctrines, issue preclusion and claim preclusion. ¹ For present purposes, issue preclusion prohibits the relitigation of facts and questions that were in issue in a previous action between the same parties, and which were actually litigated. See generally, 46 Am.Jur.2d, Judgments Secs. 415-429 (1969). Claim preclusion, on the other hand, prohibits a...