Marshall v. Porter County Plan Com'n

• Decision Date: 30 September 1994
• Docket Number: No. 93-2794,93-2794
• Citation: 32 F.3d 1215
• Parties: 9 IER Cases 1780 Elizabeth MARSHALL, Plaintiff-Appellee, v. PORTER COUNTY PLAN COMMISSION, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1215

32 F.3d 1215

9 IER Cases 1780

Elizabeth MARSHALL, Plaintiff-Appellee, v. PORTER COUNTY PLAN COMMISSION, et al., Defendants-Appellants.

No. 93-2794.

United States Court of Appeals Seventh Circuit.

Argued Feb. 8, 1994.

Decided Aug. 23, 1994.

Rehearing and Suggestion for Rehearing

En Banc Denied Sept. 30, 1994.

Rosalie B. Levinson, Levinson & Lustina, Merrillville, IN (argued), Ivan E. Bodensteiner, Valparaiso, IN, for plaintiff-appellee.

Robert A. Welsh, Harris, Welsh & Lukmann, Chesterton, IN, William W. Kurnik, Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, IL (argued), for defendants-appellants.

Before PELL, WOOD, Jr., and ESCHBACH, Circuit Judges.

PELL, Circuit Judge.

After Elizabeth Marshall was terminated from her position as the Executive Secretary for the Porter County Plan Commission, she filed a suit under 42 U.S.C. Sec. 1983, in which she alleged that her discharge was in retaliation for exercising her First Amendment right to free speech. She also claimed that she was discharged in violation of the Fourteenth Amendment. The case proceeded to trial on her First Amendment claim, and the jury found for Marshall. The defendants appeal, claiming various trial errors and arguing that they did not violate Marshall's First Amendment rights.

I.

Elizabeth Marshall was appointed to the position of Executive Secretary of the Porter County Plan Commission in January 1984 and was reappointed annually until December 1991. The Plan Commission consisted of nine members, five of whom were appointed and four of whom were members by virtue of their holding other County offices. The Plan Commission holds hearings on rezoning, subdivisions, and changes in land use.

As the Executive Secretary, Marshall reviewed subdivision plats and organized procedures for variances, rezonings and use variances, in preparation for public hearings. In her capacity, she worked with the County Building Inspector, who was appointed by the Porter County Board of Commissioners. In January 1989, Ray Weltz was appointed as County Building Inspector, due in large part to the efforts of William Carmichael, who was a County Commissioner and a member of the Board. Shortly after Weltz' appointment, Marshall raised some questions about his performance, including excessive claims for mileage. Marshall also informed Carmichael and the Policy Committee of her concerns. No action was taken on the matters she raised.

Over the next few months the relationship between Weltz and Marshall deteriorated rapidly. At a meeting scheduled to address the conflict between Marshall and Weltz, on December 11, 1990, Marshall presented to the Plan Commission a list of concerns about Weltz, including his claims for excessive mileage, his involvement in partisan political activity in the office during county time, and his failure to make required building inspections. She also presented a list showing that one-half of the required inspections had not been performed. The Plan Commission took no action, and the situation remained the same. In early January of 1991, the Commission reappointed Marshall for a limited term of four months.

On January 24, 1991, Marshall met with Brian Hurley, attorney for the Plan Commission and the Board of Zoning Appeals, and informed him that in mid-December members of the Board of Zoning Appeals had met secretly, prior to a public meeting, in violation of the Indiana open door law. Marshall had overheard a discussion between a few members of the Board concerning a variance that had been requested by developer William Putz. Marshall heard the members state that they were "going to get this guy." In response to Marshall's comments, Hurley indicated that he would not take action because the Board of Zoning Appeals had already prevailed in court and would prevail on appeal. In February, Marshall provided Putz' attorney with an affidavit that described the improprieties that she had observed. The newspapers reported the disclosure.

The Plan Commission met in late February to discuss Marshall's job performance. Marshall was not present. At an executive meeting in March 1991, with Marshall present, the members of the Plan Commission discussed their concerns with Marshall. Two days later, Marshall's employment was terminated, resulting from a vote of 7-2 by the Plan Commission. Those who voted against Marshall cited reasons ranging from the way she was doing her job to the handling of the Putz matter and the nature of her complaints concerning Weltz.

Marshall filed suit. The defendants filed a motion for summary judgment in which they argued that Marshall's complaints concerning Weltz were personal in nature and not protected, that because she was a policymaker, her speech was not protected by the First Amendment, that she failed to establish that she was discharged for her speech, that she was not entitled to a name-clearing hearing under the Fourteenth Amendment, and that the defendants were entitled to qualified immunity. The district court granted the motion as to the Fourteenth Amendment claim and as to any claims against the defendants in their individual capacities. The district court denied the motion in all other respects.

The case proceeded to trial before a magistrate judge, pursuant to 28 U.S.C. Sec. 636(c). After the presentation of evidence, the trial court instructed the jury that, as a matter of law, Marshall spoke on matters of public concern and left for the jury the question of whether she was discharged for that speech:

A governmental employee, such as the plaintiff, has a right protected by the First Amendment to the U.S. Constitution to speak on matters of public concern relating to her agency or office. The court has determined that the plaintiff was speaking and raising questions about matters of public concern in her speech about Weltz' mileage reports, her allegations about his failure to conduct inspections, his political activities, and the Putz matter. Therefore, if Ms. Marshall shows that her speech was a substantial or motivating factor in the Plan Commission's decision to discharge her, then you must find in the plaintiff's favor unless the defendants prove by a preponderance of the evidence that she would have been discharged even absent her protected speech.

Court's Instr. 15. The jury found in favor of Marshall and awarded damages. The defendants subsequently filed a motion for a new trial or judgment notwithstanding the verdict, which the district court denied.

II.

The defendants argue that the district court improperly instructed the jury that Marshall's speech was of a matter of public concern. The defendants submit that Marshall's motive was essential to the determination of whether she was speaking out on a matter of public concern and that it was a disputed fact that should have been submitted to the jury through the defendants' tendered instruction concerning motive.

As recently reiterated by the United States Supreme Court, "[t]o be protected the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " Waters v. Churchill, --- U.S. ----, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), quoting Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983), quoting Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). The question presented by this appeal is whether Marshall's speech was a matter of public concern, as defined in Pickering and Connick. Whether the speech is a matter of public concern is a matter of law determined by the trial judge, which we review de novo. Breuer v. Hart, 909 F.2d 1035, 1039 (7th Cir.1990); see Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690 n. 7.

We make that determination based on " 'the content, form, and context of a given statement as revealed by the whole record,' " Smith v. Fruin, 28 F.3d 646, 651 (7th Cir.1994) (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690), but content is the most important factor. Id.; Belk v. Town of Minocqua, 858 F.2d 1258, 1264 (7th Cir.1988) ("content is the greatest single factor in the Connick inquiry"); Yoggerst v. Hedges, 739 F.2d 293, 296 (7th Cir.1984). Motive may play some part in determining whether the speech is of public concern because speech that promotes a purely private interest is not protected. But motive is not questioned in a vacuum. When we examine whether the content, form and context indicate that motive is personal, see Callaway v. Hafeman, 832 F.2d 414 (7th Cir.1987), we also examine the speech itself. If the speech concerns a subject of public interest but the expression addresses only the personal effect upon the employee, then as a matter of law the speech is not of public concern. See Smith, 28 F.3d at 651-52. Motive may be relevant, but it is not dispositive. Glass v. Dachel, 2 F.3d 733, 741 (7th Cir.1993); Belk, 858 F.2d at 1264. It is often the case that those who speak out are also involved in personal disputes with employers and other employees. See, e.g., Breuer, 909 F.2d at 1039 ("Wrongdoing may often be revealed to the proper authorities only by those who have some personal stake in exposing wrongdoing."); Belk, 858 F.2d at 1264. A personal aspect contained within the motive of the speaker does not necessarily remove the speech from the scope of public concern. Breuer, 909 F.2d at 1039 ("fact that these serious allegations arose in the context of what began as a personal dispute does not in itself disqualify from protection all speech on the topics arising from that dispute"). In fact, we have observed that a plaintiff's speech could be characterized as a matter of public concern even if the speaker stands to gain a personal benefit in...