Mesa v. White, 98-2254

• Decision Date: 23 November 1999
• Docket Number: No. 98-2254,98-2254
• Citation: 197 F.3d 1041
• Parties: (10th Cir. 1999) GREGORIO MESA, Plaintiff-Appellant, v. ANTHONY WHITE, District Attorney, individually and in his official capacity; MANUEL SERNA, County Commission Chairman, individually and in his official capacity; ZEKE SANTA MARIA, County Commissioner, individually and in his official capacity; CARL SCHOLL, County Commissioner, individually and in his official capacity; STEVE AMLAND, Assistant District Attorney, individually and in his official capacity, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1041

197 F.3d 1041 (10th Cir. 1999)

GREGORIO MESA, Plaintiff-Appellant, v. ANTHONY WHITE, District Attorney, individually and in his official capacity; MANUEL SERNA, County Commission Chairman, individually and in his official capacity; ZEKE SANTA MARIA, County Commissioner, individually and in his official capacity; CARL SCHOLL, County Commissioner, individually and in his official capacity; STEVE AMLAND, Assistant District Attorney, individually and in his official capacity, Defendants-Appellees.

No. 98-2254

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 23, 1999

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. D.C. No. CIV-96-418-HB/LCS

Gregorio Mesa, pro se.

Garnett R. Burks, Jr., of Sage and Burks, P.C., Las Cruces, New Mexico, and Timothy S. Hale, of Riley, Shane & Hale, P.A., Albuquerque, New Mexico, for Defendants-Appellees.

Before HENRY, BARRETT, and PORFILIO, Circuit Judges.

BARRETT, Senior Circuit Judge.

Plaintiff Gregorio Mesa appeals from the district court's grant of summary judgment in defendants' favor on Mesa's claim under 42 U.S.C. § 1983 alleging they violated his First Amendment right to speak at a public meeting. We review a decision granting summary judgment de novo, using the same legal standard applicable in the district court. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999). Moreover, "[i]n cases involving the First Amendment, the de novo standard is appropriate . . . for the further reason that . . . an appellate court has an obligation to make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression." Horstkoetter v. Department of Pub. Safety, 159 F.3d 1265, 1270 (10th Cir. 1998) (internal quotations omitted).¹

I.

Because this matter comes to us on appeal from a grant of summary judgment, we present the facts in the light most favorable to Mesa. Mesa is a former county commissioner of Grant County, New Mexico. In 1993, while he was a commissioner, the county commission voted to terminate the employment of Luis Cardoza, the county manager. Mesa voted for and was strongly in favor of Cardoza's termination. In January 1995, defendants Manuel Serna and Zeke Santa Maria took office as commissioners, and the commission voted to fire the new county manager and rehire Cardoza as interim county manager. Mesa, who was no longer a commissioner, asked to speak during the public comment period of the next commission meeting on February 16, and his written request stated that he wanted to discuss "Luis Cardoza." He was placed on the meeting agenda, with his topic of discussion listed as "presentation regarding Luis Cardoza."

Meanwhile, on February 13, defendant Steve Amland, an assistant district attorney, met with Cardoza, who, as interim county manager, could approve or disapprove agenda items. They discussed whether Mesa's request to speak was too broad and vague under County Resolution No. 93-11-18, requiring in relevant part as follows:

The matter to be presented [for an item to be included on the meeting agenda] must be stated with sufficient specificity so as to apprise the Commissioners and allow them to gather any information necessary to discuss the matter. No person shall be placed on the agenda who does not provide a specific matter to be presented.

R. Vol. I, Doc. 63, Ex. B. Following further research on the issue, Amland concluded that Mesa's request was too vague and broad. He also concluded that the subject Mesa wished to discuss could potentially fall under the categories of "personnel" (apparently because the commissioners were considering rehiring Cardoza on a permanent basis) and "litigation" (apparently because Cardoza had claims against the county related to his termination), which he thought should be discussed at a closed meeting as provided by New Mexico's Open Meetings Act, N.M. Stat. Ann. § 10-15-1 (Michie 1978). He informed Cardoza of the results of his research and recommended to the commissioners that they not allow Mesa to speak at the February 16 meeting, although he also warned them that Mesa might have a constitutional right to speak. Although Mesa had sent the commissioners a letter on February 10 stating he would file civil and criminal charges against them if they prohibited him from speaking, the commissioners accepted Amland's recommendation and prohibited Mesa from speaking at the meeting.

Mesa then filed this § 1983 action alleging that by prohibiting him from speaking at the meeting, defendants had violated his First Amendment right of free speech. Amland and defendant Anthony White, the district attorney and Amland's supervisor, jointly moved for summary judgment, Amland on the ground of qualified immunity and White on the grounds that there was no evidence he failed to train Amland (as Mesa alleged), and that he was not involved in denying Mesa the opportunity to speak. Amland and White also moved for dismissal of the claims against them in their official capacities on Eleventh Amendment immunity grounds. The three defendant commissioners moved for summary judgment on the basis of qualified immunity. Mesa opposed all of these motions, but did not file any dispositive motions himself.

The district court granted Amland and White's motion to dismiss the official capacity claim against them on Eleventh Amendment grounds, and Mesa does not challenge this ruling on appeal. The district court also granted summary judgment to all defendants, though not specifically on the basis of qualified immunity. The court held that there was no First Amendment violation because defendants' restriction of Mesa's speech was a permissible, content-neutral time, place and manner restriction. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).²

On appeal, Mesa raises two issues: (1) the New Mexico Open Meetings Act did not form a legitimate basis for defendants' restriction on his speech; and (2) there is a disputed issue of fact as to whether defendants prevented him from speaking in a public forum based on his viewpoint.³

II.

Courts use a three-step framework for analyzing the constitutional protections afforded to free speech rights. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); Summum v. Callaghan, 130 F.3d 906, 913 (10th Cir. 1997). The first step is to determine whether Mesa's claim involves protected speech, and there is no question that it does. The second step is to determine what type of forum the county commission meeting is because that determination defines in large part the extent to which a government may limit speech in that forum and establishes the standard for judicial review; i.e., whether a heightened or reasonableness standard applies. See id. The district court held that the meeting was a designated public forum, and none of the parties disputes that determination. We therefore examine defendants' regulation of Mesa's speech under a heightened scrutiny standard. The district court noted the two possible heightened standards as follows:

In this case, the Commission designated the February 16, 1996 meeting a public forum when the Commission intentionally opened it to the public. Thus, by creating this forum, the Commission became bound by the same standards that apply in the case of a traditional public forum. As the Supreme Court held in Perry, content-neutral time, place and manner restrictions are permissible if they are narrowly drawn to achieve a significant governmental interest and if they allow communication through other channels. However, content-based exclusions must be narrowly tailored to effectuate a compelling governmental interest. Id.

District court order at 8; see also Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994) (explaining reasons for different levels of heightened scrutiny).

The final step is to determine whether the justifications for prohibiting Mesa's speech at the meeting satisfy the requisite standard. This step actually has two subparts. First, courts must determine whether the regulation was content based or content neutral, which establishes whether a strict scrutiny or intermediate standard of review is applied. See Perry Educ. Ass'n, 460 U.S. at 45. The district court held that the restriction on Mesa's speech was content neutral and applied the intermediate standard of scrutiny, requiring only that the restriction serve a significant government interest. Because Mesa does not properly challenge the court's determination that the restriction was content neutral, we apply that standard as well.⁴ Then we examine the interests defendants contend are served by the regulation to see whether they are significant. See Summum, 130 F.3d at 913.

A.

The significant interest posited by defendants and accepted by the district court was the potential discussion of a "personnel or litigation matter involving Grant County." District court's order at 11. We cannot agree that defendants demonstrated that this is a significant government interest.⁵

The basis for defendants' stated interest in preventing Mesa's speech on personnel and litigation matters is two exceptions to New Mexico's Open Meetings Act, N.M. Stat. Ann. § 10-15-1 (Michie 1978), which generally requires that the commission's meetings be open to the public. Exception H(2) applies to "limited personnel matters," which is defined to mean "the discussion of hiring, promotion, demotion, dismissal, assignment or resignation of or the investigation or consideration of complaints or charges against any individual public employee; provided further that this subsection is not to be construed as to exempt final actions on personnel from being taken at open public meetings." Exception H(7) applies to "meetings subject to the attorney-client privilege pertaining to threatened or pending litigation in which the...