Mihos v. Swift
| Decision Date | 13 February 2004 |
| Docket Number | No. 03-1038.,No. 02-2521.,No. 03-1090.,02-2521.,03-1038.,03-1090. |
| Parties | Christy Peter MIHOS, Plaintiff, Appellee/Cross-Appellant, v. Jane SWIFT, Individually and in her Official Capacity as the Acting Governor of the Commonwealth of Massachusetts, Defendant, Appellant/Cross-Appellee, and William F. Galvin, in his Official Capacity as Secretary of the Commonwealth of Massachusetts, Defendant. |
| Court | U.S. Court of Appeals — First Circuit |
Thomas A. Barnico, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, and David R. Kerrigan, Assistant Attorney General, was on brief, for appellant.
Harvey A. Schwartz, with whom Laurie Frankl and Rodgers, Powers & Schwartz LLP were on brief, for appellee.
Before TORRUELLA and LIPEZ, Circuit Judges, and William W. SCHWARZER,* Senior U.S. District Judge.
In 2002, then-Acting Governor Jane Swift fired Christy Peter Mihos and Jordan Levy from their positions as members of the Massachusetts Turnpike Authority after both men cast votes on the timing of certain toll increases on roads and tunnels in Massachusetts. In this action, Mihos brought suit against Swift under the First and Fourteenth Amendments and 42 U.S.C. § 1983, alleging that Swift violated his First Amendment rights by removing him in retaliation for voting against her wishes on the toll increases. Swift filed a motion to dismiss, raising the defense of qualified immunity.
Although the pleadings never advanced beyond Swift's motion to dismiss, the district court issued two rulings in this case, see Mihos v. Swift, 2002 WL 31455257 (D.Mass.2002)("Mihos I") and Mihos v. Swift, 235 F.Supp.2d 45 (D.Mass.2002)("Mihos II"). In its first ruling, the court held that Swift violated Mihos's First Amendment rights, rejected Swift's qualified immunity defense, and denied Swift's motion to dismiss the claims against her in her individual capacity. In its second ruling, the court entered a declaratory judgment that Swift violated Mihos's First Amendment rights but essentially changed course on qualified immunity, ruling that the law protected Swift against claims for damages arising from the violation of Mihos's First Amendment rights. Specifically, the court entered a final judgment that included these provisions:
(1) Plaintiff, Christy Peter Mihos, is awarded the following declaratory relief: It is hereby declared that Acting Governor Jane M. Swift, acting in her official capacity, violated his legally protected rights by retaliating against him for his voting, in his official capacity as Massachusetts Turnpike Commissioner, contrary to her communicated wishes.
(2) All claims of Mihos for damages and for any other form of relief beyond that allowed in paragraph (1) of this judgment are DISMISSED WITH PREJUDICE.
Mihos II, 235 F.Supp.2d at 63.
Swift appeals the court's denial of her motion to dismiss in Mihos I and the declaratory judgment entered against her in Mihos II. Mihos appeals the ruling denying his claims for damages.1 For the reasons set forth herein, we affirm the denial of the motion to dismiss, vacate the declaratory judgment and the denial of damages, and remand for further proceedings.
This case comes to us with two lengthy state court opinions and two district court opinions already filed. See Levy v. The Acting Governor, 435 Mass. 697, 761 N.E.2d 494 (Mass.2002)("Levy I"); Levy v. The Acting Governor, 436 Mass. 736, 767 N.E.2d 66 (Mass.2002)("Levy II"); Mihos I, 2002 WL 31455257 (D.Mass.2002); and Mihos II, 235 F.Supp.2d 45 (D.Mass.2002). Because the extensive and undisputed factual background of this case has been set forth fully in published opinions, particularly in Levy II, we will confine our recitation of the facts to those pertinent to our holdings. The findings and analysis of each prior opinion are discussed below where relevant to the issues now before us on appeal.
Governor Paul Cellucci appointed Christy Peter Mihos to the Massachusetts Turnpike Authority in December 1998 to fulfill the unexpired term of a departing member. In July 1999, Governor Cellucci reappointed Mihos to the Turnpike Authority to a full eight-year term. In May 2000, Mihos was elected vice-chairman of the Turnpike Authority.
The Turnpike Authority is "a body politic and corporate" and "a public instrumentality" authorized to operate the Massachusetts Turnpike and certain other roads known as the Metropolitan Highway System, including the Massachusetts Turnpike, its extension into Boston, and the tunnels under Boston Harbor (the Sumner Tunnel, the Callahan Tunnel, and the Ted Williams Tunnel). Mass. Gen. Laws ch. 81A, §§ 1, 3. Three members, each of whom is appointed by the Governor, comprise the Turnpike Authority, and a two member quorum is required to conduct business. Id. at § 2. Through agreements with the Massachusetts Highway Department, the Turnpike Authority is responsible for certain aspects of the design and construction of the Central Artery/Tunnel Project, commonly known as "the Big Dig." Additionally, the Turnpike Authority bears sole responsibility for establishing tolls for the Turnpike, the Boston Harbor tunnel crossings, and the Metropolitan Highway System.
This toll-setting responsibility gave rise to the dispute between Mihos and Swift. The Executive Office of Transportation and Construction, the Turnpike Authority, and Governor Cellucci reached a consensus in late 1996 or early 1997 that tolls should be raised in 1997 and again in January 2002. In April 2001, then-Lieutenant Governor Swift took office as Acting Governor when Cellucci departed to accept an ambassadorial posting. During the latter part of 2001, Mihos and Levy became concerned about the proposals to implement toll increases on portions of the Massachusetts Turnpike in January 2002. Following investigations of the financial impact of the proposed toll increase, including consulting with attorneys, financial experts, and bond counsel for the Authority, Mihos and Levy concluded that the toll increase was neither necessary as a matter of law nor in the best interests of the Turnpike Authority. Swift, however, supported the January 2002 increase.
On October 30, 2001, the three Turnpike Authority members met. A motion to raise the tolls in January 2002 failed for want of a second. Subsequently, a motion to increase the tolls in July 2002 was made, seconded, and passed in a 2-1 vote, with Mihos and Levy in favor. Swift delivered letters to Mihos and Levy dated November 16, 2001, notifying them that she was removing them from their positions as members of the Turnpike Authority.
Following receipt of those letters, Mihos and Levy filed a verified complaint in the Supreme Judicial Court of Massachusetts seeking, inter alia, declaratory relief that Swift lacked authority to remove members of the Turnpike Authority. The Supreme Judicial Court (SJC) rejected that argument and ruled instead that Mass. Gen. Laws ch. 30, § 9 "confers on the Acting Governor the power to remove a member of the Massachusetts Turnpike Authority in accordance with the terms of that statute." Levy I, 435 Mass. at 700, 761 N.E.2d 494.
After this ruling, Swift conducted hearings to determine whether she would remove Mihos and Levy from their positions on the Turnpike Authority for cause. By letter dated February 6, 2002, Swift notified Mihos and Levy that she was removing them from office, asserting that the principal cause for removal was the fiscal irresponsibility of their votes at the October 30, 2001 meeting. Mihos and Levy again sought review, in the nature of certiorari, under Mass. Gen. Laws ch. 249, § 4, in county court. A single justice reserved and referred the matter to the full court. The SJC held, inter alia, that "the dispute involves a difference of opinion over policy that, in the circumstances, does not constitute substantial evidence of cause to remove" and vacated the order of dismissal. Levy II, 436 Mass. at 737, 767 N.E.2d 66. Mihos and Levy were duly restored to their positions and received back pay.
In addition to seeking review in state court, Mihos reserved his right to press his First Amendment claim in federal district court, which he did simultaneously with the state court proceedings.2 In his district court complaint, Mihos alleged that Swift violated his First Amendment rights by retaliating against him because of his vote regarding the timing of the toll increases, and he sought, inter alia, declaratory relief, compensatory and punitive damages, and attorney's fees. Swift responded with a motion to dismiss, asserting the defense of qualified immunity. Both parties agreed that discovery should be stayed pending the resolution of the qualified immunity issue. On October 29, 2002, the district court rejected Swift's qualified immunity defense and denied her motion to dismiss. Mihos I, 2002 WL 31455257 at *7-*8. The district court then stated that "[t]he only remaining issue or issues this court must decide concern what relief to plaintiff is appropriate," and ordered that the parties' arguments on damages would be heard at the next case management conference. Id. at *8.
Pursuant to the district court's request, the parties submitted memoranda regarding plaintiff's claim for compensatory and punitive damages, as well as attorney's fees. Additionally, plaintiff sought discovery on issues relating to punitive damages. After denying the discovery request, the district court issued an opinion and final judgment on December 17, 2002. Mihos II, 235 F.Supp.2d 45. The district court declared that Swift "violated [Mihos's] protected rights by retaliating against him for his voting." However, even though the district court previously had ruled in Mihos I that Swift was not entitled to qualified immunity, it...
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