Mihos v. Swift

• Decision Date: 17 December 2002
• Docket Number: No. CIV.A. 02-10306-REK.,CIV.A. 02-10306-REK.
• Citation: 235 F.Supp.2d 45
• Parties: Christy Peter MIHOS, Plaintiff v. Jane M. SWIFT, individually and in her official capacity as the Acting Governor of the Commonwealth of Massachusetts, and William F. Galvin, in his official capacity as the Secretary of the Commonwealth of Massachusetts, Defendants
• Court: U.S. District Court — District of Massachusetts

235 F.Supp.2d 45

Christy Peter MIHOS, Plaintiff v. Jane M. SWIFT, individually and in her official capacity as the Acting Governor of the Commonwealth of Massachusetts, and William F. Galvin, in his official capacity as the Secretary of the Commonwealth of Massachusetts, Defendants

No. CIV.A. 02-10306-REK.

United States District Court, D. Massachusetts.

December 17, 2002.

Richard J. Hayes, Boston, MA, Harvey A. Schwartz, Rodgers, Powers & Schwartz LLP, Boston, MA, for Christy Peter Mihos, Plaintiff.

David R. Kerrigan, Attorney General, Boston, MA, Wayne F. Dennison, Brown Rudnick Berlack Israels LLP, Boston, MA, for Jane Swift, individually and in her official capacity as the Acting Governor of the Commonwealth of Massachusetts, Defendant.

Opinion

KEETON, District Judge.

I. Summary of Rulings

At the Case Management Conference (CMC) of November 26, 2002, I presented to counsel related sources of constitutional, statutory, and precedential guidance that are, in my view, central to deciding the final outcome of this case. As that conference proceeded, the attorneys joined in a request for time to file memoranda of authorities on these matters. I allowed that request and have now had the benefit of their thoughtful and very helpful submissions, and the benefit of oral arguments at the Case Management Conference of December 10, 2002.

This opinion explains rulings of the court concerning fundamental rights of the plaintiff and defendant that are protected by the First Amendment to the Constitution of the United States. First Amendment rights are invoked in four distinct contexts: (1) the claims of the plaintiff, (2) the defenses against those claims, (3) the counterclaims of the defendant Swift, and (4) the defenses against those counter-claims.

In the American legal system, other constitutional provisions (federal and state), statutes (federal and state), and precedents (federal and state) guarantee protection for freedom of action and expression, beyond that afforded by the federal First Amendment.

Applying these constitutional, statutory, and precedential sources of guidance, I decide in this case, as matters of law are decided, nine propositions. The first three are stated immediately below.

Proposition One. As previously held in this case, plaintiff, Mihos, as a matter of law, is entitled to some form or forms of relief, equitable in nature, because of Acting Governor Swift's retaliation against him for his voting, in his capacity as Massachusetts Turnpike Commissioner, contrary to her communicated wishes. See Mihos v. Swift, ___ F.Supp.2d ___ (D.Mass.2002) (slip op. at 6-8).

Proposition Two. At a minimum, Mihos is entitled to declaratory relief; he is entitled to a declaration that his right to vote the way he considered appropriate is a right protected by the First Amendment to the Constitution of the United States of America. Id., slip op. at 6-7.

Proposition Three. Acting Governor Swift, at a minimum, has defenses, grounded in the First Amendment, to the scope of relief that a court may grant on the claims by Mihos.

The reasoning on which Proposition Three is founded is explained in Parts II-IV, VI, and VIII of this opinion.

For the reasons explained in Parts IV-VII of this opinion, the rights identified in these three propositions are protected also on numerous additional grounds.

On the basis of the stated propositions and additional considerations bearing on costs and attorneys' fees, I have determined, as matters of law are decided, that Acting Governor Swift has First Amendment and other protections against liability under the claims by Mihos for punitive damages, for defamation, and for costs and attorneys' fees incurred by Mihos.

Also, I decide, as matters of law are decided, that Mihos is not entitled to an award of damages by this court under 42 U.S.C. § 1983 for costs and attorneys' fees.

II. The First Amendment Applies to Claims by Mihos

Even though, as is explained in Part III below, the First Amendment protections for expression are usually invoked defensively, occasionally the First Amendment can appropriately be invoked to support a claim.

By the time the present case came before me, moreover, it had become clear, as I interpret the precedents, that Supreme Court decisions and decisions of the Courts of Appeals for several Circuits, including the First, support extension of First Amendment protection to rights of plaintiffs like those asserted by Mihos in this case. See Mihos v. Swift, supra, 2 slip op. at 6

III. The First Amendment Applies to Defenses of Swift

A. Introduction

This case arises out of the efforts of Acting Governor Jane M. Swift to ensure the effective management of one of the largest public works projects in history. Plaintiff is a member of the Massachusetts Turnpike Authority (the "Authority"), which owns and operates the Massachusetts Turnpike, the Boston Harbor Tunnel Crossing, and certain facilities at the Metropolitan Highway System. The Authority also acts on behalf of the Massachusetts Highway Department with regard to the design and construction of the Central Artery Project. Plaintiff here alleges that Swift interfered with his federally protected civil rights by exercising her discretion to remove him as a member of the Authority. She caused a letter to be delivered to Mihos informing him that she was removing him "for cause" from his "position as a member of the Massachusetts Turnpike Authority pursuant to M.G.L. c. 30, § 9." Levy v. Acting Governor ("Levy I"), 435 Mass. 697, 698, 761 N.E.2d 494 (2002). The letter stated in part as follows:

You are being removed from your position because you have (1) violated your oath of office by failing to administer the duties of your office faithfully and impartially, (2) failed to provide constructive and effective leadership for the Authority, improperly interfering with management of the Authority and disrupting its operation, (3) acted in a fiscally irresponsible manner, engaging in actions and decisions that are contrary to the financial interest of the Authority and the Commonwealth and that violate the trust and undermine the confidence of the public finance market, the rating agencies, the Federal Highway Administration and the Department of Transportation Inspector General in the management of the Authority.

Levy I at 698-99, 761 N.E.2d 494.

Following proceedings initiated by Mihos and Levy, another Authority member, in the Supreme Judicial Court, Swift conducted hearings concerning the removal of Mihos and Levy. Id. Those hearings were conducted over the course of two days. Levy v. Acting Governor ("Levy II"), 436 Mass. 736, 744, 767 N.E.2d 66 (2002). Evidence was presented on the revenue needs for the Massachusetts Turnpike Authority, whether the revenue plans prepared by the various parties met debt coverage ratios preferred by bond rating agencies, and whether a revenue plan prepared and submitted by Mihos was sufficient to meet Authority obligations. Levy II at 749-51, 767 N.E.2d 66. "Ms. Swift was present during the hearings and assessed the credibility of the witnesses, both in the context of conflicting testimony and more generally...." Levy II at 762, 767 N.E.2d 66 (quoting Cordy, J., dissenting).

The letter in which Swift notified Mihos that she was removing him from office was dated February 6, 2002. In the exercise of her discretion, Swift had concluded that Mihos' "acts and omissions concerning the Authority's finances, particularly during the time period culminating with the Authority's October 30, 2001[,][b]oard meeting and immediately thereafter, were fiscally irresponsible, resulting in adverse consequences of substantially decreasing projected revenues of the Authority, damaging the Authority's credit outlook, and creating financial instability." Levy II at 744, 767 N.E.2d 66. Swift further found that the alternative revenue plan prepared by Mihos was created "hurriedly" and in a "haphazard" manner, and that it did not "adequately compensate for the revenues that had been lost as a result of [Mihos' and Levy's] actions." Levy II at 745, 767 N.E.2d 66. Swift also identified several other reasons for Mihos' removal, including his interference with the lines of authority, divisiveness with respect to the Authority's staff, micro-management of matters, and the fact that he had jeopardized the Authority's standing with bond rating agencies. Levy II at 745, 767 N.E.2d 66.

Plaintiff here seeks monetary damages of three types based on Swift's decision to terminate him for, inter alia, fiscal irreponsibility. First, Mihos says that he is entitled to recovery of the "large amounts in legal fees" incurred in "defending himself against the acting governor's conduct in removing him from the Massachusetts Turnpike Authority." Plaintiff's Submission Concerning Damages, dated November 21, 2002, p. 2. Second, blaming Swift for the adverse publicity that he perceives himself to have received, Mihos seeks compensation for "the damage that was done to his ... name and reputation, and the emotional travail he underwent...." Id. Finally, "Mihos seeks an award of punitive damages against the acting governor." Id. at 3.

B. Common First Amendment Application to Defenses

The most commonly expected and accepted application of the First Amendment is defensive. This was the kind of application that occurred in the first recognition by the Supreme Court of the United States of a constitutional foundation for privilege in defamation cases. The case was New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

The federal First Amendment protects the right of a citizen of the United States of America to comment on public affairs and the performance of public officials. Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). A passage in Chief Justice Rehnquist's opinion in Hustler cites with approval a 1944 opinion of Justice Frankfurter, among...