Mitchell v. King

• Decision Date: 22 June 1976
• Docket Number: No. 75-1412,75-1412
• Citation: 537 F.2d 385
• Parties: John A. MITCHELL, Plaintiff-Appellant, v. Bruce KING, Governor of the State of New Mexico, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 385

537 F.2d 385

John A. MITCHELL, Plaintiff-Appellant, v. Bruce KING, Governor of the State of New Mexico, et al Defendants-Appellees.

No. 75-1412.

United States Court of Appeals Tenth Circuit.

Argued March 24, 1976.

Decided June 22, 1976.

John A. Mitchell of Mitchell, Mitchell, Alley & Morrison, Santa Fe, N. M. for plaintiff-appellant.

Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, N. M. (Toney Anaya, Atty. Gen., Santa Fe, N. M. on the brief), for defendants-appellees.

Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

John A. Mitchell (Mitchell) appeals from the Order of the District Court granting appellee's Motion to Dismiss the Complaint and cause of action for failure to state a claim upon which relief can be granted.

When a complaint and action are dismissed for failure to state a claim upon which relief can be granted, it must appear beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974); Hudson v. Harris,478 F.2d 244 (10th Cir. 1973); Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). A motion to dismiss under Fed.Rules Civ.Proc., rule 12(b) admits all well-pleaded facts in the complaint as distinguished from conclusory allegations. Jones v. Hopper, 410 F.2d 1323 (10th Cir. 1969), cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399 (1970). The factual allegations of the complaint must be taken as true and all reasonable inferences from them must be indulged in favor of the complainant. Williams v. Eaton, supra, Olpin v. Ideal National Insurance Co., 419 F.2d 1250 (10th Cir. 1969), cert. denied, 397 U.S. 1074, 90 S.Ct. 1522, 25 L.Ed.2d 809 (1970).

Mitchell claims jurisdiction under 28 U.S.C. § 1343(3) and (4) and asserts claims under 42 U.S.C. § 1983 to redress alleged deprivation under color of state law of certain rights secured to him by the Constitution of the United States. He also seeks declaratory relief pursuant to 28 U.S.C. §§ 2201, 2202 and Fed.Rules Civ.Proc., rule 57.

Allegations of Complaint

Mitchell's complaint alleges: That on or about July 20, 1971, then Governor Bruce King (King) appointed him (Mitchell) to the Board of Regents of the Museum of New Mexico to serve a six-year term pursuant to § 4-12-5, N.M.S.A., 1953 Comp.; that at the time of his appointment, he was a practicing attorney at law and a reputable citizen of the State of New Mexico; that the Board of Regents is responsible for the management and control of the Museum under specific statutory powers; that Board members serve independently and not at the pleasure of the governor; that about August 16, 1973, the Board elected Mitchell to serve as its Treasurer and Mrs. Mayer to serve as its President; that prior to a meeting of the Board scheduled for June 19, 1974, Mrs. Mayer indicated her desire to be re-elected President; that a majority of the Board members (including Mitchell) decided prior to the June 19th meeting that Mrs. Mayer should not be re-elected President; that this decision was communicated to David King; that Mrs. Mayer and David King then advised Governor Bruce King that the majority of the Board did not desire to re-elect her as President; that on June 17, 1974, Governor King telephoned Mitchell and informed him of his (King's) desire to have Mrs. Mayer re-elected President, but that if this could not be accomplished he wished to appoint one Tibo Chavez as her successor; that Governor King made similar calls to Board members Frank Bateman and W. J. Keller and he attempted to contact Mrs. Edmando R. Delgado; that on June 18, 1974, Mitchell wrote a letter to Mrs. Mayer in which he asked her to resign from the Board because she had injected politics into its affairs by obtaining the intervention of the governor and on the same date Mitchell advised the governor of his letter to her; that on June 25, 1974, Mitchell was informed by members of the press that the governor had requested his resignation from the Board; that on June 28, 1974, Mitchell received a letter from Governor King requesting his resignation from the Board and thanking him for the participation, time and energy he had contributed to the Board; that on July 3, 1974, Mitchell acknowledged Governor King's request and promised to consider it; that on July 15, 1974, Mitchell met with Frank DiLuzio, acting pursuant to Governor King, and in concert with David King and Mrs. Mayer, during which Mitchell was advised of Governor King's desire to provide the Board with a broader geographic distribution; that Mitchell responded that the governor's interference with the affairs of the Board created an issue of principle and conscience; that DiLuzio then advised Mitchell that the governor would attempt to remove him if he did not resign; that on July 25, 1974, Mitchell responded to DiLuzio by letter advising that Governor King's intervention on behalf of Mrs. Mayer had presented a challenge to the integrity of the Board and that he (Mitchell) had been singled out for removal only after he exercised his right of free speech regarding the election; that on August 2, 1974, DiLuzio delivered a notice signed by Governor King advising Mitchell that King had removed him as a Regent of the Museum under authority of Article V, Section 5 of the Constitution of New Mexico for "neglect of duty and malfeasance", said removal to be effective on August 2, 1974; that Mitchell rejected the opportunity to resign before the notice of removal was made public; that Mitchell had served faithfully, competently and with integrity as a member of the Board and as Treasurer; that the defendants purported to act knowingly and under color of the Constitution of the State of New Mexico and that they acted wilfully, maliciously, and intentionally to deprive Mitchell of his federal constitutional rights as guaranteed him by the First, Fifth and Fourteenth Amendments to the Constitution of the United States. Mitchell prayed for compensatory and punitive damages, costs and declaratory relief.

Trial Court Disposition of Motion to Dismiss

The Trial Court granted the Motion to Dismiss after the respective parties filed detailed briefs. The Order regarded all of the allegations of the complaint as facts. The Court found that Mitchell's claims are grounded upon three separate legal theories: (1) that the defendants wrongfully removed Mitchell from the office of Regent of the Museum of New Mexico contrary to the law of New Mexico; (2) that his removal from the office of Regent deprived him of property and liberty interests without due process of law, contrary to the Fourteenth Amendment; and (3) that he was removed from the office of Regent in retaliation for exercising his right of free speech contrary to the First and Fourteenth Amendments.

The Court found, in granting the motion to dismiss, that (a) Mitchell has no protected property interest in the office of Regent by virtue of Art. V, Sec. 5, N.M.Const. and the ruling of the New Mexico Supreme Court in Ulrick v. Sanchez, 32 N.M. 265, 255 P. 1077 (1927), (b) Mitchell has no liberty interests which were infringed by the nature or circumstances of the dismissal, relying upon Adams v. Walker, 492 F.2d 1003 (7th Cir. 1974), and (c) Mitchell's First Amendment rights in making public comment must be balanced against the state executive's interest in effectuating his policy decisions and that a Regent of the Museum occupies an office to which is delegated policy making responsibilities of the executive and that the chief state executive, having relied upon his appointee as one who would display political or personal loyalty, has a substantial interest in the effective supervision of the officers to whom he has delegated policy making powers, citing to Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Illinois State Employees Union, Council 34, etc. v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); Indiana State Employees Association, Inc. v. Negley, 501 F.2d 1239 (7th Cir. 1974) and other cases. In light of the Trial Court's dismissal of the two federal claims, the Court found that it was appropriate to decline pendent jurisdiction over Mitchell's claim that his dismissal as Regent was contrary to New Mexico law.

Appellate Contentions

On appeal, Mitchell presents the following contentions: (1) that his removal and revocation as an appointee Regent to the Museum of New Mexico was violative of his rights to free speech secured to him by the First Amendment to the Constitution of the United States and taken in retaliation therefore when he spoke out; (2) that his removal and revocation as Regent aforesaid for causes set forth in the New Mexico Constitution, without notice and an opportunity to defend, constituted a deprivation of his property and liberty without due process of law guaranteed to him by the Fifth and Fourteenth Amendments to the Constitution of the United States and (3) that the complaint should not have been dismissed on the basis that it failed to allege any claims which would, under any state of facts, entitle Mitchell to relief.

I.

We focus initially on the rule that the construction of a state constitution or statute is a matter of state law and that the most authoritative construction is that made by the highest court of the state. O'Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974); Hardberger and Smylie v. Employers Mutual Liability Insurance Company of Wisconsin, 444 F.2d 1318 (10th Cir. 1971).

The Trial Court found that Mitchell had no protected interest in the office of Regent of the Museum of New Mexico by virtue of Art. V, Sec. 5 of the New Mexico Constitution as interpreted and construed by the Supreme Court of New Mexico in Ulrick v. Sanchez, supra.

The New Mexico...