North Mississippi Communications, Inc. v. Jones, 90-1601

Decision Date28 January 1992
Docket NumberNo. 90-1601,90-1601
Citation951 F.2d 652
Parties19 Media L. Rep. 1897 NORTH MISSISSIPPI COMMUNICATIONS, INC., and Pamela McPhail Ivy, Plaintiffs-Appellants, v. Douglas W. JONES, Defendant, Desoto County Board of Supervisor, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

David J. Cocke, C. William Denton, Borod & Kramer, Memphis, Tenn., for plaintiffs-appellants.

Robert J. Kelly, Ann H. Lamar, Hernando, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before BROWN, KING and GARWOOD, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This free-speech case comes before this court for the third time. It all started when the owners of the North Mississippi Times brought suit against the DeSoto County Board, alleging that, in violation of the First Amendment, the Board withheld county advertising in retaliation for the Times' publication of negative stories about the Board. Because of this court's actions on earlier appeals, the sole issue now before this court is whether the district court properly applied Mt. Healthy's 1 burden-shifting analysis to the Times § 1983 claim. 2 We conclude that it did not. We reverse in favor of the Times and remand for further findings.

Because the long series of events leading up to this dispute have been thoroughly examined in this court's two earlier opinions, we see no need to recite them in detail yet another time. 3 Briefly, the Times is a weekly newspaper in DeSoto County, owned by North Mississippi Communications, Inc. The DeSoto County Board was responsible for awarding by bid the county's general legal advertising, which consisted of county board proceedings and legal notices. The advertising had gone largely to the Times before 1976. In 1976, both the Times and the Olive Branch Tribune, another much smaller, weekly county newspaper, bid for the right to publish county advertising. For the first time, the Board required the newspapers to submit their circulation lists for review. Although the Times won the bid for publication of the Board proceedings, the Board determined that it would place legal notices in either paper at its discretion. 4

The district court found that in 1976, the Times and Tribune received approximately the same number of legal notices. From mid-1977 forward, however, the evidence at trial clearly showed that the Board opted to give almost all its legal notice business to the Tribune. In 1977, the Times received 41 notices through June 30 and none thereafter; and the Tribune received 73 during the first half of 1977 and 113 in the second half. In 1978, the Times received only 14 legal notices, while the Tribune received 291.

It is undisputed that from 1975 forward, the Times published highly critical articles and letters about the Board's questionable activities. The Times claimed that the Board withheld county advertising in retaliation for the Board's negative publications in violation of the Times' First Amendment rights. Admittedly, the Board's placement of legal notices was discretionary. The Times, however, did not assert breach of contract, but instead a § 1983 constitutional violation. Indeed, the district court

wholeheartedly agreed with the premise that if the Board withheld legal notice business in retaliation for the Times' publication of critical articles, the Board has violated the Times' civil rights under the First Amendment.

Round I: NMCI I

With respect to the Times' § 1983 claim, the district court found only that the Board's withholding of county legal advertisements did not threaten to put the Times out of business. On appeal, we held that this finding did not dispatch the Times' § 1983 claim and remanded this claim to the district court for further findings. Specifically, in NMCI I, we directed that the district court determine whether the Board denied some or all of its legal advertising to the Times in retaliation for the Times' critical news stories and editorials. 5 The court, without a jury, conducted a "second trial" 6 and again found in favor of the Board, concluding that "even though a prima facie case of a constitutional violation was presented in the plaintiff's case in chief, the rebuttal evidence of the Board was just as persuasive that other legitimate reasons existed for favoring the Tribune over the Times." 7 The court ultimately held: "There is a possibility that the Board wished to retaliate against the Times for its editorial positions ... however, the court cannot say that the evidence preponderates toward that finding. The other reasons for favoring the Tribune heretofore described appear just as probable." 8

If At First You Don't Succeed; Try, Try Again: NMCI II

The Times again appealed, claiming that the failure to apply the Mt. Healthy burden-shifting analysis to their § 1983 claim constituted reversible error. Because this claim involved a purely legal question, we justifiably considered it in NMCI II, even though the Times had raised it for the first time on its second appeal. 9

Mt. Healthy involved the alleged refusal to re-employ a public school teacher because of the teacher's exercise of his free-speech rights. This case gave birth to the two-step burden-shifting rule, which has now become standard fare in discrimination cases. The Supreme Court held that (i) the plaintiff must first show that his constitutionally protected conduct was a substantial or motivating factor in the defendant's decision; and (ii) if the plaintiff carries this burden, the burden shifts to the defendant to prove by a preponderance of the evidence that it would have made the same decision even in the absence of the protected conduct.

We are keenly aware that Mt. Healthy has never before been applied to a set of facts involving the denial of public patronage. Nevertheless, this court in NMCI II saw no reason why Mt. Healthy should not be applied in this context and remanded this case to the district court for the second time for further findings as required by Mt. Healthy. We reject the district court's assessment that the application is a strained one. To the contrary, Mt. Healthy's rule is broad enough potentially to lend itself to a wide variety of fact patterns.

NMCI III

Upon remand, the district court, conscientiously, but reluctantly, heeding our mandate to apply the Mt. Healthy burden-shifting analysis, again held for the Board, asserting reasons why Mt. Healthy could not work here. 10 Without hearing any additional evidence, the court first held that the Times did not meet its burden under prong one of Mt. Healthy. Second, even assuming the Times satisfied Mt. Healthy's first prong, the court concluded that reasons other than retaliation motivated the Board to switch its advertising from the Times to the Tribune. We hold that the district court erred on both counts.

a. Mt. Healthy's First Prong

The district court found that the Times, under the first prong of Mt. Healthy, failed to show that retaliation was a motivating factor in the Board's denial of county business:

[T]he placing of patronage business by the Board between two newspapers in the county was possibly a mixed motive act; however, the plaintiff has not proven by credible and probative evidence as it is required to do that the placing of some ads with the Tribune was the result of the Times' criticisms of the Board. 11

Because this court in NMCI II previously determined that the Times' sufficiently proved that retaliation was a motivating factor, the district court's finding clearly disregards our previous mandate and thus violates the law of the case doctrine.

In NMCI II, our primary concern was whether the application of the Mt. Healthy burden-shifting analysis was appropriate for this case. Although we recognized in NMCI II that the district court did not expressly find that the Times had proved retaliation was a motivating factor, 12 we also highlighted the fact that the lower court failed to find that retaliation was not a factor in the Board's decision. 13 Despite the absence of this finding by the district court, we nevertheless, in light of the evidence presented on timing, hostility and admissions relating to motivation for the Board's conduct, 14 went on to hold that any other conclusion would be clearly erroneous. We decided that the record evidence established the motivating factor inquiry; without this, there would be no occasion for us to remand in order to consider Mt. Healthy.

This court's ultimate NMCI II decision to remand to apply Mt. Healthy to this case necessarily carried with it the determination that, at the very least, this was a mixed-motives case and that the Times had satisfied its burden under prong one of Mt. Healthy. In other words, if we had not first found that the Times adequately proved that retaliation was a motivating factor, this court would have never instructed the lower court to apply Mt. Healthy.

The law of the case doctrine dictates that a prior decision of this court will be followed without re-examination, both on the remand to the district court and on subsequent appeals to this court, 15 unless (i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work manifest injustice. 16 Because of our previous holding in NMCI II, the district court's subsequent contrary finding violates the law of the case doctrine. None of the exceptions to the rule afford relief: (i) new or different evidence was not introduced, since the district court did not conduct a third trial; (ii) the Board has not cited, nor are we otherwise aware of, any decisions by other courts rejecting Mt. Healthy since our mandate in NMCI II; and (iii) the Board has not sufficiently convinced us that our prior decision results in manifest injustice. We therefore hold that the...

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