Van Deelen v. Johnson

• Decision Date: 14 August 2007
• Docket Number: No. 06-3305.,06-3305.
• Citation: 497 F.3d 1151
• Parties: Michael D. VAN DEELEN, Plaintiff-Appellant, v. Marion JOHNSON; Steven Miles; Dale Flory; Kenneth Fangohr; Ken McGovern; and Board of County Commissioners of Douglas County, Kansas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

497 F.3d 1151

Michael D. VAN DEELEN, Plaintiff-Appellant, v. Marion JOHNSON; Steven Miles; Dale Flory; Kenneth Fangohr; Ken McGovern; and Board of County Commissioners of Douglas County, Kansas, Defendants-Appellees.

No. 06-3305.

United States Court of Appeals, Tenth Circuit.

August 14, 2007.

Michael D. Van Deelen, filed a brief pro se.

Nicholas P. Heinke of Hogan & Hartson, Denver, CO, for Plaintiff-Appellant.

Peter T. Maharry (Michael K. Seck and Daniel P. Goldberg on the brief), of Fisher, Patterson, Sayler & Smith, Overland Park, KS, for Defendants-Appellees.

Before HARTZ, McKAY, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Michael D. Van Deelen alleges that the Board of County Commissioners of Douglas County, Kansas, as well as five county officials, violated his First Amendment rights by seeking to threaten and intimidate him into dropping various tax assessment challenges. The United States District Court for the District of Kansas, in reliance on a number of its prior holdings, granted summary judgment for the defendants on the basis that Mr. Van Deelen's tax challenge was not a matter of "public concern." We write today to reaffirm that the constitutionally enumerated right of a private citizen to petition the government for the redress of grievances does not pick and choose its causes but extends to matters great and small, public and private. Whatever the public significance or merit of Mr. Van Deelen's petitions, they enjoy the protections of the First Amendment. Accordingly, we reverse and remand.

I

A

Viewing the facts pertinent to the current dispute, as we must, in the light most favorable to Mr. Van Deelen as the party opposing summary judgment,¹ his tangle with the County began in 1991. That year, Mr. Van Deelen purchased a home that, shortly after the transaction settled, suffered from repeated flooding. After a particularly severe episode in 1993, Mr. Van Deelen sued the County and the City of Eudora, in which the home is located, complaining that a nearby culvert was undersized and contributing to the flooding. The County and City eventually paid him a sum for his damages and replaced the culvert with a bridge; thereafter, Mr. Van Deelen dismissed his suit.

Beginning in 2000, Mr. Van Deelen believed that the County's annual increases in the assessed value of his home unfairly overstated his home's true market value, in part by inadequately accounting for what he perceived to be a continuing threat of flooding. During the next several years, he unsuccessfully appealed the County's assessments at approximately eight different administrative hearings. In the course of these appeals, Mr. Van Deelen interacted frequently with both Marion Johnson, the County Appraiser, and Steven Miles, an appraiser in Mr. Johnson's office. Bad blood soon set in.

In one 2002 hearing, Mr. Van Deelen allegedly made "accusatory" and "derogatory" remarks towards Mr. Miles that prompted the hearing officer to discontinue the proceedings. In spite of this incident, Mr. Miles agreed to meet again with Mr. Van Deelen the following week at the Appraiser's office, located in the old Douglas County Courthouse. Before that meeting, however, Mr. Miles expressed to Mr. Johnson his concern about Mr. Van Deelen's behavior; in turn, Mr. Johnson asked the Sheriff's Department to assign one of its deputies to be available outside the Appraiser's office during the meeting. As it indeed turned out, when Mr. Van Deelen and Mr. Miles met at the appointed time, Mr. Johnson, who was close by Mr. Miles's office, perceived the tone to grow increasingly loud and disruptive. Eventually, Mr. Johnson decided to interrupt and terminate the meeting, and did so with the assistance of Sergeant Kenneth Fangohr the member of the Sheriff's Department assigned to provide the requested security.

Mr. Van Deelen continued to dispute the County's tax assessments and, in February 2005, filed suit in federal court, naming as defendants Mr. Miles, Mr. Johnson, and the County, and alleging, among other things, unconstitutional property valuations and perjury by Mr. Miles in his testimony at administrative hearings. Not long after in March 2005, the County reduced by $5,000 the assessed value of Mr. Van Deelen's home, and Mr. Van Deelen dismissed the suit.²

But this was hardly the end of the matter. Mr. Van Deelen pursued yet another tax appeal with the Appraiser's office in late March 2005, even after the resolution of his federal lawsuit. A meeting was scheduled, and Mr. Johnson again requested that someone from the Sheriff's office attend; this time, however, he asked the Sheriff's representative to sit inside, not outside, the meeting room. Because Sergeant Fangohr was unavailable that day, the job went to Deputy Dale Flory. While defendants submit that the deputy was present simply to ensure that the meeting did not get out of control, Mr. Van Deelen alleges that the deputy's attendance was calculated to intimidate him in retaliation for his lawsuits and appeals and to deter him from bringing future appeals.

Indeed, Mr. Van Deelen alleges that, upon his arrival at the meeting, Mr. Miles stated that "[t]oday you get payback for suing us." Mr. Van Deelen further alleges that Deputy Flory pulled his chair right next to Mr. Van Deelen, deliberately "bumping" Mr. Van Deelen's arm and leg with his own in the process. Mr. Van Deelen asserts that the deputy's presence surprised and frightened him. When he asked why the deputy was there, Mr. Miles responded that Deputy Flory had come at the request of Mr. Johnson based upon plaintiff's prior behavior. Mr. Van Deelen alleges that Deputy Flory repeatedly and intentionally "bumped" him throughout the meeting, and that when Mr. Van Deelen looked up, Deputy Flory held his hand on his gun and made menacing looks. Mr. Van Deelen also alleges that Mr. Miles "brow beat" him throughout the meeting by scowling and staring. After "an exchange of words," including threats by Mr. Van Deelen to file another lawsuit, Mr. Miles ended the meeting. Mr. Van Deelen contends that Deputy Flory then stood up and told him to leave. During this exchange, Deputy Flory also allegedly poked Mr. Van Deelen's chest with his finger and stated: "Don't come back. Johnson and Miles are mad because you sued them. They told me to do whatever necessary to put a scare into you. If you show up for another tax appeal hearing, I might have to shoot you." Deputy Flory then told Mr. Van Deelen to leave immediately, not allowing him to collect his tax papers.

Mr. Van Deelen claims this episode has deterred him from his continued pursuit of tax appeals at the Appraiser's office.³ As evidence, he presents a letter he sent to the Kansas Board of Tax Appeals in November 2005, cancelling his requested hearing and citing the threat of violence by the County as the reason for doing so. Seeking compensation for his alleged injuries, as well as injunctive and declaratory relief, Mr. Van Deelen brought suit in federal district court against Mr. Johnson, Mr. Miles, Deputy Flory, Sergeant Fangohr, Sheriff Ken McGovern, and the County Board of Commissioners. Mr. Van Deelen's suit alleges various violations of the First and Fourteenth Amendments, actionable by means of 42 U.S.C. § 1983, as well as various violations of state tort law.

B

In due course, the district court entertained and granted defendants' motion for summary judgment with respect to all of Mr. Van Deelen's federal constitutional claims. With respect to his First Amendment claims, the district court held, inter alia, that Mr. Van Deelen's pursuit of legal and administrative remedies against the County relating to his tax assessments failed to qualify as protected constitutional conduct because it did not implicate matters of public concern and instead "aimed only at advancing [his] financial interest and achieving only redress for [his] private grievances." 2006 WL 1764381 at *5. The district court also disposed of Mr. Van Deelen's Fourteenth Amendment claims, finding a lack of evidence of any substantive or procedural due process violation and no basis for asserting a violation of equal protection; it similarly found no merit to Mr. Van Deelen's invasion of privacy and § 1983 conspiracy claims. Having thus extinguished his federal claims, the court dismissed without prejudice Mr. Van Deelen's remaining pendent state law claims pursuant to 28 U.S.C. § 1367(c).

Mr. Van Deelen filed a timely notice of appeal seeking reversal of the district court's disposition on all but two matters: he does not challenge the court's dismissal of the equal protection and invasion of privacy claims. Mr. Van Deelen further conceded at oral argument that his appeal on First Amendment grounds pertains only to Mr. Miles, Mr. Johnson, and Deputy Flory, and that he does not appeal the district court's conclusion that he lacks evidence of retaliatory conduct by Sergeant Fangohr or Sheriff McGovern. Our primary and initial focus in this case, thus, concerns Mr. Van Deelen's claim that Mr. Miles, Mr. Johnson, and Deputy Flory unlawfully retaliated against him for engaging in protected First Amendment petitioning activity.

II

The promise of self-government depends on the liberty of citizens to petition the government for the redress of their grievances. When public officials feel free to wield the powers of their office as weapons against those who question their decisions, they do damage not merely to the citizen in their sights but also to the First Amendment liberties and the promise of equal treatment essential to the continuity of our democratic enterprise. "The very idea of a government, republican in form, implies a right on the part of its citizens . . . to petition for a redress of grievances." United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588 (1875); see also United Mine Workers v. Ill. State Bar Ass'n, 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967) (The right to petition is ...