Defense Digest

It's Not What You Said, It's How You Said It:  The Third Circuit Addresses Municipal Exposure To First Amendment Retaliation Claims Brought By Citizens Outside The Employment Context

Among the things one learns from 20 years of defending civil law suits is that the courts never seem to close a door of opportunity for the plaintiffs' bar without opening a window somewhere else. To be fair, this is less a reflection on the courts than on the perspicacity of our learned adversaries, who, once convinced that the front door is locked and bolted, are clever enough to resort to a second-story window. Those of us who defend public officials, for instance, have witnessed at numerous turns the dexterity of those who profit from suing "city hall." Begging your pardon in advance, a temporary discourse on the ebb and flow since 1980 of popular theories of municipal liability in one of the jurisdictions we serve, Pennsylvania, may provide some context to my over-extended metaphor.

Judicial abrogation of common-law governmental immunity by the Pennsylvania Supreme Court prompted enactment of governmental immunity statutes by the state legislature in the early 1980s. Faced with statutory immunity defenses and damage caps, plaintiffs gradually discovered that state immunities could not be applied to claims brought under the Constitution and laws of the United States, and lawsuits brought under the federal civil rights acts became all the rage (and have remained popular ever since, due largely to the desire of Congress to allow "prevailing" plaintiffs to recover counsel fees from the public defendant). The popularity of state theories resurged in the early 1990s following a spate of Pennsylvania Supreme Court opinions which led some commentators to speculate that the Court might be inclined to dismantle governmental immunity again, one decision at a time. When that trend proved to be short-lived, ingenious plaintiffs' lawyers advanced the "state-created danger theory," which threatened to emasculate state immunity laws by making 14th Amendment substantive due process vehicles out of the spare parts of negligence claims.

Only recently, the federal appellate courts have virtually consigned the state-created danger theory to the dustbin by ruling that claims against government officials are not actionable under the substantive due process clause of the 14th Amendment absent conduct that "shocks the conscience." (See, e.g., United artists Theatre Circuit, Inc. v. Twp. Of Warrington, 316 F.3d 392 (3d Cir. 2003), argued by Attorney Arthur Lefco of our Philadelphia office.) With the 14th Amendment door slamming shut, experience braces us for the chill of a cold draft on the back of the neck. Sure enough, there is the First Amendment window jimmied wide open.

The free speech clause of the First Amendment already has become the weapon of choice in the hands of public employees suing to counteract terminations or workplace discipline, who cannot fit themselves comfortably between the margins of a "protected class." We commented on the increasing prevalence of this theory in these pages last June in Patricia Monahan's article, "The First Amendment's Rising Popularity in Municipal Employment Litigation," Defense Digest, Vol. 10, No. 2, p.6, June 2004. As it has adapted through the course of countless cases in the employment context, the cause of action is based upon the proposition that the employee was fired, suspended, reprimanded, and/or glanced at disapprovingly by the public employer out of a desire to "retaliate" against the employee for having exercised his or her right to free speech. Devising yet another "three-prong test," the federal courts have described the prima facie elements of a cause of action for First Amendment retaliation thusly:

Fortunately for public employers, the first two elements are deemed issues of law to be decided by the courts and capable of plenary review on appeal. The plaintiff who can get beyond these legal issues is favored with the opportunity to cast to a jury the ethereal issue of the employer's mind-set in choosing its course of action. Thus, the third element is the element of the plaintiff's attorney. It being impossible to prove affirmatively the absence of an improper motive, this element is the fodder of courtroom staging and closing argument rather than of evidence.

Remarkably, the First Amendment retaliation theory, so simple to plead on behalf of anyone who has ever criticized a local politician, has rarely, if ever, been litigated outside of the context of employment disputes. That is about to change.

In September 2004, the Third Circuit Court of Appeals filed its opinion in the case of Eichenlaub v. Township of Indiana, 385 F.3d 274 (3d Cir. 2004). This case involved a large number of claims based upon a litany of legal theories, the gravamen of which was that the defendant township had insisted that the plaintiffs adhere to certain land-use regulations in the course of developing two distinct parcels of land, which regulations the plaintiffs contended should not apply to their development projects. Despite having obtained approval of detailed development plans from the Township, the plaintiffs withdrew their plans and proceeded to commence development without the benefit of the grading permits required by the Township. Consequently, the plaintiffs were cited for violating the Township's grading ordinance. While the citation was on appeal, David Eichenlaub addressed the Township supervisors during the "citizens forum" portion of a public meeting, accusing Township officials of mismanagement and unequal enforcement of its land-use ordinances. The Mayor of the Township, who chaired the meeting, replied that Mr. Eichenlaub's complaints were directed to the issue of the grading ordinance citation and that the Township would not respond in the present forum, since the matter was in litigation. Eichenlaub continued to demand that the issue be debated publicly, and he refused to change the subject or yield the floor. After several warnings from the Mayor, Eichenlaub was escorted from the meeting by a policeman.

In their civil complaints, David Eichenlaub, his brother, and his sister-in-law sued the Township, its engineer, code enforcement officer, manager, and every member of the Board of Supervisors under the federal civil rights statutes, alleging that Township officials had conspired to deprive them of their right to develop their properties for reasons of personal malice, having nothing to do with legitimate goals of law enforcement. They claimed that the Township had violated their 14th Amendment rights to substantive due process and equal protection, as well as David Eichenlaub's First Amendment right to freedom of speech. Other counts were brought under an assortment of state law theories. After years of contentious discovery and motion practice, the District Court for the Western District of Pennsylvania granted the defense motion for summary judgment, dismissing the consolidated cases in their entirety and setting the stage for the Eichenlaub's appeal to the Third Circuit.

The Circuit Court had no trouble affirming the dismissal of the 14th Amendment substantive due process claim, agreeing that no jury could find the conduct of the Township officials to have been "shocking to the conscience:"

Hence, the appellate court affirmed dismissal of the substantive due process claim. The other 14th Amendment claim, brought under the equal protection clause, was remanded for further consideration, accompanied by dicta clearly stating the court's skepticism that it could survive another motion for summary judgment.

Unfortunately, the Township's 14th Amendment victory was a hollow one, because the Circuit Court concluded that the same conduct, if proved to have been motivated by a desire to retaliate for David Eichenlaub's public criticism of Township officials, would justify an award for the plaintiffs under their vaguely alleged theory of First Amendment retaliation. Seizing this hitherto rare opportunity to address a retaliation claim brought outside the context of a public employment relationship, the Eichenlaub panel held that local governments cannot validly punish a non-employee for his speech, regardless of whether the speech implicates matters of public importance or merely matters of private interest:

The Third Circuit opinion in Eichenlaub eliminates the first two prongs of the three-prong test of the validity of a constitutional retaliation claim where the plaintiff was not the employee of the governmental defendant. The case has now been remanded for a trial, which is scheduled to take place in February. Presumably, the retaliation claim will be decided on the basis of a single issue: in taking the actions which the Eichenlaubs find offensive, were Township officials substantially motivated by a desire to harm David Eichenlaub for his speech? The Township may raise the affirmative defense that it would have taken the same action, even absent any alleged retaliatory motive, but this is little more than an alternative approach to the same metaphysical issue.

Hence, the trial figures to become a latter-day Inquisition in which the jurors will attempt to peer into the hearts and minds of the defendant public officials to determine whether they deserve punishment - not for what they did, but for why they did it. Their actions did not offend the due process clause of the 14th Amendment, and the Third Circuit agreed that the manner of David Eichenlaub's speech justified them in forcing his removal from the public meeting. Yet, if a jury believes that those same actions were motivated by the content of that same speech, the Township officials could be looking for a way to pay compensatory and punitive damages.

The implication of this holding for future cases is ominous. Potential plaintiffs anticipating arrest, confiscation of property, denial of a permit, or any other form of adverse action on the part of local government would be well advised to slander their local government officials immediately. The genre is too new to have suffered the sort of abuse which prompts appellate courts to devise limitations to the cause of action. For now, at least, it appears that plaintiffs' civil rights lawyers have found a new window of opportunity.

*Scott is a shareholder in our Pittsburgh, PA office and can be reached at (412) 803-1144 or sdunlop@mdwcg.com.