Adjunct Law Prof Blog

Third Circuit Reverses Contempt Conviction Against Trial Judge

An interesting Third Circuit case from earlier this month raises the question whether a lower court judge can be held in contempt for openly criticizing a higher court for reversing him in a pending case.  The case is In re: Kendall, No. 11-4471 (3d Cir. April 3, 2013). 

The contempt holding arises from proceedings in a murder prosecution.  The case's procedural history is long, convoluted and filled with hints and allegations suggesting misrepresentations and misconduct far and wide.  Of particular relevance, after some back and forth in plea negotiations between the prosecutor and the defense, the trial judge ordered the prosecutor, against the prosecutor's wishes, to follow through on an oral plea offer allowing the defendants to plead guilty to involuntary manslaughter, a lesser charge to murder. 

To this the prosecutor objected by filing an application for writ of mandamus to the Virgin Islands Supreme Court.  The high court granted granted that application on grounds that the government generally may unilaterally withdraw a plea offer, as the prosecutor had done in this case, and that any exception to that general rule did not apply.

The writ of mandamus, however, turned out not to be the end to the matter.  Upon return to the trial court, the prosecution and defense made a plea agreement for the defendants to plead guilty to voluntary manslaughter, still a lesser charge, but a more serious one than involuntary manslaughter.  The trial judge, after receiving the prosecutor's proffer supporting the plea, rejected that plea bargain and memorialized that rejection in a 31-page opinion that, among other things, characterized the Supreme Court's reasoning in issuing the mandamus as "erroneous, 'improper,' having 'no rational basis,' lacking 'merit,' and 'making no sense."  The judge went on to add the opinion was 'contrary to law and all notions of justice."  The judge then recused himself for a number of reasons.  Ultimately, one co-defendant died before trial; the other was acquitted by a jury.

Back to the story - the Virgin Island Supreme Court, after getting wind of the 31-page opinion, charged Judge Kendall with crimnial contempt, three counts.  The counts were:

1. Obstructing the administration of justice by issuing the 31-page opinion critical of the Justices' writ of mandamus;
2. Failing to comply with the writ of mandamus by refusing to schedule the case for trial, refusing to consider a change of venue or continuance to minimize pretrial publicity, and recusing himself to avoid complying with the writ of mandamus, and
3. Misbehaving in his official transactions as an officer of the court by issuing the 31-page opinion and disobeying the writ of mandamus.

The Virgin Islands Supreme Court appointed a Special Master to preside at Judge Kendall's trial.  The Special Master recommended Judge Kendall be acquitted on all counts.  The Virgin Islands Supreme Court, however, rejected those recommendations and found Judge Kendall guilty on all counts.

Judge Kendall's appeal to the Third Circuit followed.

The Third Circuit agreed that Judge Kendall's comments in the 31-page opinion were speech protected by the First Amendment.  In fact, the Court held that because Judge Kendall's comments were "pure speech on public issues," the opinion held, "'the highest rung of the hierarchy of First Amendment values," and is thus 'entitled to special protection.'"  Such speech, the Court held, is entitled to protection from criminal punishment unless the speech, "poses a clear and present danger to the administration of justice."

Whether it is good practice for a lower court judge to be openly and caustically critical of a higher court remains an open question, perhaps, but the Third Circuit here resolves that such speech, was lacking decorum, remains First Amendment protected, except in likely rare cases where the speech "poses a clear and present danger to the administration of justice."  Kendall certainly is an interesting case and a recommended read.

Craig Estlinbaum

Charleston Law Review: "Thirty Years with the Endorsement Test"

Charleston Law Review is hosting a symposium on April 15, 2013, titled "In Search of A 'Grand Unified Theory': Thirty Years with the Endorsement Test."  Scheduled speakers include The Honorable Sandra Day O'Connor, Associate Justice of the United States Supreme Court (ret.), who is slated to deliver the keynote address.  For more, including a conference agenda and registration information, click here.

Craig Estlinbaum

Fired Principal Lacks First Amendment Claim for Unprotected Speech

An Illinois middle school principal discharged after charging her predecessor and immediate supervisor with misusing public funds lacks a First Amendment retaliation claim because she spoke as an employee on matters related to her job rather than as a citizen on matters of public concern, as per the 7th Circuit's ruling on Jan. 31, 2013. ruled ( McArdle v. Peoria Sch. Dist. No. 150, 7th Cir., No. 11-2437, 1/31/13 ).

This case demonstrates how narrow First Amendment protections for public employees has become.

Mitchell H. Rubinstein

Holding Graduation In Church Violates First Amendment

Doe v. Elmbrook Sch. Dist., No. 10-2922 (7th Cir. July 23, 2012) (en banc). The Seventh Circuit held that a Wisconsin school district violated students’ rights under the Establishment Clause when it held graduation ceremonies for two of its high schools at a local Christian church.

After analyzing the facts under the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), and the endorsement and coercion tests, the majority concluded that the sheer religiosity of the church ran afoul of the “primary effect” prong of Lemon, in that it created a likelihood that high school students would perceive a link between church and state, conveying a message of religious endorsement. The majority stressed that its ruling was of limited scope, and should not be read as constitutionally condemning any government use of church-owned facilities, nor “as critical of the cases permitting governmental use, in the proper context, of certain church-owned facilities.” The decision also contains a concurring and three dissenting opinions.

Oregon federal magistrate recommends that First Amendment free speech claim based on bus driver’s termination for Confederate flag display should proceed to trial

Webber v. First Student, Inc., No. 11-3032 (Aug. 2, 2012), is an interesting case. An Oregon  U.S. Magistrate Judge has recommended that the district court should deny the motions for summary judgment filed by a school district and private contractor, and that a school bus driver should be allowed to proceed to trial with his Section 1983 First Amendment claim regarding his suspension and termination for refusing to remove a Confederate flag from display on his vehicle while parked at work. The magistrate stated there was a sufficient factual dispute that: (1) the bus driver’s employer, a private contractor, acted under color of state law under either the “compulsion” or “joint action” test; and (2) the bus driver’s free speech rights were violated under the five-part test established in Pickering v. Board of Education, 391 U.S. 563 (1968), when he was disciplined and later discharged.

Mitchell H. Rubinstein

Fifth Circuit Upholds Texas Open Meetings Act

The Fifth Circuit Court of Appeals Tuesday issues a 3-0 decision upholding the Texas Open Meetings Act (TOMA) over a First Amendment free speech challenge.  The case is Asgeirsson v. Texas Attorney General, No. 11-50441 (5th Cir. Sep. 25, 2012).

TOMA provides that most government meetings be open to the public, and provides that violations are punishable by a $500 fine and up to six months in county jail.  Asgeirsson and other municipal officials challenged this penalty as violating free speech.   The appellate panel rejected the argument, finding the prohibitions against private meetings to be a permissible, content-neutral time, place or manner restriction.  The court also rejected claims that the TOMA public meeting requirement is unconstitutionally overbroad or vague. 

More at Grits For Breakfast and Dallas Morning News Investigates Blog.

Craig Estlinbaum

2d Circuit Narrowly Construes First Amendment

Kiehle v. County of Courtland, ____F.3d____(2d Cir. July 2, 2012), Download Kiehle (2) is an important case and I am amazed that the court chose not to offically publish the decision. In this case, the Second Circuit affirmed the dismissal of a case where a Department of Social Services social worker was--by the employer's admission--fired for truthfully testifying in family court. The court reasoned that this was part of his job even though he was not testifying at the request of his employer. In fact, his testimony was opposite of the employer's position.  I understand that the attorney handling is petitioning for reargument/en banc consideration.  This is just another example how Garcetti has all but gutted First Amendment protections.

Mitchell H. Rubinstein

Arizona: Tattoo Artists Enjoy Free Speech Protections

In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution.  The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).

Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor.  The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use.  The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test.  The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.

The Arizona Court considered three approaches to the issue:  (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis.  Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.

Craig Estlinbaum

Madonna Faces Public Insult Lawsuit in France

From The Guardian (links added):

A recent concert in Paris has proven to have fallout for Madonna who is expected to be sued by France's Front National party for screening a video with an image of right wing politician Marine Le Pen with a swastika superimposed on her face.

The public insult cause of action in France made news recently when a French court convicted a government minister of the offense in May, fining him five euros for referring to ferry operators as crooks.

Le Pen had warned Madonna against using the image in France prior to the show, so Madonna likely made a calculated risk at her show in Paris last Saturday when she defied the warning.  The story, however, is another reminder that rights Americans take for granted, like the right to free speech, generally extend only as far as our borders.

Craig Estlinbaum

 

6th Issues Interesting 1983 Case On Qualified Immunity

Baar v. Jefferson Cnty. Bd. of Educ., _____F.3d____ (6th Cir. Mar. 7, 2012), is an interesting case. The Sixth Circuit held that school officials who prohibited a teacher from attending meetings of a local club were entitled to qualified immunity from his suit alleging that their actions violated his First Amendment rights. The panel concluded that even though the prohibition imposed on the teacher violated his First Amendment rights, those rights were not clearly established at the time school officials decided to impose the ban.

Mitchell H. Rubinstein

5th Circuit again determines school board members not entitled to immunity from employee retaliation claim

Juarez v. Anguilar, ____F.3d____ (5th Cir. December 22, 2011), is an interesting case. The school board members, all named defendants in a retaliation suit brought by the school district’s former chief financial officer (CFO), argue that the district court should have granted them summary judgment, as they are entitled to qualified immunity.

As it had determined in the previous decision in September 2011, the panel ruled that precedent from the Fifth Circuit as well as the Supreme Court clearly indicate that a school board’s informal actions can result in liability. This precedent was sufficient to provide the board members with fair notice that even an informal decision to retaliate against the former CFO would violate his First Amendment rights.  Accordingly, found the panel, the district court did not err when it denied summary judgment on the board members; qualified immunity defense.

Mitchell H. Rubinstein

 

Federal district court grants preliminary injunction ordering Missouri district to halt Internet-filter system blocking websites with positive LGBT messages

Parents, Families, and Friends of Lesbians and Gays, Inc. v. Camdenton R-III Sch. Dist., ___F. Supp.2d___(W.D. Mo. Feb. 15, 2012), is an interesting case First Amendment case. A federal lower court in Missouri granted a preliminary injunction to a group of organizations whose websites provide resources for lesbian, gay, bisexual and transgender (LGBT) youth. Specifically, the court ordered that the school district disable its internet-filter system that blocked the groups’ websites. The court concluded that the current internet filtering system constitutes viewpoint discrimination. 

Mitchell H. Rubinstein

9th holds that School Did Not Violate Teacher’s Rights By Ordering Removal Of Classroom Religious Banners

Johnson v. Poway Unified Sch. Dist., No. 10-55445 (9th Cir. Sept. 13, 2011), is an interesting case. The 9th Circuit held that a California school district did not violate a high school teacher’s free speech or equal protection rights when the school’s principal ordered the teacher to remove banners displayed in his classroom that contained religious references. In regard to the free speech claim, it concluded that the lower court had erred by applying forum analysis. The panel found that the speech issue should be analyzed in accordance with the multi-prong test established by Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968) and its progeny.

Mitchell H. Rubinstein

Missouri court issues preliminary injunction barring state from enforcing new teacher social networking law

Missouri State Teachers Ass’n v. State of Missouri, No. 11AC-C00553 (Cir. Ct. Mo. Aug. 24, 2010) is a very interesting state court decision out of Missouri. A Cole County Circuit Court has issued a preliminary injunction prohibiting the State of Missouri from enforcing that portion of § 162.069.4 RSMo., which states: “No teacher shall establish, maintain, or use a non-work-related internet site which allows exclusive access with a current or former student.” Finding that the breadth of the law’s coverage is “staggering”  and that social networking is utilized extensively by educators, the court concluded that the law would have a chilling effect on speech.  It also concluded, given the fundamental right implicated, that the “chilling effect” would be sufficiently immediate and irreparable to support the injunction.

This would have been an important decision to watch. Frankly, I am surprised it has not attracted more media attention. However, the matter has been resolved by the legislature. (See above post). 

Mitchell H. Rubinstein

 

7th holds Federal appellate court holds school district did not violate Establishment Clause by conducting graduation ceremonies at local church

Doe v. Elmbrook Sch. Dist., No. 10-2922 (7th Cir. Sept. 9, 2011), is an interesting case. In a 2-1 split, the Seventh Circuit held that a school district did not violate the Establishment Clause when it held graduation ceremonies at a local Christian church.  Although the district court had relied on the coercion test and the primary effect prong of the the test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971), the majority determined that the coercion test was not an appropriate analysis here because the challenged activity is not a religious exercise. Instead, it analyzed the school district’s actions under the Lemon test.

Mitchell H. Rubinstein

 

School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

 

Kowalski v. Berkeley County Schools, United States Court of Appeals, Fourth Circuit, Docket #10-1098

A student sued West Virginia’s Berkeley County School District contending that it had violated her Constitutional right to free speech when it suspended her for creating a MySpace page ridiculing a fellow student. A federal District Court judge granted the school district’s motion for summary judgment, which ruling was affirmed by the Fourth Circuit U.S. Circuit Court of Appeals.

In this 42 USC 1983 action the court found that the student’s after-school “conduct was sufficiently connected to the school environment so as to implicate the [district’s] recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others.”

The full text of the decision is posted on the Internet at:

http://caselaw.findlaw.com/us-4th-circuit/1575495.html

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

 

Federal district court concludes former principal was not speaking as private citizen when she reported predecessor’s financial and administrative irregularities

McArdle v. Peoria Sch. Dist. No. 150, ___F. Supp. 2d____ (C.D. Ill. Jun.7, 2010), is an interesting case. A federal district court granted a school district summary judgment on a former principal’s claim that she was terminated in retaliation for exercising her First Amendment rights. The court concluded that the principal’s speech was not protected by the First Amendment because she spoke pursuant to her official duties.

The district court also ruled that even if the principal had spoken as a private citizen, her speech was not entitled to First Amendment protection because it was not on a matter of public concern, but rather involved a personal grievance. 

I bring this case to your attention because it reviews standard First Amendment principles.

Mitchell H. Rubinstein

 

Bus Driver Fired For Displaying Confederate Flag Looses Case

Webber v. First Student, Inc.,____F. Supp. 2d_____(D. Or. Jul. 12, 2011), is an interesting case that attracted media attention.  A federal district court magistrate in Oregon held that a bus driver who was employed by a private contractor that provides transportation services for a school district failed to state a valid retaliation claim under the federal constitution’s Equal Protection Clause based his discharge after refusing to remove to a Confederate flag from display on his personal vehicle while parked in the contractor’s lot. 

The magistrate also recommended that the former employee’s claim based on the state constitution’s equal protection clause be dismissed with prejudice. Significantly, however, he held that the driver’s retaliation claim based on the state constitution’s free speech provision was valid and granted leave to amend. Interestingly, plaintiff did not plead a First Amendment claim under the First Amendment, probably because it may not pass the public concern standard. A media clip about this case is available below.

   

 

2d Circuit Issues Important Student First Amendment Decision

Ro v. Ithaca City School District, ____F.3d____ (2d Cir. May 18, 2011), is an interesting case. In a well written decision, the Second Circuit holds that a school district did not violate the First Amendment rights of students by its prohibition of a sexually explicit cartoon from appearing in a school newspaper. Under Bethel v. Fraser, 478 U.S. 675 (1986), the 2d reasoned that school districts have wide discretion to restrict lewd, indecent or offensive speech.

Mitchell H. Rubinstein 

School bus driver suspended over display of Confederate flag on personal vehicle

Reportedly, a school bus driver in Oregon has been suspended after refusing to remove a Confederate flag from the antenna of his personal vehicle. The employee, who is employed by First Student Inc., which contracts buses for the Phoenix-Talent School District, had been driving the kindergarten bus. When the Superintendent saw the flag on the employee's truck parked at the school bus yard, he told the employee's supervisor that the flag had to go, or tha the employee had to go. The school district owns the bus yard and leases it to First Student.

Source: KOMO 4 News, 3/3/11, By Jeff Barnard (AP)