F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 19 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ELIZABETH PHELAN,
Plaintiff - Appellant,
v. No. 99-8095
LARAMIE COUNTY COMMUNITY
COLLEGE BOARD OF TRUSTEES;
CHARLES BOHLEN; CHERYL W.
PORTER; JOHN R. KAISER; LARRY
ATWELL; DONALD J. BROWN;
TOM E. BAUMAN; JEAN
VONDRAK BROWN, in their
individual capacity,
Defendants - Appellees.
--------------------------------
ASSOCIATION OF COMMUNITY
COLLEGE TRUSTEES,
Amicus Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D. Ct. No. 99-CV-52-J)
Bernard Q. Phelan, Phelan-Watson Law Offices, Cheyenne, Wyoming, for
Plaintiff-Appellant.
Henry F. Bailey, Jr. (Wallace L. Stock, with him on the brief), Bailey & Stock,
Cheyenne, Wyoming, for Defendants-Appellees.
Ira M. Shepard, Paul M. Heylman, and Trina L. Fairley, Schmeltzer, Aptaker &
Shepard, P.C., Washington, DC; John A. Coppede and Michelle Pinkowski,
Rothgerber, Johnson & Lyons, LLP, Cheyenne, Wyoming, filed an Amicus Curiae
brief on behalf of the Association of Community College Trustees.
Before SEYMOUR, Chief Judge, TACHA, and EBEL, Circuit Judges.
TACHA, Circuit Judge.
Plaintiff Elizabeth Phelan appeals the district court’s grant of Defendant’s
motion for summary judgment. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 and affirm.
I. Background
Plaintiff Elizabeth Phelan has served as a member of the Board of Trustees
for Laramie County Community College (“Board”) since the college opened in
1968. Claiming a violation of her First Amendment rights, Ms. Phelan sued the
Board and each Board member in their individual capacities under 42 U.S.C.
§ 1983. She sought injunctive and declaratory relief in the district court, arguing
the Board abridged her First Amendment rights by censuring her for violating its
ethics policy .
In 1980, the Board adopted Policy 1530, its code of ethics. Ms. Phelan
voted for the policy in 1980, and again in 1985 and 1994. The code describes the
manner in which Board members agree to discharge their duties and
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responsibilities. The provision at issue provides: “[I will] base my personal
decision upon all available facts in each situation; to vote my honest conviction in
every case, unswayed by partisan bias of any kind; thereafter to abide by and
uphold the final majority decision of the Board.” (emphasis added). In addition
to adopting the ethics policy, Ms. Phelan also signed a general oath each time she
was elected, pledging to discharge her duties as trustee “faithfully, honestly, and
impartially.”
In August 1998, the Board began discussing how to fund the repair and
renovation of main campus facilities. Specifically, the Board explored two
approaches to funding the campus renewal plan: a five mill property tax
assessment or general obligation bonds. The Board discussed the issues
concerning the funding options at an open meeting on August 13, 1998, and again
on August 19, 1998, at a published Board meeting during which the Board voted
on the renewal plan and appropriate funding. All members of the Board,
including Ms. Phelan, voted in favor of the renewal plan and to present the five
mill tax assessment to the public for popular vote.
Despite her vote in favor of submitting the five mill tax assessment to the
public, Ms. Phelan placed an advertisement in the local newspaper encouraging
the public to vote against the measure. The advertisement ran on November 2,
1998, the day before the public vote. Identifying Ms. Phelan in her role as
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“Trustee,” the advertisement supported the election of Richard “Dick” Lennox for
trustee, declared college enrollment had declined fifteen percent, and urged voters
to vote against the five mill tax assessment. Although the tax assessment passed,
it did so by a much narrower margin than Board members expected.
On December 16, 1998, the Board voted to censure Ms. Phelan for
violating its ethics policy. In censuring Ms. Phelan, the Board expressed its
belief that her conduct in running the newspaper advertisement was contrary to
the ethics policy and potentially detrimental to the college. The censure also
asked her to discontinue this “inappropriate” behavior. The Board based its
censure on the language in the ethics policy that requires trustees “to abide by and
uphold the final majority decision of the Board,” concluding Ms. Phelan’s
advertisement sought to undermine the final majority decision of the Board and
provided false information to the public by stating enrollment had dropped fifteen
percent.
Ms. Phelan later filed a § 1983 suit in federal district court, claiming that
the Board’s formal censure punished her by tarnishing her public reputation in
violation of her free speech rights under the First and Fourteenth Amendments of
the United States Constitution. She also sued Charles Bohlen, the college
president, asserting he is subject to liability under § 1983 because he conspired
with the Board to deprive her of her constitutional rights. The district court
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granted the Board’s motion for summary judgment. We affirm the district court’s
result, although we do so based on a different rationale. United States v.
Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (“We are free to affirm a district
court decision on any grounds for which there is a record sufficient to permit
conclusions of law . . . .”). We construe the complaint as a challenge to the ethics
policy as applied (in censuring Ms. Phelan), and we hold the ethics policy does
not violate the First Amendment because it did not penalize Ms. Phelan for
exercise of her free speech rights.
II. Standard of Review
We review a district court’s grant of summary judgment de novo. Simms v.
Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321,
1326 (10th Cir. 1999). Under Federal Rule of Civil Procedure 56(c), summary
judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Ms. Phelan concedes, however, that no genuine
issues of material fact are in dispute. When no genuine issue of material fact is in
dispute, “we determine whether the district court correctly applied the substantive
law.” Simms, 165 F.3d at 1326.
When First Amendment issues are raised, our review is also de novo. Lytle
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v. City of Haysville, 138 F.3d 857, 862 (10th Cir. 1998) (quoting Rankin v.
McPherson, 483 U.S. 378, 386 n.9 (1987)). When the First Amendment arguably
protects the activity in question, “‘an appellate court has an obligation to make an
independent examination of the whole record in order to make sure that the
judgment does not constitute a forbidden intrusion on the field of free
expression.’” Id.
III. Discussion
The Board contends, and the district court agreed, that we should use the
balancing approach established in Pickering v. Board of Education, 391 U.S. 563,
568 (1968), to analyze Ms. Phelan’s free speech rights. The Pickering approach
balances a public employee’s interest “in commenting upon matters of public
concern” with the government’s interest in “promoting the efficiency of the public
services it performs through its employees.” Id.; see also Connick v. Myers, 461
U.S. 138, 147-49 (1983) (creating clear two-step test); McEvoy v. Shoemaker,
882 F.2d 463, 466 (10th Cir. 1989) (defining matter of “public concern”). The
Supreme Court has also applied the Pickering approach in the context of
governmental contractors, concluding the government’s relationship with
contractors is similar to its relationship with employees because the government
exercises contractual power and functions as a public service provider in both
contexts. Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 678 (1996).
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The Pickering line of cases does not, however, apply to facts like those in
the case we consider today. Ms. Phelan is not a governmental employee or
contractor; indeed, the Board members and Ms. Phelan occupy the same positions
as elected public officials. Furthermore, this case does not involve the
government’s exercise of contractual power or its “daily management functions,”
factors which form the underlying factual basis for judicial deference and the
application of the Pickering approach in the governmental employee and
contractor contexts. Id.
Although we hold the Pickering approach does not apply, we need not
apply an alternative approach to determine whether the Board has violated Ms.
Phelan’s First Amendment rights because the Board’s censure does not trigger
First Amendment scrutiny. 1 In order for governmental action to trigger First
Amendment scrutiny, it must carry consequences that infringe protected speech. 2
U.S. West, Inc. v. FCC, 182 F.3d 1224, 1232 (10th Cir. 1999) (“As a threshold
1
Ms. Phelan alleges that the Board’s censure tarnished her public
reputation. Although this alleged harm to her reputation is sufficient to establish
standing, Meese v. Keene, 481 U.S. 465, 472-77 (1987), it is not enough to
establish an abridgement of her free speech rights.
2
Because political speech is entitled to the “broadest protection,” Ms.
Phelan’s speech is clearly protected. See Buckley v. Valeo, 424 U.S. 1, 14
(1976); see also Bullock v. Carter, 405 U.S. 134, 142-43 (1972) (noting that
speech of political candidates affects rights of both candidates and voters); U.S.
West, Inc., 182 F.3d at 1232 (acknowledging “speech has two components: a
speaker and an audience.”).
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requirement for the application of the First Amendment, the government action
must abridge or restrict protected speech.”). The Board’s censure does not satisfy
this threshold requirement. We therefore hold the Board’s censure does not
infringe any of Ms. Phelan’s free speech rights because it did not punish her for
exercising these rights. Nor does it deter her future speech.
Although the government may not restrict, or infringe, an individual’s free
speech rights, it may interject its own voice into public discourse. See Meese v.
Keene, 481 U.S. 465, 480-82 (1987) (stating governmental classification of
certain films as “political propaganda” was information to which public was
entitled and did not infringe free speech rights of individuals who wished to show
the films); Zilich v. Longo, 34 F.3d 359, 363-64 (6th Cir. 1994) (holding city
council resolution expressing disapproval of a former council member does not
violate the First Amendment). The crucial question is whether, in speaking, the
government is compelling others to espouse or to suppress certain ideas and
beliefs. Wooley v. Maynard, 430 U.S. 705, 714-15 (1977) (striking down state
statute compelling individuals to display state motto on license plates); W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding compulsory
flag salute and pledge by public school children unconstitutional). In order to
compel the exercise or suppression of speech, the governmental measure must
punish, or threaten to punish, protected speech by governmental action that is
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“regulatory, proscriptive, or compulsory in nature.” Laird v. Tatum, 408 U.S. 1,
11 (1972). The consequence may be an “indirect discouragement,” rather than a
direct punishment, such as “imprisonment, fines, injunctions or taxes.” Am.
Communications Ass’n. v. Douds, 339 U.S. 382, 402 (1950). A discouragement
that is “minimal” and “wholly subjective” does not, however, impermissibly deter
the exercise of free speech rights. United States v. Ramsey, 431 U.S. 606, 623-24
(1977); see also Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 30
(1986) (Rehnquist, J. dissenting) (“When the potential deterrent effect of a
particular state law is remote and speculative, the law simply is not subject to
heightened scrutiny.”).
Thus, the Supreme Court has held that, although the governmental action
may “fall short of a direct prohibition,” it must impose a specific collateral injury.
Laird, 408 U.S. at 11 (citing example cases). Unlike the Board in the case we
decide today, the government in the cases discussed by the Court wielded
compulsory power that clearly abridged free speech rights. Id. Examples of
governmentally imposed injuries include: denial of state bar admission, e.g.,
Baird v. State Bar, 401 U.S. 1, 5 (1971); loss of employment, e.g., Keyishian v.
Bd. of Regents, 385 U.S. 589, 592 (1967); and the conditioning of employment on
a vague oath, e.g., Baggett v. Bullitt, 377 U.S. 360, 361 (1964).
Based on the facts of this case, the Board’s censure is clearly not a penalty
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that infringes Ms. Phelan’s free speech rights. In censuring Ms. Phelan, Board
members sought only to voice their opinion that she violated the ethics policy and
to ask that she not engage in similar conduct in the future. Their statement
carried no penalties; it did not prevent her from performing her official duties or
restrict her opportunities to speak, such as her right to vote as a Board member,
her ability to speak before the Board, or her ability to speak to the public. See
Zilich, 34 F.3d at 364 (holding city council resolution did not violate First
Amendment because it was not law and contained no penalty); see also Peeper v.
Callaway County Ambulance Dist., 122 F.3d 619, 623 n.4 (8th Cir. 1997)
(recognizing that “[l]imitations on an elected official’s participation in the
proceedings of a public body . . . affect the official’s First Amendment free
speech rights”).
In short, the Board’s actions have not injured Ms. Phelan’s free speech
rights. See Laird, 408 U.S. at 12-13 (noting the requirement that an individual
demonstrate injury in order to challenge executive or legislative action). Ms.
Phelan argues she has been injured because the Board’s actions tarnished her
reputation. In the First Amendment context, however, injury to one’s reputation
is not enough to defeat constitutional interests in furthering “uninhibited, robust”
debate on public issues. New York Times Co. v. Sullivan, 376 U.S. 254, 270,
279-80 (1964) (holding public official may recover in state libel action only when
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the alleged libelous statement is false and when statement is made with malice).
The Board simply made a statement about Ms. Phelan’s failure to follow an ethics
policy that she voted for on at least three occasions. She remained free to express
her views publicly and to criticize the ethics policy and the Board’s censure. See
Meese, 481 U.S. at 480-81 (noting that disseminators of material labeled as
“propaganda” by Congress could “add any further information they think germane
to the public’s viewing of the materials”). In fact, Ms. Phelan has explicitly
stated she would engage in the same actions under similar circumstances in the
future.
Furthermore, the oath Ms. Phelan took after elected is a general public
service oath, by which Board members pledge to uphold federal and state laws
and to “faithfully, honestly, and impartially discharge the duties of Trustee.” 3 An
oath restricting an individual’s free speech rights would of course be subject to
heightened First Amendment scrutiny. See, e.g., Communist Party v. Whitcomb,
414 U.S. 441, 449-50 (1974) (holding unconstitutional a state loyalty oath
requiring new political parties to swear not to advocate the forceful overthrow of
3
The oath is entitled the “Laramie County Community College Oath of
Office” and contains the following language: “I, Elizabeth Phelan, do solemnly
swear that I will support the Constitution and Laws of the United States, the
Constitution and Laws of the State of Wyoming, and that I will faithfully,
honestly, and impartially discharge the duties of Trustee of the District Board of
Trustees of Laramie County Community College to the best of my ability and
understanding, so help me God.”
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government before being placed on the ballot); Whitehill v. Elkins, 389 U.S. 54,
62 (1967) (invalidating oath requiring teachers to swear under penalty of perjury
that they are not attempting “one way or another” to overthrow the government by
force). But because the oath signed by Ms. Phelan does not contain a penalty,
such as perjury, for failure to follow the ethics policy, it also does not restrict her
free speech rights.
We therefore AFFIRM the district court’s grant of Defendant’s motion for
summary judgment.
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