I FILED
SEPT 21, 2016
I· In the Office of the Clerk of Court
WA State Court of Appeals, Division III
I IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
JONATHAN J. SPRAGUE, a married man, )
) No. 33352-3-111
Appellant, )
)
v. )
)
SPOKANE VALLEY FIRE ) PUBLISHED OPINION
DEPARTMENT, a fire district; MIKE )
THOMPSON and LINDA THOMPSON, )
husband and wife, and the marital )
community composed thereof, )
)
Respondents. )
KORSMO, J. -Jonathan Sprague challenges the dismissal at summary judgment
of his wrongful termination action, arguing that the Spokane Valley Fire Department
(SVFD) violated his First Amendment rights. We affirm.
FACTS
Mr. Sprague served as a captain for SVFD. He formed the Spokane Christian
Firefighters Fellowship (SCFF) and in 2011 began distributing newsletters and meeting
notices for that group via the SVFD e-mail system. Captain Sprague's use of the e-mail
system begat controversy and spiraled into this litigation.
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
His messages concerning SCFF meetings often contained scriptural passages and
mentioned the topics being discussed at the meeting. SVFD responded by reminding
Captain Sprague that the e-mail system was to be used for business purposes only and
that e-mails should not include religious references. SVFD allowed employees to access
their personal e-mail while at work, but they were not permitted to make personal use of
the department's system. Sprague complained in writing that the policy constituted
religious discrimination. Commissioner Monte Nesbit responded by letter and disagreed
with the complaint. He summarized the SVFD e-mail policy:
You may not use department email to post, discuss, or in any way
disseminate communications that are sent for any purpose other than
official SVFD business. This means you cannot send messages using your
official SVFD email which discuss the Fellowship or any other private
purpose. [SVFD] email may only be used to disseminate communications
concerning official SVFD business.
If you wish to send personal emails while on duty (if otherwise permitted
under [SVFD] policy), you may do so using a personal email account (such
as a Hotmail, Gmail, Yahoo, or Comcast account). Using a personal email
account, you may only send messages to other personal email accounts.
You may not use a personal email account to send messages or solicitations
to official SVFD accounts.
Clerk's Papers (CP) at 147.
Commissioner Nesbitt also addressed use of physical and electronic bulletin
boards:
You may not post flyers, advertisements, or solicitations that contain a
religious message, on either the electronic or physical bulletin boards which
are maintained by the SVFD.
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Sprague v. Spokane Valley Fire Dep 't.
You may continue to post flyers or advertisements of local events, food
drives, and meetings. The posting may contain information as to the
organization, the place, the time/date, the contact information, and the
event. These type of postings are acceptable for both the electronic and
physical bulletin boards. For example, you might post a notice that the
Fellowship is meeting at a particular time and place, but the posting may
not have a religious content.
CP at 147-48.
Captain Sprague, however, declined to follow the policy and insisted on using the
SVFD e-mail system to distribute information about meetings of the SCFF. He also
continued to employ scriptural passages in the e-mails and in bulletin board postings. A
series of progressive disciplinary actions ensued. The first action resulted in a Letter of
Counseling concerning misuse of the bulletin boards, followed two weeks later by a
Letter of Reprimand involving misuse of the bulletin boards and the e-mail system. Six
weeks later a two shift suspension without pay was imposed due to disobedience of an
order and violations of the e-mail and bulletin boards policies. The suspension was
stayed pending mediation, but the mediation efforts failed.
Three months after the suspension, SVFD gave notice of its intent to discharge
Captain Sprague. The notice alleged that he had engaged in "conduct unbecoming an
officer," insubordination for violating an order of a superior officer, and had willfully
violated department rules, procedures, and personnel policies. CP at 208. The Board of
Fire Commissioners accepted the termination recommendation and found that Captain
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
Sprague had failed to obey direct orders in violation of department practice and personnel
policies, resulting in just cause for termination.
Mr. Sprague appealed to the civil service commission which conducted a public
hearing at his request. He made a personal argument to the commission and the parties
submitted post-hearing briefs in lieu of closing argument. The commission upheld his
termination. It found that SVFD acted in good faith by imposing progressive discipline
and that Mr. Sprague's insubordination merited termination. It also found that there was
no evidence that SVFD applied its internal policies unevenly or discriminated against Mr.
Sprague for expressing his Christian views. The commission also went on to note some
relevant law relating to valid restrictions that government entities may place on nonpublic
fora in the employment context.
Mr. Sprague did not appeal the civil service commission ruling. Instead, he
instituted an action in superior court against SVFD and its chief. The complaint alleged
violation of the free speech and freedom of religion guarantees of both the United States
and Washington Constitutions, Mr. Sprague's equal protection rights under both
constitutions, the federal civil rights act, and the Washington Law Against
Discrimination, ch. 49.60 RCW (WLAD). The complaint sought reinstatement, damages,
injunctive relief, and declaratory relief.
Eventually, the defendants moved for summary judgment on the basis of collateral
estoppel. The plaintiff, in tum, sought partial summary judgment concerning the
4
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
constitutionality of the SVFD e-mail policy. The competing motions were argued before
Judge Kathleen O'Connor of the Spokane County Superior Court. Plaintiffs counsel
told the court that the parties were in agreement about the facts and that his client had
been insubordinate; however, the chiefs order that Sprague needed to comply with thee-
mail policies was unconstitutional.
Judge O'Connor determined that collateral estoppel barred the plaintiffs cause of
action because of the factual findings included in the civil service commission's ruling.
She noted that there was identity of issues, identity of parties, and a final judgment that
was not appealed. The motion for partial summary judgment was denied and the defense
motion for summary judgment was granted.
Mr. Sprague timely appealed to this court. A panel heard oral argument on the
matter.
ANALYSIS
This appeal presents two issues that we will address in the following order. First
we consider the contention, presented to the trial court by the partial summary judgment
motion, that the SVFD e-mail policy is unconstitutional. We then consider whether the
trial court properly found the claims barred by the doctrine of collateral estoppel.
The standards of review governing summary judgment applicable to both issues
are well settled. This court sits in the same position as the trial court and considers the
issues de novo since our inquiry is the same as the trial court's inquiry. Lybbert v. Grant
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). We view the facts, and all reasonable
inferences to be drawn from them, in the light most favorable to the nonmoving party.
Id. If there is no genuine issue of material fact, summary judgment will be granted if the
moving party is entitled to judgment as a matter of law. Id.; Trimble v. Wash. State
Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000).
SVFD E-mail Policy
The initial question before us involves Mr. Sprague's First Amendment challenge
to the e-mail policy. Specifically, he argues that SVFD applied an anti-religion policy
that was, therefore, not content neutral. His argument challenges the policy as it was
allegedly practiced rather than as it was written. However, we turn initially to the official
written policy. Given our disposition of the remaining issue, we consider the policy as it
was allegedly applied in that section of this opinion.
When it is alleged that the government is improperly infringing on free speech
rights, the first question is to identify the nature of the forum that is being regulated in
order to determine what level of judicial scrutiny applies. Bradburn v. N. Cent. Reg'l
Library Dist., 168 Wn.2d 789, 813, 231 P.3d 166(2010). In a traditional public forum,
the government generally can only impose content neutral restrictions on the time, place,
and manner of expression, if those restrictions are narrowly tailored to serve a significant
government interest and leave open adequate alternative fora. Sanders v. City ofSeattle,
160 Wn.2d 198,209, 156 P.3d 874 (2007). However, in a nonpublic forum, the
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
government may impose restrictions so long as they are "' reasonable in light of the
purpose served by the forum and are viewpoint neutral.'" City ofSeattle v. Eze, 111
Wn.2d 22, 32, 759 P.2d 366 (1988) (quoting Cornelius v. NAACP Legal Def & Educ.
Fund, Inc., 473 U.S. 788, 806, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985)). Intermediate to
those categories, the government can create limited public fora by opening for use by the
public as a place for expressive activity. See Widmar v. Vincent, 454 U.S. 263, 102 S. Ct.
269, 70 L. Ed. 2d 440 (1981).
The parties agreed the SVFD e-mail and bulletin board systems were both
nonpublic fora. 1 Report of Proceedings (RP) at 29, 33. Our precedent compels the same
result. Knudsen v. Wash. State Exec. Ethics Bd., 156 Wn. App. 852, 865-66, 235 P.3d
835 (2010) (university e-mail system for employees was a nonpublic forum); Herbert v.
Pub. Disclosure Comm 'n, 136 Wn. App. 249, 263-64, 148 P.3d 1102 (2006) (school
internal mail and computer systems were nonpublic fora).
1
To the extent appellant's briefing in this court can be read otherwise, he cites to
no evidence that would support finding the systems constitute limited public fora. There
is no evidence that SVFD has ever opened either system to the public generally or
permitted expressive activity. Rather, both of these systems have been reserved for
internal, official business only. What limited exceptions are allowed are narrowly drawn
and exclude expressive content. Specifically, SVFD allows limited, personal use of the
e-mail system when it is incidental to work, like arranging for a babysitter because of the
necessity of working late or permitting employees to post flyers about events or
occasions. Consequently, these fora must be considered nonpublic.
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
The remaining questions are whether the SVFD policy is reasonable and
viewpoint neutral. Once again, the parties 2 agreed in the trial court that it was. 3 That
conclusion is unassailable. The policy of this state, expressed in the ethics in public
service act, chapter 42.52 RCW, is that public resources are to be used for official public
business rather than for personal benefit. See Knudsen, 156 Wn. App. at 860-63
(determining that e-mail sent to encourage others to lobby legislature violated de minimis
use exception to statute). It would destroy the concept of a nonpublic forum to hold that
limiting the use of a government computer system to government business was not
reasonable. Accordingly, the written policy was a reasonable policy under the First
Amendment to the United States Constitution.
The written policy also was content neutral. It distinguished between
communications related to the SVFD's business and those that are personal to the
employees. It is the nature of the communications, not the viewpoints expressed in them,
that matters. There is no discrimination against some messages or in favor of some
2
While it may seem to the casual reader that Sprague conceded the entire issue in
the trial court, such is not the case. There he argued the issue from an "as applied"
standpoint, while here we analyze only the facial text of the policy, an issue that was not
disputed below.
3
Sprague's counsel told the trial judge: "That written policy would be facially
content neutral; it allows for some personal use and it has some proscriptive use. But it
does not, on its face, say personal use would be allowed except for if it has a religious
viewpoint." RP at 27.
8
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
others. Instead, there is a complete ban on private usage (absent work-related necessity)
of the systems without regard to the message conveyed by the sender.
The written SVFD policy does not violate the First Amendment.
Collateral Estoppel
Although the parties did not truly contest the validity of the written policy, Mr.
Sprague certainly contests the validity of the policy as he believes SVFD applied it.
While we normally would analyze his claims under the First Amendment, our conclusion
that he is collaterally estopped by the findings made in the unappealed administrative
proceedings makes it unnecessary to consider the challenge to the policy that he believes
the department actually followed. Thus, we tum now to the collateral estoppel issue.
On this claim, Mr. Sprague's argument is somewhat misfocused. He correctly
takes issue with the civil service commission's legal conclusions, but they are not what
cause him problems here. Instead, it is the unchallenged factual determinations
concerning the reasons for termination that doom this appeal. The trial court correctly
determined that Mr. Sprague's failure to challenge those determinations by appeal to
superior court left him without a viable cause of action.
As relevant to this appeal, the doctrine of collateral estoppel serves to bar litigation
where an issue of ultimate fact has already been determined in previous litigation. State
v. Mullin-Coston, 152 Wn.2d 107, 113, 95 P.3d 321 (2004). The party seeking to enforce
collateral estoppel must establish that ( 1) the issue previously decided is identical to the
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
one presented, (2) the prior adjudication ended in a final judgment on the merits, (3) the
party against whom collateral estoppel is asserted must be the same as the party in the
prior litigation, and (4) application of collateral estoppel does not work a substantial
injustice. Id. at 114.
When considering whether to apply collateral estoppel to an administrative action,
this court should consider: ( 1) whether the agency, acting within its competence, made a
factual decision, (2) procedural differences between the agency and a court, and (3)
policy considerations. Shoemaker v. Bremerton, 109 Wn.2d 504, 508, 745 P.2d 858
(1987). Applying these factors, Shoemaker concluded that civil service commissions can
resolve factual issues concerning termination and employment policies and collateral
estoppel can be applied to those findings. Id.
We agree with Mr. Sprague that the commission's legal conclusions, such as its
determination that its rulings complied with the First Amendment, 4 are not subject to
estoppel. Courts, not administrative agencies, determine whether the constitution has
been complied with. However, Shoemaker confirms that a civil service commission
factual finding can be given preclusive effect.
That is the case here. All of the classical elements for collateral estoppel are
satisfied in this case. The issue presented to the civil service commission-whether
4
CP at 55-56.
10
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
SVFD discriminated against Mr. Sprague because of religion-is the same issue
presented at the heart of this action. The civil service commission action did end in a
final decision. The parties are identical. There is no injustice in applying collateral
estoppel in this circumstance. Mr. Sprague was the one who presented the issue to the
commission; he had a full opportunity to present his case. Indeed, the only potential
injustice in this situation would be to SVFD since it could face the possibility of
inconsistent judgments arising from its termination of Mr. Sprague.
The commission made two related factual determinations that are dispositive in
this case. First, it determined that "Sprague was not terminated for religious reasons."
CP at 54. Second, it found that "there was no evidence presented ... that the rules were
applied unevenly and with discrimination based upon Sprague's expression of his
Christian views." CP at 55. Like th~ trial court, we agree that these determinations are
inconsistent with this civil action for damages and other relief. Mr. Sprague did not
attack those factual findings by further appeal; he may not collaterally attack them by
filing a separate law suit.
The determination that there was no alternative "as applied" policy is particularly
critical to this case. Much of Mr. Sprague's claims, including his challenge to the SVFD
e-mail policy, presume the existence of a policy of discrimination against the expression
of religious viewpoints. Mr. Sprague can only establish the existence of such a policy if
he can establish that the otherwise viewpoint neutral SVFD e-mail system policy was
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
applied in a discriminatory manner against religious expression. The civil service
commission found as a matter of fact that this was not the case. There was "no evidence"
of any such practice. It was unsurprising that the SVFD's complaints to Mr. Sprague
involved his use of religious expression, because that was the manner in which he
repeatedly violated SVFD policy against private use of government property. It should
go without saying that a fire department's business is firefighting, not discussion of
religion. Pointing out that Mr. Sprague violated the prohibition against public use in that
specific manner did not thereby convert the policy to one of opposition to religious
speech any more than challenging use of e-mails to promote chess tournaments or a
political candidate could be interpreted as anti-chess or anti-political speech. The policy
was anti-private use, not anti-religion.
These factual findings concerning the department's true motivation for terminating
Mr. Sprague's employment are dispositive of all of his claims in this action. 5 He is not
able to show that SVFD had a discriminatory policy against religious speech or that Mr.
Sprague was terminated because of his religion. He was terminated for not obeying
orders to stop using the e-mail and bulletin boards to promote his private activities. The
5
Shoemaker involved a similar finding by a civil service commission. There a
demoted deputy police chief contended that his demotion was the result of retaliatory
action. The commission found otherwise. 109 Wn.2d at 505-07. Our court concluded
that the finding was factual in nature and should be given preclusive effect due to
collateral estoppel. Id. at 507-13.
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't.
policy of not permitting private use of the nonpublic forum was reasonable. Mr. Sprague
lost his ability to claim that there was an alternative policy when he failed to appeal the
civil service commission determination to the contrary.
The trial court correctly estopped Mr. Sprague from challenging the commission's
findings. There was no error.
Affirmed.
I CONCUR:
Lawrence-Berrey, A.C
j
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No. 33352-3-III
LAWRENCE-BERREY, J. (concurring)- I concur in our conclusion that Spokane
Valley Fire Department's (SVFD's) internal electronic employee communication (IEEC)
policy 1 did not violate Jonathan Sprague's First Amendment free speech rights. I write
separately to address one of the worthy points discussed by our dissenting colleague.
The dissent would find a violation of Mr. Sprague's free speech right to the extent
SVFD prohibited Christian view postings that discussed topics addressed in its IEEC.
SVFD permitted Mr. Sprague, during work hours, to discuss his Christian views
with his colleagues both verbally and through his personal e-mail. What SVFD
prohibited was employees using its IEEC for nonbusiness purposes. Mr. Sprague knew
SVFD's policy. SVFD repeatedly warned him that his postings violated its policy. Yet
Mr. Sprague continued his postings. For this, he was terminated.
The dissent correctly acknowledges that SVFD could constitutionally limit its
employees' free speech to the extent reasonably necessary to avoid liability under the
First Amendment's Establishment Clause. The dissent concludes that SVFD did not
1
SVFD has two forms of nonpublic IEEC-by internal e-mail and by internal
electronic bulletin board. The business-only policy applies to both.
No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't (concurring)
strike a reasonably necessary balance and would remand for additional findings. I
disagree. As explained below, the balance struck by SVFD was reasonably necessary.
Berry v. Department of Social Services, 447 F.3d 642 (9th Cir. 2006) is
instructive. In that case, Daniel Berry worked for Tehama County's Department of
Social Services (Department), assisting unemployed and underemployed clients in their
transition out of welfare programs. Id. at 645-46. His work required him to conduct
client interviews, over 90 percent of which took place in his personal cubicle. Id. at 646.
Mr. Berry described himself as an evangelical Christian and thus required to share his
faith. Id. Upon his hiring, the Department told Mr. Berry that it had a policy that
prohibited employees from talking about religion with clients and the agencies its
employees contacted. Id. Similar to this case, the policy allowed employees to discuss
religion with other employees. Id. However, the policy prohibited displays of religious
items in areas such as cubicles, which were visible to clients. Id. at 64 7. The Department
director also prohibited Mr. Berry from using a specific conference room for prayer
meetings, which was a nonwork purpose. Id. at 646. Dissatisfied with these restrictions,
Mr. Berry sued the Department. Id. at 647-48.
The district court granted summary judgment for the Department, and the Ninth
Circuit affirmed. Id. at 645. In affirming, the Ninth Circuit applied the Pickering2
balancing test. Id. at 645-46, 648. That test recognizes that public employees do not lose
2
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 88 S. Ct.
1731, 20 L. Ed 2d 811 (1968).
2
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (concurring)
the free speech rights they enjoy as citizens. Id. at 648. The test also recognizes that
government, in its capacity as an employer, has interests in regulating the speech of its
employees that differ significantly from those it possesses in connection with regulating
the speech of its citizens. Id. (quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist.
205, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed 2d 811 (1968)). These rights must be
reconciled and, in doing so, courts must balance "'the employee's right to engage in
speech and the government employer's right to protect its own legitimate interest in
performing its mission.'" Id. (quoting City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.
Ct. 521, 160 L. Ed. 2d 410 (2004)). In addition, avoiding an Establishment Clause
violation may be a compelling state interest, justifying an abridgement of free speech
otherwise protected by the First Amendment. See Good News Club v. Milford Cent. Sch.,
533 U.S. 98, 112-13, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001); Lamb's Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S. 384,394, 113 S. Ct. 2141, 124 L. Ed. 2d 352
(1993). The Ninth Circuit concluded:
[T]he Department's concern with an Establishment Clause violation is well
taken. The Department's clients seek assistance from Mr. Berry in his
capacity as an agent of the state. Accordingly, they may be motivated to
seek ways of ingratiating themselves with Mr. Berry, or conversely, they
may seek reasons to explain a perceived failure to assist them. It follows
that any discussion by Mr. Berry of his religion runs a real danger of
entangling the Department with religion .... We conclude that under the
balancing test, the Department's need to avoid possible violations of the
Establishment Clause of the First Amendment outweighs the restriction's
curtailment of Mr. Berry's religious speech on the job.
Berry, 447 F.3d at 650-51 (emphasis added).
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (concurring)
Here, Mr. Sprague was permitted to discuss his Christian views with his
colleagues during work hours, both verbally and through his personal e-mail. He was
merely prohibited from using SVFD's IEEC for nonbusiness purposes. Such a restriction
curtailed, but only to a small degree, Mr. Sprague's free speech rights. SVFD had a
reasonable concern that a failure to restrain Mr. Sprague's postings could lead non-
Christian employees to feel marginalized, thus exposing it to Establishment Clause
liability in the event an employee reasonably believed this marginalization affected his or
her terms or conditions of employment. Although such a concern might not be
significant, neither was the abridgement of Mr. Sprague's free speech right. If we had to
reach the issue, I would hold that here, SVFD successfully navigated between the Scylla
of not respecting Mr. Sprague's free speech right and the Charybdis of exposing it to
Establishment Clause liability by appearing to endorse a particular religious view.
j
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No. 33352-3-111
FEARING, C.J. (dissenting)-
And Jesus came and said to them, "All authority in heaven and on
earth has been given to me. Go therefore and make disciples of all nations,
baptizing them in the name of the Father and of the Son and of the Holy
Spirit, teaching them to observe all that I have commanded you; and lo, I
am with you always, to the close of the age." Matthew 28:18-20 (Revised
Standard Version).
Jesus Christ commissioned his contemporary and present-day disciples to teach
others in the Christian faith. Religions in addition to Christianity also direct adherents to
teach the religion's moral lessons, rules of conduct, and eternal values. Since a person of
faith spends much time with his or her coworkers, fellow employees often become the
focus of sermonizing. The religious devotee encourages, and sometimes nags,
coworkers, with promises of happier days, a fuller life, and eternal salvation, to adopt a
different lifestyle. While proselytizing may annoy some coworkers, Washington proudly
tolerates different religious views and braves open discussion of religion. This appeal
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
addresses the extent to which a government employee may use government property to
fulfill his or her religious commission to tell coworkers of his faith.
Jonathan Sprague, a Spokane Valley Fire Department firefighter, employed thee-
mail system of the fire department as a microphone for his religious views. The majority
holds that the fire department held the prerogative to preclude the use of its e-mail for the
voicing of religious messages. I note that a government entity, as a general proposition,
enjoys this prerogative. Nevertheless, the Spokane Valley Fire Department opened its e-
mail system to employee messages of solving personal problems and societal ills through
the grace of God when the fire department delivered employee assistance programs
newsletters, through the department e-mail, addressing those same problems and ills.
The Spokane Valley Fire Department's discipline of Sprague for addressing a topic from
Sprague's spiritual perspective constituted viewpoint discrimination in violation of
Sprague's free speech rights. The government may not prefer secular chatter over
religious oration. I therefore dissent from the majority's affirmation of summary
judgment in favor of the fire department.
Claims
Jonathan Sprague sues under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000, the Washington Law Against Discrimination, chapter 49.60 RCW, the
Washington Constitution, and the United States Constitution. The trial court dismissed
all claims. On appeal, Sprague cites no law that establishes that the Washington
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No. 33352-3-III
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Constitution provided him greater liberty or protection than the United States
Constitution's First Amendment. We do not address whether the state constitution
provides a party broader rights unless that party briefs the factors announced by the state
Supreme Court in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). Ma/yon v.
Pierce County, 131 Wn.2d 779,791,935 P.2d 1272 (1997).
Jonathan Sprague also fails to address either the federal or state anti-
discrimination in employment statutes in his appeal briefing. This court does not review
issues not argued, briefed, or supported with citation to authority. RAP 10.3(a); Valente
v. Bailey, 74 Wn.2d 857,858,447 P.2d 589 (1968); Avellaneda v. State, 167 Wn. App.
474,485 n.5, 273 P.3d 477 (2012). Thus, this court need only ask if the conduct of the
Spokane Valley Fire Department violated Jonathan Sprague's rights under the First
Amendment to the United States Constitution.
Despite seeking to express his religious faith, Jonathan Sprague relies only on the
free speech clause, and not the exercise of religion clause, of the First Amendment on
appeal. I do not know if the analysis would change if Sprague relied on the free exercise
clause.
Some Facts
I emphasize some facts. The Spokane Valley Fire Department allowed Jonathan
Sprague to evangelize at work to the extent the proselytization did not disrupt business.
The fire department permitted Sprague to speak with coemployees, during work hours, of
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No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
his faith and his desire that others enjoy salvation through Jesus Christ. Because of the
unique work schedule of firefighters, the fire department allowed Sprague, during work
time, to use a department computer to send messages about his devotion to Christ as long
as Sprague used his personal e-mail address accessed through the computer and Sprague
sent the messages to coworkers' private e-mail addresses.
Spokane Valley Fire Department Policy 171 (Policy) indirectly barred Jonathan
Sprague's use of the department's e-mail system to send spiritual communiques. The
policy read, in pertinent part:
The electronic mail system hardware is [Spokane Valley Fire
Department (SVFD)] property and all messages composed, sent, or
received on the system are SVFD property. Therefore, the use of the
electronic mail system is reserved solely for SVFD business and should not
be used for personal business.
Clerk's Papers (CP) at 108. Sprague could use the fire department e-mail system to ask a
fellow staffer to disclose his or her personal e-mail address in order to later communicate
with religious messages to the personal address.
Because the Spokane Valley Fire Department maintained more than one fire
station, a common physical bulletin board for all firefighters was not useful. Therefore,
the fire department used its electronic mail ·system, in part, as a bulletin board. The
record does not establish the entire gambit of subjects, on which firefighters could post
on the electronic bulletin board. Deposition testimony gave examples of the selling of
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No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't (dissenting)
concert tickets, snow tires, hay, and motorcycles and the seeking of recommendations for
a babysitter.
Spokane Valley Fire Department Policy 171 and the fire department's application
of the policy precluded Jonathan Sprague's use of the fire department's electronic
bulletin board to post religious messages. Sprague formed the organization, Spokane
Christian Firefighters Fellowship. He could post notices of the fellowship's meetings on
the bulletin board. Sprague does not contend that the permission to post notices of
organizational meetings and events opened the door to his being free to send messages
with an overt religious content.
Jonathan Sprague contends that allowing other firefighters to sell used goods and
seek recommendations for babysitters opened the bulletin board to him for purposes of
religious evangelism. According to Sprague, the fire department allowed any speech,
other than religious proselytizing, on the electronic bulletin board and this practice
discriminated against him in violation of the First Amendment.
Jonathan Sprague contends that the Spokane Valley Fire Department electronic
bulletin board contained other expressions of religious views. Nevertheless, he does not
identify these expressions in his brief. When asked at oral argument to identify the page
number or numbers of the record supporting this contention, Sprague's counsel could not
identify a page number. Wash. Court of Appeals oral argument, Sprague v. Spokane
5
No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
Valley Fire Dep 't., No. 303352-3-111 (June 10, 2016) at 8:30 to 8:45 (on file with the
court).
The record on appeal contains a Spokane County website page that explains a
chaplaincy program provided for law enforcement officers. A second website page
introduces a new chaplain. The writer of the second page quotes three verses from the
Biblical book of Psalms. We do not know what relevance this page holds to the dispute
between the Spokane Valley Fire Department and one of its firefighters. Jonathan
Sprague testified that he received a copy of the chaplain's message, but he did not
disclose from what resource he garnered a copy.
The Spokane Valley Fire Department, as most larger employers, managed an
Employee Assistance Program (EAP). The fire department's health insurer, APS
Healthcare, administered the program, and the insurer periodically prepared newsletters
for fire department employees. APS mailed the newsletters to the fire department, and
the department's administrative director forwarded the newsletters to fire department
employees through the department's e-mail system.
Two newsletters from APS Healthcare respectively discussed a parent's
communicating with a teenage child and coping with an "empty nest." Another
newsletter is alternatively titled "Prevent Caregiver Depression" and "Quick Change
Your Mood." CP at 285. The text of this letter is unreadable. A photo under the latter
heading pictures a young lady meditating in what might be a lotus position.
6
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
An APS Healthcare newsletter advised a parent to be strict with regard to a
teenage child's use of alcohol and marijuana. Another page of this newsletter discusses
difficult behavior of a teenager, but the text is unreadable. Another newsletter identifies
forms of eating disorders and treatments for the disorders.
An APS Healthcare newsletter on suicide reads:
A person who attempts suicide will usually reach out for help first.
Behaviors or cries for help may be subtle. Would you recognize the
warning signs? If someone mentions having suicidal thoughts, don't shy
away. Be ready to act by knowing the risk factors and second-guessing
your denial response.
Here's rule No.1: Ask about it. Don't let your fear hold you back.
Empathizing or inquiring about suicidal statements saves lives. It is not
what pushes a suicidal person over the edge. People who are contemplating
suicide will usually talk about it, but they often need to be led into the
conversation. Always take the matter seriously. Stay calm, and express
your concern and assure the suicidal individual of how much he or she is
loved and valued. Get a commitment from the individual to seek
professional help, and agree to facilitate access to help by removing
obstacles to it. Provide childcare or transportation, or summon emergency
help if a threat is imminent.
If you need immediate help for yourself or a loved one, call 911, 1-
800-SUICIDE or 1-800-273-TALK.
Other resources include your Employee Assistance Program,
www.suicide.org, ww.afsp.org (American Society for Suicide Prevention)
or www .survivorsofsuicide.com.
CP at 286.
One Employee Assistance Program newsletter discussed team building:
If you are part of a new work team, be sure to invest timesharing
among members to determine each person's strengths, limitations, and
interests before assigning roles and tasks. This exercise reduces
communication problems and conflicts that can arise later from a lack of
7
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
cohesion. Team problems often start at the beginning. Unfortunately,
many teams perceive struggles with conflict as originating with the
organization-the boss, politics, or other factors. Avoid these member
pitfalls: 1) Believing your skills and experience demand that you do a
disproportionate amount of work. 2) Assuming a team member's
underperformance is due to a lack of personal organization, motivation, or
skill (often team issues explain individual performance shortcomings).
Always start with the team first when searching for solutions. 3) Failing to
intervene early when there are indicators that one or two people are doing
most of the team's work.
CP at 293.
Another APS Healthcare newsletter addressed the evils of gambling:
Most people have heard of compulsive gambling (gambling
disorder), but do you know the earliest symptoms of this addiction?
Legalized avenues for gambling are increasing nationally so more people
are likely to be affected. Knowing the early signs can make intervention
easier to stop the devastating condition. Reportedly, the earliest signs of
the disorder are chasing losses, betting more than you can afford to lose,
and feeling guilty about gambling. Sound familiar? Help is available.
Start with your Employee Assistance Program or a professional counseling
resource.
CP at 293.
Finally, an APS Healthcare message warns of binge drinking:
The Centers for Disease Control (CDC) has begun an effort to
educate consumers about the dangers and huge economic cost of binge
drinking-over $225 billion per year. It is a growing problem that they
admit has been studied less than alcoholism. There are about 18 million
alcoholics and regular alcohol abusers in the United States, but there are 38
million binge drinkers. That's about 15 [percent] of the population. Most
are not alcoholics. Binge drinking means drinking five or more alcoholic
drinks within a short period of time for men, and drinking two or more
drinks within a short period of time for women. Binge drinkers consume
alcohol on average four times per month. The highest average number of
8
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
drinks consumed during at least one of those drinking sessions is eight.
Auto crashes, accidents, violence, and suicide are the key risks for binge
drinkers. People between the ages of 18 and 34 do the most binge drinking,
and the income group with the highest number of binge drinkers is those
making over $75,000 a year. What can be done to reduce binge drinking?
Becoming aware of your binge drinking is the first step and evaluating your
own drinking pattern is next. Helping make others aware of the problem
follows, but the CDC has other recommendations too. Learn more at the
Centers for Disease Control at
http://www. cdc. gov /vi talsigns/B ingeDrinking/.
APS Healthcare's Employee Assistance Program. The EAP
program through APS Healthcare assists organizations and their workforce
in managing the personal challenges that impact employee well-being,
performance and effectiveness. APS' life management consultants employ
a comprehensive approach that identifies issues impacting the employee
and assists them in developing meaningful solutions.
Please call the phone number below for more information about your
Employee Assistance Program and the services available to you.
CP at 294.
Jonathan Sprague writes in his appeal brief that the Spokane Valley Fire
Department invited or requested responses from firefighters to the health insurer's
newsletters. Nevertheless, the citation to the record given by Sprague for this factual
assertion does not support the contention. Sprague also writes in his brief that the fire
department permitted the use of the e-mail system by employees for the expression of
personal views linked to fire department business. He fails to cite the record for this
factual proposition.
In early February 2012, Jonathan Sprague quoted a biblical scripture as part of a
bulletin board post announcing a Spokane County Christian Firefighters Fellowship
9
No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
meeting. On April 5, 2012, Sprague quoted two sacred scriptures as part of a bulletin
board announcement for the Fellowship. The announcement read:
The April newsletter continues with our discussion on suicide. If you
didn't catch March's kickoff in the series, be sure to read that first. (All
back copies are available on the SCCFF website.) The question this month
is what role does mental illness play in the act of suicide? Does mental
failure cause moral failure? Can a person be pre-wired to sin? If so, are
they still accountable for their actions? How do these ideas fit in with our
foundational verse?
For none of us lives to himself, and none of us dies to himself. For if
we live, we live to the Lord, and if we die, we die to the Lord. So then,
whether we live or whether we die, we are the Lord's. (Romans 14: 7-8)
We are also finishing up the series on fellowship by looking at the
toughest group for us to deal with on a personal basis: nominal Christians.
Most of us could have been put in that group ourselves once or twice and
we work with others who currently are. What are we to do? How can we
work with them to get the job done as brother firefighters, yet still follow
the Scriptural mandates regarding backsliding brothers in Christ?
But actually, I wrote to you not to associate with any so-called
brother if he is an immoral person, or covetous, or an idolater, or a reviler,
or a drunkard, or a swindler-not even to eat with such a one. (1
Corinthians 5: 11)
CP at 151.
On April 24, 2012, Jonathan Sprague accessed the Spokane Valley Fire
Department e-mail system from an outside source and used his fire department account to
send a message to the fire department e-mail accounts of forty-six employees. Thee-
mail read, in part:
Subject: Logo Design-Need your Vote
Attached are some designs for the SCCFF [Spokane County
Christian Firefighters Fellowship] logo. These are the ones that seem to
wash out least in B&W. One might be a good for a patch design and
10
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
another embroidered on a polo or silk screened on a t-shirt. I would greatly
appreciate a vote for both a patch and for a logo.
Jon.
CP at 157. One logo contained the Latin phrase: "Soli Deo Gloria," which translates into
English as "Glory to God alone." CP at 158. A second logo contained an illustration of a
flame, although one with a Christian heritage might consider the illustration to be a
symbol of speaking in tongues or of the Christian holy day of Pentecost.
On April 30, 2012, Jonathan Sprague posted on the Spokane Valley Fire
Department electronic bulletin board by use of the fire department e-mail system
accessed from an outside source. Sprague also sent the post as an e-mail message to the
fire department e-mail accounts of forty-six employees. The e-mail read:
Newsletter
The May newsletter celebrates a fresh look and a new logo. This is
our new patch design and comes in a couple different variations. Another
design for more casual use, similar to the one in the Classifieds, will be
introduced soon.
This month, we'll be reading what the Bible says about supplements.
What? Yes, Peter actually talked about supplements in his second epistle,
so read on and stock up now
We're also continuing with our series on suicide, which will in part,
answer last month's question, "Are the Darwin awards only given out in
hell?" In other words, if you die as a result of your own foolish actions,
what effect does that have on your eternal salvation? When the Apostle
Paul says, "[W]hether we live or whether we die we are the Lord's", is he
speaking conditionally or affirming our security in Christ? We all like
simple answers to difficult questions, but the questions we ask may not
fully represent the truths behind them.
Activities
11
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
The SFD breakfast is coming up mid-month and a dinner barbecue at
the Bowl and Picture [sic] on the 19th. Bring your bikes for a nice dinner
spin. (Gotta bum off that homemade ice cream!).
Be watchful for some kayaking on the Little Spokane. The water is
still very high, so we may have to hike the boats in, again, if we want to do
another early spring run. Dates for the 2012 Biruka will be out soon.
As always, check out the website or [F]acebook page for more info
about what's up, or give me a call.
Jon
CP at 165-66.
On May 29, 2012, Jonathan Sprague sent the following message to Spokane
Valley Fire Department employees' e-mail addresses:
Napoleon Bonaparte once said, "I know men and I tell you, Jesus
Christ is no mere man. Between him and every other person in the world
there is no possible term of comparison. Alexander, Caesar, Charlemagne,
and I have founded empires. But on what did we rest the creations of our
genius? Upon force. Jesus Christ founded his empire upon love; and at
this hour, millions would die for him."
This newsletter article examines the purpose of leadership's power
and authority, which has been a topic of no small interest as of late. There
are clearly some radical differences in the leadership style of Jesus, who,
according the Bible, was given all power and authority in heaven and on
earth. Why has anyone ultimately been given power and authority over
others, and how might they be best utilized in the fire station or in the
home? We'll take [a] look at leadership from this Biblical perspective for
some answers.
We're also keeping up with our series on suicide with a closer look
at the intervention piece and the Biblical principles with which it may
coincide. A lot has been said about the openPhoenix project, First Call
Now, and other resources, most of which are designed to intervene when
things are starting to spiral downhill. These types of programs are a
relatively new, and by their nature don't fix anything, but rather, act as
emergency medicine, arresting the damage and buying time for healing to
occur. As such, they reflect the love, mercy, and compassion of God and of
those who desire to have such traits in themselves.
12
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
We're getting together for kayaking on the 6th and breakfast on the
21st. Check out the classifieds [the fire department electronic bulletin
board] for more details if you are interested.
Jon
CP at 168.
On July 16, Jonathan Sprague sent another message through the Spokane Valley
Fire Department e-mail system. The message read:
But what if your leaders are themselves are following the wrong
path?
That is the question everyone faces at some point. Little doubt why
trust is such a critical factor in effective leadership-followership
relationships, especially when the leader has not given you what you need
to know in order to be convinced of the plan yourself.
The answers to these questions can be found by studying the
leadership-followership paradigm we see in Jesus as detailed in the Bible,
as He interacts with His Father above and His disciples below. What was it,
or who was it, that Jesus wanted His followers to follow and why? How
might that impact your own leadership or followership? There are certainly
differences in the world's understanding of followership and that of
Christians. This article may stimulate some reflections along those lines as
we continue to look at leadership from a Biblical viewpoint.
We're also looking to discover what type of impact holding a
religious belief has on suicide. Are some faiths better or worse in this
regard? If so, why? And, which ones? The answers might help you to
better understand others who may be heading down a dangerous path.
Check it out, here. You might be surprised.
There is an ice cream social at my house on the 21st, where I'd love
to discuss these ideas and "sharpen swords" on some of the finer points.
As I've said before, if you do not wish to receive these emails,
please let me know and I will remove you from the list. If you would rather
get them at a different email address, I'd be happy to send them there
instead. Even though they deal with fire service topics, nothing in these
emails is endorsed by the department anymore [sic] than other such
discussions on similar topics, as should be abundantly clear by this time.
13
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
CP at 265.
On July 31, 2012, Jonathan Sprague wrote to his coworkers, through the fire
department e-mail system:
If your home can weather a disaster, it is only because it was built
that way. The life of a firefighter who survives personal disasters is no less
well designed. Stepping beyond suicide prevention, this article looks at
ways from the Bible that we can methodically build our lives in ways that
will last through the worst of days, beginning with Building Construction
JOI-Site Plans. I think you'll find these truths to have been a great help to
many brother and sister firefighters, such as Jason Webster (SFD) and his
wife Jessica, who is battling cancer. I know so many of you have
experienced similar pains and found similar help from the Lord. Be sure to
lift them up as you consider your own situation.
On another note, have you ever wondered what a career of fighting
fire is worth in the end? There must be more to it than a pension and fast
fading memories of the "glory days." King Solomon enjoyed more
accomplishments and pleasures than you or I ever could and he had much
to say when he was all through. Perhaps you' 11 find some interesting things
to consider as we look at Firefighting -A For-Profit Enterprise.
CP at 203.
A September 1, 2012, e-mail message from Jonathan Sprague to his coworkers, on
the fire department system, read, in part:
We started a series last month on building construction-how best to
build a life that can weather the storms that invariably come, and we
firefighters really have some big storms. The Bible has much to say about
what and who comprise a solid foundation. Some of the verses will
certainly be familiar. I hope you'll find the article encouraging and,
perhaps, a reminder to check beneath the surface to see what's down there
at the core of your life. Cracks in the foundation can result in catastrophic
damage if not caught early.
CP at 268.
14
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
One Spokane Valley Fire Department firefighter asked Jonathan Sprague to be
removed from the list of coworkers to whom Sprague sent his religious messages. No
one complained to the fire department administration about messages from Sprague. No
employee questioned the fire department administration as to whether the department
sponsored or approved of Sprague's messages. The fire department agrees that, assuming
Jonathan Sprague's proselytizing through the department's e-mail system led to costs
incurred by the fire department, the cost could not be calculated and would be de
mm1mus.
In a September 6, 2012, notice of disciplinary action, Spokane Valley Fire
Department Fire Chief Mike Thompson notified Jonathan Sprague that causes of
discipline included posting, on the department e-mail system, "negative comments about
the leadership of SVFD and written content that was of a religious nature." CP atl 17.
Collateral Estoppel
The majority underscores two factual findings of the civil service commission and
concludes that those findings bind this reviewing court. First, the commission found that
the Spokane Valley Fire Department terminated Jonathan Sprague's employment because
of insubordination, not for religious reasons. I disagree that this factual finding binds this
reviewing court at least to the extent o.f requiring us to rule that the fire department did
not discriminate on the basis of the viewpoint of Sprague's messages. The finding
directly relates to Sprague's First Amendment argument, and thus the finding is akin to a
15
No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
conclusion of law. Collateral estoppel does not extend to conclusions of law rendered by
administrative agencies. Silverman v. JRL Food Corp., 196 F.3d 334, 335-36 (2d Cir.
1999); Nat'/ Labor Relations Bd. v. Markle Mfg. Co. of San Antonio, 623 F.2d 1122,
1126 (5th Cir. 1980); Mosher Steel Co. v. Nat'/ Labor Relations Bd., 568 F.2d 436,440
(5th Cir. 1978).
When a question on review implicates constitutional rights necessitating
consideration of legal concepts in the mix of fact and law and an exercise of judgment
about the values that animate legal principles, the factors favoring de novo review
predominate. Levey v. D 'Angelo, 819 So. 2d 864, 867 (Fla. Dist. Ct. App. 2002); Smith v.
Fresno Irrig. Dist., 72 Cal. App. 4th 147, 156, 84 Cal. Rptr. 2d 775 (1999). Whether an
employee's speech is protected under the First Amendment and whether a restriction on
speech is constitutional are reviewed de novo. Berry v. Dep't of Soc. Servs., 447 F.3d
642, 648 (9th Cir. 2006); Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir. 1988).
Jonathan Sprague was insubordinate because he sought to sermonize. A fire
department employee is mutinous only if he disobeys a lawful order, and an order
I
violating one's First Amendment rights is unlawful. Therefore, to the extent the fire II
department breached Sprague's constitutional rights, Sprague must not be considered
insubordinate. I
I
I
The civil service commission also found that the Spokane Valley Fire Department I1
f
evenly applied Policy 171 and did not discriminate based on Jonathan Sprague's
l
16
I
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
expression of Christian views. This court's majority may conclude that this finding ends
our analysis as to whether the fire department violated Sprague's First Amendment
rights. If so, I disagree. We should adopt the commission's finding to the extent that the
finding confirms the evidence that the fire department did not allow one or more
individuals to proclaim their religious views, while denying Sprague the opportunity to
preach his devout beliefs. Nevertheless, as already outlined, the undisputed facts show
that the fire department disseminated information from its health insurer on the
department's e-mail system about personal struggles and family crises that could interfere
in an employee's mental health and job performance. In tum, the fire department
precluded Jonathan Sprague from discussing, by department e-mail, these same topics
from his Christian perspective.
Based on the undisputed facts, this court should address, without deference to the
civil service commission, the constitutional question of whether the fire department
unlawfully discriminated against Sprague because of his spiritual message. The
commission's determination of a lack of discrimination was a mixed question of fact and
law. Again, collateral estoppel does not apply to conclusions oflaw. We review anew
constitutional questions embedded in a medley of fact and law. II
Forum Analysis and Viewpoint Discrimination '
!
I
•~
t
The precise issue before this court is whether the Spokane Valley Fire Department r
!
needed to permit Jonathan Sprague the use of the department's e-mail system to speak !'
'
17
I
I
No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't (dissenting)
from a religious vantage point on topics affecting firefighters' mental health when the
department disseminated information on those same topics. The majority does not
directly address this critical question. I dissent from the majority because the answer is in
the affirmative.
Jonathan Sprague wanted to utilize an e-mail system established, operated, and
paid for by a government agency, his employer. In short, he desired to use government
property to advance his Christian message. Protected speech is not permissible in all
places and at all times. Cornelius v. NAACP Legal Def & Educ. Fund, Inc., 473 U.S.
788, 799, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985). Nothing in the constitution requires
the government freely to grant access to all who wish to exercise their right to free speech
on every type of government property without regard to the nature of the property or to
the disruption that might be caused by the speaker's activities. Cornelius v. NAACP
Legal Def & Educ. Fund, Inc., 473 U.S. at 799-800. The government, no less than a
private owner of property, has power to preserve the property under its control for the use
to which it is lawfully dedicated. Cornelius v. NAACP Legal Def & Educ. Fund, Inc.,
473 U.S. at 800; Greer v. Spock, 424 U.S. 828, 836, 96 S. Ct. 1211, 47 L. Ed. 2d 505
(1976).
The United States Supreme Court has adopted a forum analysis as a means of
determining when the government's interest in limiting the use of its property to its
intended purpose outweighs the interest of those wishing to use the property for other
18
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
purposes. Cornelius v. NAACP Legal Def & Educ. Fund, Inc., 473 U.S. at 800.
Accordingly, the extent to which the government can control access depends on the
nature of the relevant forum owned by the government. Cornelius v. NAACP Legal Def
& Educ. Fund, Inc., 473 U.S. at 800.
The Supreme Court has fashioned three or four classifications of fora, for purposes
of free expression: a traditional public forum, a designated public forum, a limited public
forum, and a nonpublic forum. Sometimes the designated and limited public fora are
treated as one category. The First Amendment rules to apply depend on the
classification. The initial task for a court evaluating restrictions placed on speech or
expressive conduct on government property is to define the nature of the property at
issue. Byrne v. Rutledge, 623 F.3d 46, 53 (2d Cir. 2010). We will see later, however,
that the identification of the forum is irrelevant when a speaker, such as Jonathan
Sprague, argues viewpoint discrimination.
Because a principal purpose of traditional public fora is the free exchange of ideas,
speakers can be excluded from a traditional public forum only when the exclusion is
necessary to serve a compelling state interest and the exclusion is narrowly drawn to
achieve that interest. Perry Educ. Ass 'n v. Perry Local Educators' Ass 'n, 460 U.S. 37,
45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983). A traditional public forum includes a street,
sidewalk, public square, or a park. Perry Educ. Ass 'n v. Perry Local Educators' Ass 'n,
19
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
460 U.S. at 45; Hague v. Comm.for Indus. Org., 307 U.S. 496,515, 59 S. Ct. 954, 83 L.
Ed. 1423 (1939).
A designated public forum includes a civic arena available for use to private
organizations. A limited public forum may be a room that a government entity opens on
a temporary basis for a single topic. Summum v. Callaghan, 130 F.3d 906, 914 (10th Cir.
1997). As with a traditional public forum, when the government intentionally designates
a place or means of communication as a public forum, speakers cannot be excluded
without a compelling governmental interest. Cornelius v. NAACP Legal Def & Educ.
Fund, Inc., 473 U.S. at 800 (1985). Virtually all regulations on speech in a limited or
designated public forum receive the highest level of First Amendment scrutiny. Byrne v.
Rutledge, 623 F .3d at 53 (2d Cir. 2010). Access to the fourth category of fora, a
nonpublic forum, however, can be restricted as long as the restrictions are reasonable and
are not an effort to suppress expression because of the viewpoint expressed by the
speaker. Cornelius v. NAACP Legal Def & Educ. Fund, Inc., 473 U.S. at 800.
Jonathan Sprague is not simply a member of the public. He is an employee of the
government. Nevertheless, forum analysis applies even when the speech restricts
insiders. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S. Ct. 562, 98 L.
Ed. 2d 592 (1988); Berry v. Dep 't ofSoc. Servs., 447 F.3d at 652-54 (9th Cir. 2006).
The parties agree that the electronic e-mail system of the Spokane Valley Fire
Department constitutes a nonpublic forum. The majority and I agree with the parties.
20
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
The United States Supreme Court held, before common exploitation of the Internet, that a
government entity's internal mail system is not a public forum. Perry Educ. Ass 'n v.
Perry Local Educators' Ass 'n, 460 U.S. at 46. Courts, including Washington courts,
have since held an agency's e-mail system to be a nonpublic forum when the facilities are
l
not open to the public. Lovingv. Boren, 956 F. Supp. 953,955 (W.D. Okla. 1997); !I
l
Knudsen v. Wash. State Exec. Ethics Bd., 156 Wn. App. 852, 865-66, 235 P.3d 835
II
(2010); Herbert v. Pub. Disclosure Comm 'n, 136 Wn. App. 249, 263-64, 148 P.3d 1102 i
I
i
(2006).
I
In a nonpublic forum, the government has maximum control over communicative I!
I
behavior. Byrne v. Rutledge, 623 F.3d at 53 (2d Cir. 2010). Speech in nonpublic fora I
I
I
may be restricted if the distinctions drawn are reasonable in the light of the purpose I
served by the forum and are viewpoint neutral. Cornelius v. NAACP Legal Def & Educ. II
Fund, Inc., 473 U.S. at 806 (1985); Herbert v. Pub. Disclosure Comm 'n, 136 Wn. App. at I
I
!!
259 (2006). Jonathan Sprague does not argue the restriction of his e-mail use was
I
unreasonable. He focuses on viewpoint neutrality.
We must determine if the Spokane Valley Fire Department's preclusion of
Ii
Jonathan Sprague's discussion of topics from a religious outlook was viewpoint neutral
I
't
i
when the mental health newsletter discussed some of the same topics from a secular I
Ii
t
view. In evaluating viewpoint neutrality within the context of a nonpublic forum, two t
t
1
guiding principles emerge. First, the government may permissibly restrict content by I
f
21 i
l
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
prohibiting any speech on a given topic or subject matter. Good News Club v. Milford
Cent. Sch., 533 U.S. 98,106,121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001). The State may
be justified in reserving its forum for certain groups or for the discussion of certain
topics. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct.
2510, 132 L. Ed. 2d 700 (1995). The state may properly exclude an entire subject.
Choose Life Ill., Inc. v. White, 547 F.3d 853, 865 (7th Cir. 2008). Second, however, once
the government permits some comment on a particular subject matter or topic, it may not
regulate speech in ways that favor some viewpoints or ideas at the expense of others.
Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S. Ct.
2141, 124 L. Ed. 2d 352 (1993). Accordingly, while a speaker may be excluded from a
nonpublic forum if he wishes to address a topic not encompassed within the purpose of
the forum, the government violates the First Amendment when it denies access to a
speaker solely to suppress the point of view he espouses on an otherwise includible
subject. Cornelius, 473 U.S. at 806 (1985).
Consistent with the general rule prohibiting viewpoint discrimination, speech
discussing otherwise permissible subjects cannot be excluded on the ground that the
subject is discussed from a religious viewpoint. Good News Club v. Milford Cent. Sch.,
533 U.S. at 111-12 (2001). The government may not exclude a theistic or atheistic
perspective on the debate. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. at
831-32 (1995). There is no logical difference, for purposes of free speech, between one
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No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't (dissenting)
speaker's invocation of religion to inspire conduct or explain a topic and another's
invocation of teamwork, loyalty, morality, or patriotism to discuss a topic. Good News
Club v. Milford Cent. Sch., 533 U.S. at 111.
The test of viewpoint neutrality is the same regardless of whether the forum is a
designated or limited public forum or a nonpublic forum. Byrne v. Rutledge, 623 F .3d at
54 n.8. Therefore, when the speaker claims viewpoint discrimination, the identification
of the forum becomes irrelevant.
Jonathan Sprague principally relies on the United States Supreme Court decisions
in Good News Club v. Milford Central School and Rosenberger v. Rector & Visitors of
University of Virginia. The two opinions, together with Lamb's Chapel v. Center
Moriches Union Free School District comprise a trilogy that compels the conclusion that
the Spokane Valley Fire Department imposed viewpoint discrimination to the disfavor of
Sprague.
In Lamb's Chapel v. Center Moriches Union Free School District, the Supreme
Court confronted a New York law that permitted private citizens to use public school
premises for "social, civic, and recreational meetings" but, as construed by state courts,
prohibited such use for "religious purposes." 508 U.S. at 386. Consistent with the statute
as interpreted, the school district refused to permit an evangelical church to use school
facilities to show a James Dobson film series on family and parenting. The Supreme
Court held the school to have violated the free speech clause. While treating the school
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
premises as a nonpublic forum, the Court noted that control over access to a nonpublic
forum can be based on subject matter and speaker identity so long as the distinctions
drawn are reasonable in light of the purpose served by the forum and are viewpoint
neutral. Nevertheless, the Court concluded that the ban was not viewpoint neutral
because it impermissibly prohibited comment on otherwise permissible subject matters,
such as child rearing and family values, on the ground that the film sought to discuss
those subject matters from a religious perspective.
In Rosenberger v. Rector & Visitors of University of Virginia, the nation's highest
Court considered a university program that dispensed funds to various student groups, but
excluded from eligibility any student group engaged in "religious activities," defined as
activities that "primarily promotes or manifested a particular belief in or about a deity or
an ultimate reality." 515 U.S. at 825. Applying that rule, the university denied funding
to a student group that published a magazine focused on the "Christian Perspective at the I
!
University." 515 U.S. at 826. The Supreme Court found the denial unconstitutional. I
The restriction constituted viewpoint discrimination, rather than a legitimate content
I
l
restriction. The University did not exclude religion as a subject matter, but selected, for
disfavored treatment, student journalistic efforts with religious editorial viewpoints. In
an oft-quoted passage, the Court philosophized: I
I
Religion may be a vast area of inquiry, but it also provides, as it did :
I
here, a specific premise, a perspective, a standpoint from which a variety of f
subjects may be discussed and considered. f
i
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
Rosenberger v. Rector & Visitors of University of Va., 515 U.S. at 831.
Finally, in Good News Club v. Milford Central School, the United States Supreme
Court confronted a school district policy that allowed private use of school facilities for
"instruction in any branch of education, learning or the arts" and "social, civic and
recreational meetings and entertainment events" but excluded use "by any individual or
organization for religious purposes." 533 U.S. at 102-03. Consistent with the policy, the
school district refused to allow a private Christian organization to hold weekly
afterschool meetings that would include a Bible lesson and memorizing scripture. The
Court again invalidated the ban. The school district engaged in viewpoint discrimination
when it excluded the club from the afterschool forum because the club sought to address
a subject otherwise permitted under the rule, the teaching of morals and character, from a
religious standpoint.
Passages from some decisions imply that the government engages in viewpoint
discrimination only if the government officials that restrict the speech disagree with the
speaker's ideology or perspective. Cornelius v. NAACP Legal Def & Educ. Fund, Inc.,
473 U.S. at 812-13 (1985); Victory Through Jesus Sports Ministry Found. v. Lee's
Summit R-7 Sch. Dist., 640 F.3d 329, 336 n.4 (8th Cir. 2011); Ridley v. Mass. Bay
Transp. Auth., 390 F.3d 65, 82 (1st Cir. 2004). Jonathan Sprague presented no evidence
that the Spokane Valley Fire Department Chief or Board of Commissioners disagreed
25
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
with Sprague's religious views. The officials simply wanted to exclude all religious
speech. Despite this framing of the rule in many decisions, no decision specifically holds
that viewpoint discrimination rnust involve the government actors' disagreement with the
religious views espoused. Case after case invalidates viewpoint discrimination on the
sole ground that the government wanted a prohibition on religious speech for
administrative purposes not for the reason of stifling religion or a sect of religion.
Jonathan Sprague contends that allowing other firefighters to sell used goods and
seek recommendations for babysitters opened the bulletin board to him for purposes of
religious evangelism. According to Sprague, the fire department allowed any and all
speech, other than religious proselytizing, on the electronic bulletin board and this
practice discriminated against him in violation of the First Amendment. Sprague
contends the fire department opened a forum for all speech. I disagree. A government
agency may open a nonpublic forum to limited topics. Allowing the use of an e-mail
system to sell goods does not unlock the forum to religious indoctrination. DiLoreto v.
Downey Unified Sch. Dist. Bd. ofEduc., 196 F.3d 958,967 (9th Cir. 1999).
I instead dissent because the Spokane Valley Fire Department targeted Jonathan
Sprague's e-mail messages because of their religious content, while Sprague's messages
addressed some of the same topics bespoke by the fire department or the department's
health insurer through the e-mail system. Both the newsletters and Jonathan Sprague's
missives mentioned suicide and how to prevent suicide. A newsletter spoke of
26
No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
depression. Arguably, Sprague also mentioned coping with depression. The fire
department's topic of team building may overlap Sprague's lecture on leadership.
Unfortunately, the law gives no guidance as to what constitutes one topic or subject
matter for purposes of viewpoint discrimination. Spokane Valley Fire Department Policy
171 did not prohibit department employees from responding to APS Healthcare's
newsletters by examining the topics of teen discipline, gambling addiction, alcoholism,
depression, eating disorders, and team building from a secular perspective. Presumably
other firefighters within the fire department could have forwarded their views on the
e-mail system as to these topics from a humanistic or philosophic position. The latitude
given other workers to express their views confirms the fire department's need to grant
Jonathan Sprague the freedom to espouse resolving these ills through a relationship with
Jesus Christ.
The majority writes that the Spokane Valley Fire Department did not discipline
Jonathan Sprague because of the religious nature of his speech, but rather because
Sprague used the e-mail system for his private use and not for the business of the fire
department. This comment by the majority, however, fails to note that the fire
department allowed other private uses of the e-mail system by firefighters. The only
instance when the fire department enforced Policy 171 to preclude private use of its
property was when Sprague spoke from a religious vantage point. Moreover, Spokane
Valley Fire Department notices of discipline scolded Sprague for the religious content of
27
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
his messages, including the use of religious symbols, not the private or personal nature of
the messages.
The majority's observation also fails to recognize that, as part of its business of
operating a firefighting force, the fire department forwarded newsletters to employees for
the purpose of promoting mental health. Jonathan Sprague's advancing of employee's
mental health, through a Christian perspective, also furthered the business of the fire
department.
The Spokane Valley Fire Department relies on Berry v. Department ofSocial
Services, 447 F.3d 642 (9th Cir. 2006). Nevertheless, Berry is inapposite. Daniel Berry
worked for the employment services division of the California Department of Social
Services. His duties included assisting unemployed clients with a transition from a
welfare program to employment. He often interviewed clients. Berry's faith demanded
that he share his faith with and pray with clients during these interviews. The
Department of Social Services allowed Berry to talk about his religious faith to his
colleagues, but barred him from sharing his views and praying with clients. The Ninth
Circuit held that the department did not violate the free speech clause with this
prohibition. The court noted a fear that clients of the Department of Social Services
might ingratiate themselves with Berry by succumbing to his evangelism. The clients
might conclude the government wanted a religious conversion in order to gain state
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benefits.
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No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't (dissenting)
The Spokane Valley Fire Department has not accused Jonathan Sprague of
proselytizing residents of Spokane Valley or others who receive fire department services.
His evangelism was limited to coworkers.
First Amendment Establishment Clause
The Spokane Valley Fire Department raises as a defense the United States
Constitution's First Amendment Establishment Clause. The fire department argues that,
if it allowed Jonathan Sprague the opportunity to espouse his spiritual messages on the
department's e-mail system, the department would promote or sponsor religion and
thereby violate the Establishment Clause. Along these lines, the fire department contends
it may engage in viewpoint discrimination if it can show a compelling interest to do so
and the avoidance of establishing a religion presents a compelling state interest. The
United States Supreme Court has held that the interest of the State in avoiding an
Establishment Clause violation may be a compelling interest that justifies an abridgement
of free speech otherwise protected by the First Amendment. Widmar v. Vincent, 454 U.S.
263, 271, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981).
I disagree with the Spokane Valley Fire Department's analysis. An even-handed,
neutral right of access to the government forum does not violate the Establishment
Clause. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. at 839 (1995). The
Establishment Clause is not violated when the government treats religious speech and
other speech equally and a reasonable observer would not view the government practice
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No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
as endorsing a religion. Santa Fe Indep. Sch. Dist. v. Jane Doe, 530 U.S. 290, 302, 120
S. Ct. 2266, 147 L. Ed. 2d 295 (2000). In Lamb's Chapel v. Center Moriches Union Free
School District, 508 U.S. 384 (1993), the Supreme Court rejected the school district's
argument that allowing the showing of a religious film would be viewed by the public as
government advancement of religion when the school district opened its doors to a wide
variety of private organizations.
The Spokane Valley Fire Department presented no evidence that any employee
concluded that the fire department sponsored or approved of any message sent by
Jonathan Sprague. Sprague's persistent and aggressive evangelism would alert other
employees to the fact that the fire department did not sponsor his preaching. The fire
department's discipline of Sprague confirmed its dissociation with the message. Sprague
invited recipients the option to reject the communications.
Speech in Workplace
An urgent difference between this appeal, on the one hand, and Good News Club
v. Milford Central School, Rosenberger v. Rector & Visitors of University of Virginia,
and Lamb's Chapel v. Center Moriches Union Free School District is the fact that the
speakers in the three United States Supreme Court decisions were not employees of the
government agency. Therefore, I address this appeal from the perspective that Jonathan
Sprague was an employee of the government.
30
No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
On the one hand, the State has an interest as an employer in regulating the speech
of its employees that differs significantly from those it possesses in connection with
regulation of the speech in the citizenry in general. Pickering v. Bd. ofEduc. of Twp.
High Sch. Dist. 205, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). This is
because the government, as an employer, has an interest in promoting the efficiency of
the public services it performs through its employees. Pickering v. Bd. ofEduc., 391 U.S.
at 568. Accordingly, a government employer may impose certain restraints on the speech
of its employees that would be unconstitutional if applied to the general public. City of
San Diego v. Roe, 543 U.S. 77, 80, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004). On the
other hand, a government employee does not relinquish all First Amendment rights
otherwise enjoyed by citizens just by reason of his or her employment. City of San Diego
v. Roe, 543 U.S. at 80.
Courts apply a balancing test when confronted with constitutional challenges to
restrictions on public employee speech in the workplace. Tucker v. State of Cal. Dep 't of
Educ., 97 F.3d 1204, 1210-11 (9th Cir. 1996). Under Pickering v. Board ofEducation,
391 U.S. at 568 (1968), the United States Supreme Court requires a court evaluating
restraints on a public employee's speech to balance the interests of the employee, as a
citizen, in commenting on matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees and the State's legitimate administrative interests.
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
The Pickering balancing test applies to an employee's religious speech. Berry v.
Dep 't ofSoc. Servs., 447 F.3d at 650 (9th Cir. 2006). A topic of public concern, for
purposes of Pickering balancing, includes religion.
The government holds the burden to establish that its legitimate administrative
interests outweigh the employee's First Amendment rights. Clairmont v. Sound Pub.
Health, 632 F.3d 1091, 1106-07 (9th Cir. 2011). To prove an employee's speech
interfered with working relationships, the government must demonstrate actual, material,
and substantial disruption, or reasonable predictions of disruptions in the workplace.
Clairmont v. Sound Pub. Health, 632 F .3d at 1107.
The Spokane Valley Fire Department had no compelling, let alone important,
interest in restricting Jonathan Sprague's speech. The fire department did not expose
itself to violation of the Establishment Clause by tolerating Sprague's evangelism.
Sprague did not increase the costs of the fire department's e-mail system by the sending
of his messages.
The government may prohibit employee speech on its grounds that it is disruptive
to business. United States v. Kokinda, 497 U.S. 720, 733, 110 S. Ct. 3115, 111 L. Ed. 2d
571 (1990). Sprague's speech caused no disruption in the workplace other than the
administrative hassle of sanctioning and firing Sprague. Nevertheless, Sprague should
not be charged with this disruption if his speech was unlawfully restricted.
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No. 33352-3-III
Sprague v. Spokane Valley Fire Dep 't (dissenting)
We do not know the time of day when Jonathan Sprague sent his messages. We
know that firefighters typically work twenty-four hour shifts, during which they have free
time. The fire department does not complain that the e-mail messages interfered in
Sprague's performance as an employee or the performance of the recipients of his
message.
Tucker v. State of California Department ofEducation, 97 F.3d 1204 (9th Cir.
1996) is analogous. The state Department of Education promulgated a rule that
prohibited employees from engaging in any oral or written religious advocacy in the
workplace. The Ninth Circuit Court of Appeals held the rule violative of employees'
First Amendment rights. The court noted that the department provided no evidence of a
disruption in the workplace by limited proselytizing. Time spent by supervisors in
enforcing the rule could not be counted toward calculating work disruption. The
department presented no evidence that coemployees complained about one employee's
proselytizing.
One might find it odd that a government entity must permit an employee to use the
government's e-inail system to espouse religious messages. Nevertheless, in other
decisions, the speaker, whether an employee of the government or member of the public,
used government property. In Lamb's Chapel v. Center Moriches Union Free School
District, 508 U.S. 384 (1993), the Supreme Court permitted religious society members to
walk in government corridors, occupy a government room, and repose in government
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No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
chairs to view a religious film. Presumably the religious entity even used a film screen
owned by the government. In Rosenberger v. Rector & Visitors of University of Virginia,
515 U.S. 819 (1995), the nation's highest Court directed the government to fund a
religious publication.
The Spokane Valley Fire Department observes that it did not comment or opine on
the topics discussed within APS Healthcare's newsletters. The fire department further
observes that the EAP newsletters corresponded with the fire department's benefits
package, and, in turn, the newsletters were related to the fire department's business. I
find these observations of no help to the fire department. Whether or not the fire
department prepared or merely forwarded the newsletters prepared by another entity was
irrelevant. The fire department allowed mention of topics, on which Jonathan Sprague
later touched. As already mentioned, if steps advocated by APS Healthcare could
improve the fire department's work environment, arguably Jonathan Sprague's
recommendations from a religious standpoint could benefit the workplace.
Disposal of Appeal
I would reverse the summary judgment granted the Spokane Valley Fire
Department and remand the case to the superior court for further proceedings. The
record shows that many of Jonathan Sprague's religious expressions went beyond
responding to the APS Healthcare newsletters. Sprague wrote about interacting with
nominal Christians, choosing a religious logo, and health supplements, subject matter
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No. 33352-3-111
Sprague v. Spokane Valley Fire Dep 't ( dissenting)
never mentioned in the newsletters. The trier of fact should determine the extent that
Sprague's missives overlapped topics in the APS Healthcare newsletters and the
magnitude that Sprague's preaching did not address newsletter subjects. The trier of fact
should also determine whether or not the fire department would have terminated
Sprague's employment based on the noncorresponding messages and whether such
termination would be warranted. If the trier of fact determines that Sprague's termination
from employment was not otherwise justified, it should further determine what, if any,
damages Sprague suffered from the viewpoint discrimination. I respectfully dissent:
Fearing, C.J.
35
Jonathan J. Sprague v. Spokane Valley Fire Department
Court: Court of Appeals of Washington
Date filed: 2016-09-21
Citations: 196 Wash. App. 21, 381 P.3d 1259
Copy CitationsCombined Opinion