F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 23 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
GREGORIO MESA,
Plaintiff-Appellant,
v. No. 98-2254
ANTHONY WHITE, District
Attorney, individually and in his
official capacity; MANUEL SERNA,
County Commission Chairman,
individually and in his official
capacity; ZEKE SANTA MARIA,
County Commissioner, individually
and in his official capacity; CARL
SCHOLL, County Commissioner,
individually and in his official
capacity; STEVE AMLAND,
Assistant District Attorney,
individually and in his official
capacity,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-96-418-HB/LCS)
Submitted on the briefs:
Gregorio Mesa, pro se.
Garnett R. Burks, Jr., of Sage and Burks, P.C., Las Cruces, New Mexico, and
Timothy S. Hale, of Riley, Shane & Hale, P.A., Albuquerque, New Mexico, for
Defendants-Appellees.
Before HENRY , BARRETT , and PORFILIO , Circuit Judges.
BARRETT , Senior Circuit Judge.
Plaintiff Gregorio Mesa appeals from the district court’s grant of summary
judgment in defendants’ favor on Mesa’s claim under 42 U.S.C. § 1983 alleging
they violated his First Amendment right to speak at a public meeting. We review
a decision granting summary judgment de novo, using the same legal standard
applicable in the district court. See Anderson v. Coors Brewing Co. , 181 F.3d
1171, 1175 (10th Cir. 1999). Moreover, “[i]n cases involving the First
Amendment, the de novo standard is appropriate . . . for the further reason that
. . . 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.” Horstkoetter v. Department
of Pub. Safety , 159 F.3d 1265, 1270 (10th Cir. 1998) (internal quotations
omitted). 1
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
(continued...)
-2-
I.
Because this matter comes to us on appeal from a grant of summary
judgment, we present the facts in the light most favorable to Mesa. Mesa is a
former county commissioner of Grant County, New Mexico. In 1993, while he
was a commissioner, the county commission voted to terminate the employment of
Luis Cardoza, the county manager. Mesa voted for and was strongly in favor of
Cardoza’s termination. In January 1995, defendants Manuel Serna and Zeke
Santa Maria took office as commissioners, and the commission voted to fire the
new county manager and rehire Cardoza as interim county manager. Mesa, who
was no longer a commissioner, asked to speak during the public comment period
of the next commission meeting on February 16, and his written request stated
that he wanted to discuss “Luis Cardoza.” He was placed on the meeting agenda,
with his topic of discussion listed as “presentation regarding Luis Cardoza.”
Meanwhile, on February 13, defendant Steve Amland, an assistant district
attorney, met with Cardoza, who, as interim county manager, could approve or
disapprove agenda items. They discussed whether Mesa’s request to speak was
1
(...continued)
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
-3-
too broad and vague under County Resolution No. 93-11-18, requiring in relevant
part as follows:
The matter to be presented [for an item to be included on the meeting
agenda] must be stated with sufficient specificity so as to apprise the
Commissioners and allow them to gather any information necessary
to discuss the matter. No person shall be placed on the agenda who
does not provide a specific matter to be presented.
R. Vol. I, Doc. 63, Ex. B. Following further research on the issue, Amland
concluded that Mesa’s request was too vague and broad. He also concluded that
the subject Mesa wished to discuss could potentially fall under the categories of
“personnel” (apparently because the commissioners were considering rehiring
Cardoza on a permanent basis) and “litigation” (apparently because Cardoza had
claims against the county related to his termination), which he thought should be
discussed at a closed meeting as provided by New Mexico’s Open Meetings Act,
N.M. Stat. Ann. § 10-15-1 (Michie 1978). He informed Cardoza of the results of
his research and recommended to the commissioners that they not allow Mesa to
speak at the February 16 meeting, although he also warned them that Mesa might
have a constitutional right to speak. Although Mesa had sent the commissioners a
letter on February 10 stating he would file civil and criminal charges against them
if they prohibited him from speaking, the commissioners accepted Amland’s
recommendation and prohibited Mesa from speaking at the meeting.
-4-
Mesa then filed this § 1983 action alleging that by prohibiting him from
speaking at the meeting, defendants had violated his First Amendment right of
free speech. Amland and defendant Anthony White, the district attorney and
Amland’s supervisor, jointly moved for summary judgment, Amland on the
ground of qualified immunity and White on the grounds that there was no
evidence he failed to train Amland (as Mesa alleged), and that he was not
involved in denying Mesa the opportunity to speak. Amland and White also
moved for dismissal of the claims against them in their official capacities on
Eleventh Amendment immunity grounds. The three defendant commissioners
moved for summary judgment on the basis of qualified immunity. Mesa opposed
all of these motions, but did not file any dispositive motions himself.
The district court granted Amland and White’s motion to dismiss the
official capacity claim against them on Eleventh Amendment grounds, and Mesa
does not challenge this ruling on appeal. The district court also granted summary
judgment to all defendants, though not specifically on the basis of qualified
immunity. The court held that there was no First Amendment violation because
defendants’ restriction of Mesa’s speech was a permissible, content-neutral time,
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place and manner restriction. See Perry Educ. Ass’n v. Perry Local Educators’
Ass’n , 460 U.S. 37, 45 (1983). 2
On appeal, Mesa raises two issues: (1) the New Mexico Open Meetings Act
did not form a legitimate basis for defendants’ restriction on his speech; and
(2) there is a disputed issue of fact as to whether defendants prevented him from
speaking in a public forum based on his viewpoint. 3
II.
Courts use a three-step framework for analyzing the constitutional
protections afforded to free speech rights. See Cornelius v. NAACP Legal
2
In granting summary judgment, the district court discussed Amland’s
actions, concluded he did not violate Mesa’s rights, and then concluded the
defendant commissioners did not violate Mesa’s rights by relying on Amland’s
advice. The court did not mention White.
Because defendants’ allegedly unconstitutional actions generally are
interrelated, on appeal, we refer to them jointly and do not attempt to sort out
possible individual liability or nonliability. We also do not address White’s
separate argument that he should not be liable for failure to train since the district
court never addressed that issue.
3
Mesa also contends on appeal that the county resolution and the Open
Meetings Act are unconstitutional facially and as applied to him as prior restraints
on speech or content-based regulations of speech. We will not consider these
issues because he does not present any argument in support of them, instead only
incorporating by reference his arguments raised in the district court.
“[A]rguments not set forth fully in the opening brief are waived . . . .” Gaines-
Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613, 623-24 (10th Cir. 1998); see
also Graphic Controls Corp. v. Utah Med. Prods., Inc. , 149 F.3d 1382, 1385
(Fed. Cir. 1998).
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Defense & Educ. Fund, Inc. , 473 U.S. 788, 797 (1985); Summum v. Callaghan ,
130 F.3d 906, 913 (10th Cir. 1997). The first step is to determine whether Mesa’s
claim involves protected speech, and there is no question that it does. The second
step is to determine what type of forum the county commission meeting is because
that determination defines in large part the extent to which a government may
limit speech in that forum and establishes the standard for judicial review; i.e.,
whether a heightened or reasonableness standard applies. See id. The district
court held that the meeting was a designated public forum, and none of the parties
disputes that determination. We therefore examine defendants’ regulation of
Mesa’s speech under a heightened scrutiny standard. The district court noted the
two possible heightened standards as follows:
In this case, the Commission designated the February 16, 1996
meeting a public forum when the Commission intentionally opened it
to the public. Thus, by creating this forum, the Commission became
bound by the same standards that apply in the case of a traditional
public forum. As the Supreme Court held in Perry , content-neutral
time, place and manner restrictions are permissible if they are
narrowly drawn to achieve a significant governmental interest and if
they allow communication through other channels. [460 U.S. at 45.]
However, content-based exclusions must be narrowly tailored to
effectuate a compelling governmental interest. Id.
District court order at 8; see also Turner Broadcasting Sys., Inc. v. FCC , 512 U.S.
622, 641-42 (1994) (explaining reasons for different levels of heightened
scrutiny).
-7-
The final step is to determine whether the justifications for prohibiting
Mesa’s speech at the meeting satisfy the requisite standard. This step actually has
two subparts. First, courts must determine whether the regulation was content
based or content neutral, which establishes whether a strict scrutiny or
intermediate standard of review is applied. See Perry Educ. Ass’n , 460 U.S. at
45. The district court held that the restriction on Mesa’s speech was content
neutral and applied the intermediate standard of scrutiny, requiring only that the
restriction serve a significant government interest. Because Mesa does not
properly challenge the court’s determination that the restriction was content
neutral, we apply that standard as well. 4
Then we examine the interests
4
Defendants prohibited Mesa from speaking at the meeting because he might
talk about personnel and litigation matters involving Luis Cardoza. (As discussed
later, neither defendants nor the district court ultimately relied on the alleged lack
of specificity as the content-neutral reason for prohibiting Mesa’s speech.)
Although this would appear to be a content-based restriction, the district court
seemed to have two reasons for concluding it was not. As part of its discussion of
significant government interests, the court noted that “‘public bodies may confine
their meetings to specified subject matter and may hold nonpublic sessions to
transact business.’” District court order at 11 (quoting City of Madison, Joint Sch.
Dist. No. 8 v. Wisconsin Employment Relations Comm’n , 429 U.S. 167, 176 n.8
(1976)). We question whether the City of Madison ’s broad dicta would apply to
this situation due to the lack of notice of any subject-matter limitations. The
commission meeting was an open meeting with no previously announced
restrictions on topics of discussion. Personnel matters, at least, had been
discussed at prior meetings without any indication that that topic was out of
bounds. Indeed, there is no evidence that any limitation on subject matter existed
until after Mesa’s planned presentation was placed on the original meeting
agenda.
(continued...)
-8-
defendants contend are served by the regulation to see whether they are
significant. See Summum , 130 F.3d at 913.
A.
4
(...continued)
The district court also concluded that defendants’ actions were content
neutral because Mesa had not shown that their actions “resulted from disapproval
of Plaintiff’s message.” District court order at 10. Although as we discuss later,
we disagree with the district court regarding whether Mesa demonstrated
disapproval of his message, for now we note only that the district court seems to
have confused content-based regulation with viewpoint discrimination.
Viewpoint discrimination is a form of content discrimination, but not all content-
based regulation is viewpoint regulation. As one commentator has explained,
[a] content-based regulation either explicitly or implicitly
presumes to regulate speech on the basis of the substance of the
message. A viewpoint-based law goes beyond mere content-based
discrimination and regulates speech based upon agreement or
disagreement with the particular position the speaker wishes to
express. Viewpoint discrimination is a subset of content
discrimination; all viewpoint discrimination is first content
discrimination, but not all content discrimination is viewpoint
discrimination.
1 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 3:9 (1998)
(footnotes omitted); see also Baugh v. Judicial Inquiry & Review Comm’n , 907
F.2d 440, 444 (4th Cir. 1990). Thus, neither disagreement with content nor
improper censorial motive is necessary for regulation of speech to be content
based. See Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims
Bd. , 502 U.S. 105, 117 (1991).
Because Mesa did not properly raise the issue of whether the prohibition on
his speech was content neutral, and because we conclude the prohibition fails to
pass constitutional muster under even the lower scrutiny standard applicable to
content-neutral speech, we need not decide whether the district court correctly
found the regulation of Mesa’s speech content neutral.
-9-
The significant interest posited by defendants and accepted by the district
court was the potential discussion of a “personnel or litigation matter involving
Grant County.” District court’s order at 11. We cannot agree that defendants
demonstrated that this is a significant government interest. 5
The basis for defendants’ stated interest in preventing Mesa’s speech on
personnel and litigation matters is two exceptions to New Mexico’s Open
Meetings Act, N.M. Stat. Ann. § 10-15-1 (Michie 1978), which generally requires
that the commission’s meetings be open to the public. Exception H(2) applies to
“limited personnel matters,” which is defined to mean “the discussion of hiring,
promotion, demotion, dismissal, assignment or resignation of or the investigation
or consideration of complaints or charges against any individual public employee;
provided further that this subsection is not to be construed as to exempt final
actions on personnel from being taken at open public meetings.” Exception H(7)
applies to “meetings subject to the attorney-client privilege pertaining to
threatened or pending litigation in which the public body is or may become a
participant.”
5
This is a legal rather than factual question. See White House Vigil for the
ERA Comm. v. Clark , 746 F.2d 1518, 1528-29 (D.C. Cir. 1984); cf. Revo v.
Disciplinary Bd. of the Supreme Court , 106 F.3d 929, 932 (10th Cir. 1997)
(appellate court makes independent review of record in First Amendment cases,
including de novo review of issues that in other settings would be considered
factual).
-10-
The commissioners may well have an interest in discussing among
themselves sensitive personnel or litigation matters, and the exceptions allow
them to do that in certain situations. It is difficult to see, however, how that
interest translates into a significant interest in restricting the public’s ability to
present its views on personnel or litigation matters at a public meeting. The
performance of public employees and the handling of employment-related
litigation can be important matters of public concern. 6
We do not read the Open
Meetings Act to require the commissioners to discuss, or allow discussion of,
such matters only at closed meetings. It does not require them to say or do
anything in response to a public comment on such matters at an open meeting--
they can just sit and listen and then discuss matters falling within the exceptions
among themselves at a closed meeting. In fact, the Act does not require the
commissioners to allow the public to speak at its meetings, but instead, only
requires them to allow the public to “attend and listen.” See § 10-15-1.A. Thus,
6
Indeed, Mesa wanted to present his views on these matters of public
concern directly to the political body responsible for them. “Whatever
differences may exist about interpretations of the First Amendment, there is
practically universal agreement that a major purpose of that Amendment was to
protect the free discussion of governmental affairs. For speech concerning public
affairs is more than self-expression; it is the essence of self-government.” Burson
v. Freeman , 504 U.S. 191, 196 (1992) (quotations omitted); see also FCC v.
League of Women Voters , 468 U.S. 364, 381 (1984) (“[E]xpression on public
issues has always rested on the highest rung of the hierarchy of First Amendment
values.”) (quotation omitted).
-11-
the Act itself did not turn the commission meeting into a designated public forum.
That status apparently resulted from the commission’s intentional practice and
tradition of allowing public comment at the meetings.
In short, the Open Meetings Act seems irrelevant to the question of what
interest is served by restricting the public’s right to speak on personnel and
litigation matters at a meeting open to the public. 7
We therefore conclude that
defendants failed to identify a significant government interest justifying their
prohibition of Mesa’s speech at the commission meeting, and that the district
court erred in granting summary judgment in defendants’ favor.
7
Defendant Amland seems to have recognized the problems with restricting
Mesa’s speech on this basis, for in his legal memo to the commissioners regarding
Mesa’s agenda item, he stated:
If Mr. Mesa wishes to bring up personnel matters or even matters
concerning present or threatened litigation involving the County, he
may have a constitutional right to do so since the Commission cannot
regulate the content of speech when it allows citizens to participate
in meetings. Of course, to the extent that a citizen’s subject matter
concerns litigation involving the County, I would advise the
Commission itself not to discuss this matter in open session.
Appellees’ App. at AA-35.
-12-
B.
Except possibly with respect to topics such as obscenity, viewpoint
discrimination is almost universally condemned and rarely passes constitutional
scrutiny.
The government bears a particularly heavy burden in justifying
viewpoint-based restrictions in designated public forums. Viewpoint
discrimination is an egregious form of content discrimination.
Content-based restrictions are subject to strict scrutiny. Viewpoint-
based restrictions receive even more critical judicial treatment.
Church on the Rock v. City of Albuquerque , 84 F.3d 1273, 1279 (10th Cir. 1996)
(quotations and citations omitted). Although viewpoint discrimination was the
focus of Mesa’s claim and argument in the district court, the court never
mentioned it in granting summary judgment against Mesa. We conclude the
evidence supports an inference, sufficient to withstand summary judgment, that
the restriction on Mesa’s speech resulted from viewpoint discrimination.
Minutes of commission meetings and other evidence support the inference,
if not the fact, that everyone relevant to this case knew who Luis Cardoza was and
why Mesa would want to talk about him at a commission meeting. At a
commission meeting in January 1993, when Mesa was a commissioner, the
commission voted 2-1 to terminate Cardoza as county manager. Mesa was
strongly in favor of Cardoza’s termination. Defendant Serna, who had just been
defeated in his reelection bid for commissioner, supported Cardoza, as did a
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number of other individuals, and the issue was a hot topic at subsequent meetings
through September 1993. At a number of these meetings, Serna spoke, or tried to
speak but was sometimes prevented by the commission, 8
in support of Cardoza
and questioned the commission’s decision to terminate him. Serna and Santa
Maria signed a petition to reinstate Cardoza. Mesa wrote newspaper articles, in
the El Reportero with a circulation of about 1000 copies, critical of Cardoza, and
at one meeting he told Serna to go read El Reportero , apparently to find out why
they terminated Cardoza.
In January 1995, apparently at their first meeting after having been elected
commissioners, Serna and Santa Maria passed motions (on 2-1 votes) terminating
the county manager and hiring Luis Cardoza as interim county manager. Mesa,
who was no longer on the commission, then submitted his proposed agenda item
regarding “Luis Cardoza,” and he was initially placed on the agenda for the next
meeting. Defendants ostensibly removed him from the agenda because his topic
was not specific enough. However, they never asked him to be more specific, and
in fact, were concerned that he might talk about personnel and litigation matters
involving Cardoza, showing that they knew the likely content of his speech
despite his alleged lack of specificity. (Mesa stated at his deposition that he was
8
Ironically, Serna later wrote to the Albuquerque office of the American
Civil Liberties Union requesting an investigation into the commission’s denial of
the public’s right to speak at meetings, mentioning Mesa by name.
-14-
going to be critical of Cardoza’s past performance.) With respect to defendants’
contention that Mesa was not specific enough, Mesa presented several examples
of previous agenda items that he contends were no more specific. The defendants
(and the district court) do not challenge Mesa’s contention that these topics are
equally nonspecific--they contend only that these topics did not involve personnel
or litigation matters. See Appellees’ Br. at 10.
Viewing the evidence and drawing reasonable inferences in Mesa’s favor,
we conclude that (1) defendants knew what Mesa planned to say by stating he
wanted to talk about Luis Cardoza, (2) they knew Mesa would be critical of
Cardoza and of them, since they supported Cardoza, and (3) stating that his
agenda item was not specific enough was a pretext for viewpoint discrimination.
Additionally, the other express reasons for not allowing Mesa to speak were of
such recent vintage--nonexistent until Mesa said he wanted to talk about
Cardoza--and such a break with past traditions--Serna and others had been
allowed to talk as members of the public about Cardoza’s firing--that they further
support a finding of pretext. We thus conclude that this evidence of viewpoint
discrimination provides another basis for rejecting defendants’ summary judgment
motion.
III .
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In summary, we conclude that on the record before us, defendants have
failed to show a significant government interest in prohibiting Mesa’s speech at
the commission meeting and that there is evidence they impermissibly restricted
Mesa’s speech based on his viewpoint. The district court erred in granting
summary judgment in their favor. Therefore, the judgment of the district court is
REVERSED, and the case is REMANDED for proceedings consistent with this
opinion.
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Mesa v. White
Court: Court of Appeals for the Tenth Circuit
Date filed: 1999-11-23
Citations: 197 F.3d 1041
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