Van Deelen v. Johnson

F I L E D
United States Court of Appeals
Tenth Circuit

August 14, 2007
PU BL ISH
Elisabeth A. Shumaker
UNITED STATES COURT O F APPEALS Clerk of Court

TENTH CIRCUIT

M ICHA EL D . V A N D EELEN ,

Plaintiff-Appellant,
v.

M AR ION JOH NSO N; STEVEN
M ILES; DA LE FLOR Y; KEN NETH No. 06-3305
FA NGOHR; KEN M CGOVERN; and
BO AR D O F COU NTY
C OM M ISSIO N ER S O F D O U G LAS
CO UNTY , KANSAS,

Defendants-Appellees.

Appeal from the United States District Court
for the District of K ansas
(D .C . No. 05-CV-4039-SAC)

M ichael D. Van Deelen, filed a brief pro se.

Nicholas P. Heinke of Hogan & Hartson, Denver, Colorado, for Plaintiff-
Appellant.

Peter T. M aharry (M ichael K. Seck and Daniel P. Goldberg on the brief), of
Fisher, Patterson, Sayler & Smith, Overland Park, Kansas, for Defendants-
Appellees.

Before H A R TZ, M cKA Y , and GORSUCH, Circuit Judges.

G O R SU CH, Circuit Judge.
 M ichael D. Van Deelen alleges that the Board of County Commissioners of

Douglas County, Kansas, as well as five county officials, violated his First

Amendment rights by seeking to threaten and intimidate him into dropping

various tax assessment challenges. The United States District Court for the

District of Kansas, in reliance on a number of its prior holdings, granted summary

judgment for the defendants on the basis that M r. Van Deelen’s tax challenge was

not a matter of “public concern.” W e write today to reaffirm that the

constitutionally enumerated right of a private citizen to petition the government

for the redress of grievances does not pick and choose its causes but extends to

matters great and small, public and private. W hatever the public significance or

merit of M r. Van D eelen’s petitions, they enjoy the protections of the First

Amendment. Accordingly, we reverse and remand.

I

A

Viewing the facts pertinent to the current dispute, as we must, in the light

most favorable to M r. Van D eelen as the party opposing summary judgment, 1 his

1
Additionally, all of M r. Van Deelen’s filings in the district court and this
court were prepared pro se and are thus entitled to a solicitous construction.
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007); see also Riddle v. M ondragon,
83 F.3d 1197, 1201-02 (10th Cir. 1996). M r. Van Deelen w as, however,
(continued...)

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tangle with the County began in 1991. That year, M r. Van Deelen purchased a

home that, shortly after the transaction settled, suffered from repeated flooding.

After a particularly severe episode in 1993, M r. Van Deelen sued the County and

the City of Eudora, in which the home is located, complaining that a nearby

culvert was undersized and contributing to the flooding. The County and City

eventually paid him a sum for his damages and replaced the culvert with a bridge;

thereafter, M r. Van Deelen dismissed his suit.

Beginning in 2000, M r. Van Deelen believed that the County’s annual

increases in the assessed value of his home unfairly overstated his home’s true

market value, in part by inadequately accounting for what he perceived to be a

continuing threat of flooding. During the next several years, he unsuccessfully

appealed the County’s assessments at approximately eight different administrative

hearings. In the course of these appeals, M r. Van Deelen interacted frequently

with both M arion Johnson, the County Appraiser, and Steven M iles, an appraiser

in M r. Johnson’s office. Bad blood soon set in.

In one 2002 hearing, M r. Van Deelen allegedly made “accusatory”and

“derogatory” remarks towards M r. M iles that prompted the hearing officer to

discontinue the proceedings. In spite of this incident, M r. M iles agreed to meet

again with M r. Van Deelen the following week at the Appraiser’s office, located

1
(...continued)
represented at oral argument before us by court-appointed counsel, Nicholas P.
Heinke, whom we wish to thank for his generous and able pro bono advocacy.

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in the old Douglas County Courthouse. Before that meeting, however, M r. M iles

expressed to M r. Johnson his concern about M r. Van Deelen’s behavior; in turn,

M r. Johnson asked the Sheriff’s Department to assign one of its deputies to be

available outside the Appraiser’s office during the meeting. As it indeed turned

out, when M r. Van Deelen and M r. M iles met at the appointed time, M r. Johnson,

who was close by M r. M iles’s office, perceived the tone to grow increasingly loud

and disruptive. Eventually, M r. Johnson decided to interrupt and terminate the

meeting, and did so with the assistance of Sergeant Kenneth Fangohr, the member

of the Sheriff’s Department assigned to provide the requested security.

M r. Van Deelen continued to dispute the County’s tax assessments and, in

February 2005, filed suit in federal court, naming as defendants M r. M iles, M r.

Johnson, and the County, and alleging, among other things, unconstitutional

property valuations and perjury by M r. M iles in his testimony at administrative

hearings. Not long after in M arch 2005, the County reduced by $5,000 the

assessed value of M r. Van Deelen’s home, and M r. Van Deelen dismissed the

suit. 2

But this was hardly the end of the matter. M r. Van Deelen pursued yet

another tax appeal with the Appraiser’s office in late M arch 2005, even after the

resolution of his federal lawsuit. A meeting was scheduled, and M r. Johnson

2
W hile M r. Van Deelen claims the County reduced the assessment in
response to his lawsuit, defendants contend that the reduction was a result of
additional information provided to the Appraiser’s office by M r. Van Deelen.

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again requested that someone from the Sheriff’s office attend; this time, however,

he asked the Sheriff’s representative to sit inside, not outside, the meeting room.

Because Sergeant Fangohr was unavailable that day, the job went to Deputy Dale

Flory. W hile defendants submit that the deputy was present simply to ensure that

the meeting did not get out of control, M r. Van Deelen alleges that the deputy’s

attendance was calculated to intimidate him in retaliation for his lawsuits and

appeals and to deter him from bringing future appeals.

Indeed, M r. Van Deelen alleges that, upon his arrival at the meeting, M r.

M iles stated that “[t]oday you get payback for suing us.” M r. Van Deelen further

alleges that Deputy Flory pulled his chair right next to M r. Van Deelen,

deliberately “bumping” M r. Van Deelen’s arm and leg with his own in the

process. M r. Van Deelen asserts that the deputy’s presence surprised and

frightened him. W hen he asked why the deputy was there, M r. M iles responded

that Deputy Flory had come at the request of M r. Johnson based upon plaintiff’s

prior behavior. M r. Van Deelen alleges that Deputy Flory repeatedly and

intentionally “bumped” him throughout the meeting, and that when M r. Van

Deelen looked up, Deputy Flory held his hand on his gun and made menacing

looks. M r. Van Deelen also alleges that M r. M iles “brow beat” him throughout

the meeting by scowling and staring. After “an exchange of words,” including

threats by M r. V an Deelen to file another lawsuit, M r. M iles ended the meeting.

M r. V an Deelen contends that Deputy Flory then stood up and told him to leave.

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During this exchange, Deputy Flory also allegedly poked M r. Van D eelen’s chest

with his finger and stated: “Don’t come back. Johnson and M iles are mad

because you sued them. They told me to do whatever necessary to put a scare

into you. If you show up for another tax appeal hearing, I might have to shoot

you.” Deputy Flory then told M r. Van Deelen to leave immediately, not allowing

him to collect his tax papers.

M r. Van Deelen claims this episode has deterred him from his continued

pursuit of tax appeals at the Appraiser’s office. 3 As evidence, he presents a letter

he sent to the Kansas Board of Tax Appeals in November 2005, cancelling his

requested hearing and citing the threat of violence by the County as the reason for

doing so. Seeking compensation for his alleged injuries, as well as injunctive and

declaratory relief, M r. Van D eelen brought suit in federal district court against

M r. Johnson, M r. M iles, Deputy Flory, Sergeant Fangohr, Sheriff Ken M cGovern,

and the County Board of Commissioners. M r. Van Deelen’s suit alleges various

violations of the First and Fourteenth Amendments, actionable by means of 42

U.S.C. § 1983, as well as various violations of state tort law.

B

In due course, the district court entertained and granted defendants’ motion

for summary judgment with respect to all of M r. Van Deelen’s federal

3
M r. Van Deelen does not contest, however, that he has gone back to the
courthouse for other non-tax-related business.

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constitutional claims. W ith respect to his First Amendment claims, the district

court held, inter alia, that M r. Van Deelen’s pursuit of legal and administrative

remedies against the County relating to his tax assessments failed to qualify as

protected constitutional conduct because it did not implicate matters of public

concern and instead “aimed only at advancing [his] financial interest and

achieving only redress for [his] private grievances.” Dist. Ct. Op. 12. The

district court also disposed of M r. Van D eelen’s Fourteenth Amendment claims,

finding a lack of evidence of any substantive or procedural due process violation

and no basis for asserting a violation of equal protection; it similarly found no

merit to M r. V an Deelen’s invasion of privacy and § 1983 conspiracy claims.

Having thus extinguished his federal claims, the court dismissed without

prejudice M r. Van Deelen’s remaining pendent state law claims pursuant to 28

U.S.C. § 1367(c).

M r. Van Deelen filed a timely notice of appeal seeking reversal of the

district court’s disposition on all but two matters: he does not challenge the

court’s dismissal of the equal protection and invasion of privacy claims. M r. Van

Deelen further conceded at oral argument that his appeal on First Amendment

grounds pertains only to M r. M iles, M r. Johnson, and Deputy Flory, and that he

does not appeal the district court’s conclusion that he lacks evidence of retaliatory

conduct by Sergeant Fangohr or Sheriff M cGovern. Our primary and initial focus

in this case, thus, concerns M r. Van Deelen’s claim that M r. M iles, M r. Johnson,

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and Deputy Flory unlawfully retaliated against him for engaging in protected First

Amendment petitioning activity.

II

The promise of self-government depends on the liberty of citizens to

petition the government for the redress of their grievances. W hen public officials

feel free to wield the powers of their office as weapons against those who

question their decisions, they do damage not merely to the citizen in their sights

but also to the First Amendment liberties and the promise of equal treatment

essential to the continuity of our democratic enterprise. “The very idea of a

government, republican in form, implies a right on the part of its citizens . . . to

petition for a redress of grievances.” United States v. Cruikshank, 92 U.S. 542,

552 (1875); see also United M ine W orkers v. Ill. State Bar Ass’n, 389 U.S. 217,

222 (1967) (The right to petition is “among the most precious of the liberties

safeguarded by the B ill of Rights.”).

To make out a claim of unlaw ful retaliation by government officials in

response to the exercise of his or her First Amendment right to petition, we have

indicated three elements must be present. The plaintiff must show that (a) he or

she was engaged in constitutionally protected activity; (b) the defendant’s actions

caused the plaintiff to suffer an injury that would chill a person of ordinary

firmness from continuing to engage in that activity; and (c) the defendant’s

adverse action was substantially motivated as a response to the plaintiff’s exercise

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of constitutionally protected conduct. See W orrell v. Henry, 219 F.3d 1197, 1212

(10th Cir. 2000). W e address each element in turn.

A

The defendants argue vigorously that M r. Van Deelen’s lawsuits and

administrative appeals do not amount to “constitutionally protected activity” and

thus fail the first prong of the Worrell test. This is so, defendants submit, because

M r. Van Deelen’s activity involved only private tax disputes and not issues of

“public concern.” W e cannot agree.

One might well (as defendants do) question the merits of M r. Van Deelen’s

petitions or their significance, arising as they do from an ongoing and

increasingly personal spat with County tax officials. But a private citizen

exercises a constitutionally protected First A mendment right anytime he or she

petitions the government for redress; the petitioning clause of the First

Amendment does not pick and choose its causes. The minor and questionable,

along with the mighty and consequential, are all embraced. This is, of course, not

to say that the “public concern” test proffered by defendants and adopted by the

district court has no place in the law of the First Amendment. Rather, the test

quite properly applies to claims brought by government employees – but its scope

reaches no further.

Because of the government’s need to maintain an efficient workplace in aid

of the public’s business, the Supreme Court has long recognized that “the State

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has interests as an employer in regulating the speech of its employees that differ

significantly from those it possesses in connection with regulation of the speech

of the citizenry in general.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

Accordingly, the Court has held, the government may in some instances employ

constraints on the speech and activities of employees that would be

unconstitutional if applied to private citizens. 4 Still, even in the public workplace

context, the Supreme Court has sought to balance the employees’ rights as

citizens with the government’s interests as employer; because expression relating

to issues of public concern “occupies the highest rung of the hierarchy of First

Amendment values, and is entitled to special protection,” Connick v. M yers, 461

U.S. 138, 145 (1983) (internal quotation marks omitted), speech affecting such

matters remains protected even for government employees. 5

4
See, e.g., Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006)
(“Government employers, like private employers, need a significant degree of
control over their employees’ w ords and actions; w ithout it, there would be little
chance for the efficient provision of public services.”); Connick v. M yers, 461
U.S. 138, 146 (1983) (“[G]overnment officials should enjoy wide latitude in
managing their offices, without intrusive oversight by the judiciary in the name of
the First Amendment.”); Waters v. Churchill, 511 U.S. 661, 672 (1994); City of
San Diego v. Roe, 543 U.S. 77, 80-84 (2004).
5
The Supreme Court has also recently indicated that, to merit First
Amendment protection, a public employee’s speech, though related to matters of
public concern, must not have been made pursuant to his or her official duties.
See Garcetti, 126 S. Ct. at 1959-62; see also Casey v. West Las Vegas Ind. Sch.
Dist., 473 F.3d 1323, 1328 (10th Cir. 2007).

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 The public concern test, then, was meant to form a sphere of protected

activity for public employees, not a constraining noose around the speech of

private citizens. To apply the public concern test outside the public employment

setting would require us to rend it from its animating rationale and original

context. Admittedly, defendants point us to a considerable line of cases from the

District of Kansas appearing to do just this. 6 But these holdings are neither

compelled by nor consistent with the First Amendment. As we have explained,

“it is the government’s pow ers and responsibilities as an employer that warrant

restrictions on speech,” including the public concern requirement, “that would not

be justified in other contexts.” Worrell, 219 F.3d at 1210 (emphases added). And

as our sister circuits have put the point, “[t]he story of the public concern

limitation is a story about the free speech of public employees,” Thaddeus-X v.

Blatter, 175 F.3d 378, 390 (6th Cir. 1999) (en banc), and any attempt to apply it

to the broader context of speech by private citizens w ould quite mistakenly

“curtail a significant body of free expression that has traditionally been fully

6
See Van Deelen v. Shawnee Mission Unified Sch. Dist. # 512, 316 F.
Supp. 2d 1052, 1058-59 (D. Kan. 2004); Delkhah v. M oore, 2006 W L 1320255, at
*8-9 (D . Kan. M ay 15, 2006); Howse v. Atkinson, 2005 W L 1076527, at *6 (D .
Kan. M ay 4, 2005). The district court also cited M cCook v. Springer Sch. Dist.,
44 F. App’x. 896, 903-04 (10th Cir. 2002) (unpub.), an unpublished and
nonbinding decision of this circuit that, while ambiguous, allowed a private
plaintiff’s First Amendment claim in part on the ground that at least some of the
speech at issue involved matters of public concern. See id. at 904.

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protected under the First Amendment,” Eichenlaub v. Twp. of Indiana, 385 F.3d

274, 282 (3d Cir. 2004). 7

B

Under Worrell’s second requisite, M r. Van Deelen must show that the

defendants’ actions caused him “to suffer an injury that would chill a person of

ordinary firmness from continuing to engage in that activity.” 219 F.3d at 1212.

If accepted as credible by a jury, M r. Van Deelen’s allegations of physical and

verbal intimidation, including a threat by a deputy sheriff to shoot him if he

brought any more tax appeals, would surely suffice under our precedents to chill a

person of ordinary firmness from continuing to seek redress for (allegedly) unfair

property tax assessments. See, e.g., Perez v. Ellington, 421 F.3d 1128, 1132 (10th

Cir. 2005) (finding the rushed imposition of tax assessments and a delay in

removing tax liens after their abatement sufficient to chill a person of ordinary

firmness from continuing in constitutionally protected activity). Further, M r. Van

Deelen presented evidence of his actual injury; his deposition testimony and his

letter to the Board of Tax Appeals suggest that defendants’ actions did, in fact,

deter him from further tax appeals. Of course, a jury is free to find M r. Van

7
See also Campagna v. M ass. Dep’t of Envtl. Prot., 334 F.3d 150, 154-55
(1st Cir. 2003); Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000);
Eichenlaub, 385 F.3d at 282-84; Gable v. Lewis, 201 F.3d 769, 771-72 (6th Cir.
2000); Thaddeus-X, 175 F.3d at 388-90; Vickery v. Jones, 100 F.3d 1334, 1346
n.1 (7th Cir. 1996); cf. United States v. Reyes, 87 F.3d 676, 680 (5th Cir. 1996);
Dossett v. First State Bank, 399 F.3d 940, 950 (8th Cir. 2005).

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Deelen’s evidence unpersuasive or incredible, but that is the function of the fact

finder, not this court, in our judicial system.

C

Finally, M r. Van Deelen must show that defendants’ “adverse action was

substantially motivated as a response to the plaintiff's exercise of constitutionally

protected conduct.” Worrell, 219 F.3d at 1212. In aid of this cause, M r. Van

Deelen points us to M r. M iles’s alleged statement, “Today you get payback for

suing us,” and Deputy Flory’s alleged statement, “Johnson and M iles are mad

because you sued them.” Although defendants deny making these statements, and

the jury is free to so find, we cannot dispute that a reasonable jury could infer

from them an impermissible retaliatory motive. See, e.g., DeLoach v. Bevers, 922

F.2d 618, 620 (10th Cir. 1990) (finding sufficient evidence of retaliatory motive

from police detective’s statement: “Payback is hell, that’s what she got for hiring

a smart-ass lawyer.”).

III

Defendants suggest that, even if M r. Van D eelen satisfies Worrell’s

tripartite test and might otherwise have a triable retaliation claim for interference

with his right to petition, they are entitled to qualified immunity. W hen a

defendant asserts qualified immunity, the responsibility shifts to the plaintiff to

meet the burden of demonstrating first, that the defendant’s actions, viewed here

through the prism of our summary judgment standard and thus examined in the

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light most favorable to the plaintiff, violated a constitutional or statutory right;

and, second, that the right at issue was clearly established at the time of the

defendant’s allegedly unlawful conduct. Casey v. West Las Vegas Ind. Sch. Dist.,

473 F.3d 1323, 1327 (10th Cir. 2007); Phillips v. James, 422 F.3d 1075, 1080

(10th Cir. 2005). If the plaintiff fails to satisfy either part of this two-part test,

we grant qualified immunity. Casey, 473 F.3d at 1327. 8

W e believe M r. V an Deelen has overcome both qualified immunity hurdles.

As we have already indicated, M r. Van Deelen has alleged facts from which a

reasonable jury could (though need not necessarily) conclude that a violation of

the First Amendment took place. And the right at issue – to petition the

government for the redress of tax grievances – has been with us and clearly

established since the Sons of Liberty visited Griffin’s W harf in Boston.

Defendants respond by pointing us again to the line of cases from Kansas district

courts, see supra note 6, arguing that it “muddied the water” sufficiently that a

reasonable official would not have known that private citizens have a First

Amendment right to petition on private as well as public matters. But every case

discussing the public concern test in the Supreme Court has made pellucid that it

8
Even where the law is clearly established, a defendant may still be
entitled to qualified immunity by claiming extraordinary circumstances, such as
reliance on a state statute or regulation or the advice of legal counsel, and proving
that he neither knew nor should have known the relevant legal standard. M imics,
Inc. v. Village of Angel Fire, 394 F.3d 836, 842 (10th Cir. 2005). Defendants
here, however, make no such claim of extraordinary circumstances, but instead
simply assert that the law was not clearly established.

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applies only to public employees. See, e.g., Connick, 461 U.S. at 143-49; Waters,

511 U.S. at 671-82; City of San Diego, 543 U.S. at 80-84; Garcetti, 126 S. Ct. at

1957-62. The same is true of our own precedent. See, e.g., M artin v. City of Del

City, 179 F.3d 882, 886 (10th Cir. 1999) (explicitly stating six times within a

single page that the public concern test applies specifically to claims by public

employees); Schalk v. Gallemore, 906 F.2d 491, 494-95 (10th Cir. 1990); Burns v.

Bd. of County Com m’rs, 330 F.3d 1275, 1285-86 (10th Cir. 2003). And none of

our published opinions concerning the right of petition by private citizens has

even hinted at a public concern requirement. See, e.g., Beedle v. Wilson, 422 F.3d

1059, 1065-67 (10th Cir. 2005); M alik v. Arapahoe County Dep’t of Soc. Servs.,

191 F.3d 1306, 1315 (10th Cir. 1999); DeLoach, 922 F.2d at 620; Penrod v.

Zavares, 94 F.3d 1399, 1404-06 (10th Cir. 1996). The same is true of our sister

circuits. See supra pp. 11-12 and note 7. Reliance on district court and

unpublished decisions in the face of such uniform governing authority from the

Supreme Court, as well as this circuit and every other circuit to have addressed

the question, is not sufficient to avoid liability.

Put simply, and taking as true M r. Van Deelen’s version of the facts as w e

must, we hold (unremarkably, we think) that a reasonable government official

should have clearly understood at the time of the events at issue that physical and

verbal intimidation intended to deter a citizen from pursuing a private tax

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complaint violates that citizen’s First Amendment right to petition for the redress

of grievances.

IV

In addition to his petitioning claim, M r. Van Deelen alleges a number of

other First Amendment violations, including that defendants infringed his rights

of speech, assembly (by denying him access to the county courthouse for the

purpose of pursuing tax appeals), and association (by denying him access to

courthouse employees). The district court view ed all such claims as “merely

restat[ing]” M r. Van Deelen’s claim for interference with his right to petition and

dism issed them because they, too, did not relate to matters of public concern. A s

we have indicated, however, the public concern test enjoys no place in the

analysis of a private citizen’s First Amendment claims. Accordingly, we reverse

the district court’s summary judgment on these counts as w ell. But,

acknowledging that they were only briefly developed before us in a pro se brief,

and that proper but as-yet unanalyzed grounds for summary judgment or qualified

immunity may exist, we believe the prudent course is to ask the district court to

conduct such examinations in the first instance on remand.

Beyond his First Amendment claims, M r. Van Deelen also appeals the

district court’s summary judgment on his claims of conspiracy and violations of

due process, as well as his claim against the County for adopting a policy or

custom that caused him to be deprived of his federal rights. W e have

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independently reviewed these claims and can report them to be without merit and

thus properly dismissed by the district court. However, because we have renewed

the original basis for supplemental jurisdiction by reviving and remanding M r.

Van Deelen’s First Amendment claims, we vacate the district court’s dismissal of

his state tort claims and reinstate them to this suit. See Anaya v. Crossroads

M anaged Care Sys., Inc., 195 F.3d 584, 590 n.1 (10th Cir. 1999). 9

* * *

To summarize, because the right of a private citizen to seek the redress of

grievances is not limited to matters of “public concern,” we reverse the district

court’s grant of summary judgment with respect to defendants M r. M iles, M r.

Johnson, and Deputy Flory on M r. Van Deelen’s claim for interfering with his

First Amendment right to petition and remand that matter for trial. W ith respect

to these same defendants and M r. Van Deelen’s remaining First Amendment

claims, we reverse and remand for the further proceedings we have outlined. W e

affirm the district court’s grant of sum mary judgment on plaintiffs’ various First

Amendment claims as against defendants Sergeant Fangohr, Sheriff M cGovern,

9
Separately, appellees argue that M r. Van D eelen’s pro se brief suffers
from “substantial deficiencies” sufficient to warrant summary dismissal of this
appeal under Garrett v. Selby Connor M addux & Janer, 425 F.3d 836 (10th Cir.
2005). Though perhaps no model of appellate argument, M r. Van D eelen’s pro se
brief suffers from far fewer deficiencies than appellees contend, and, happily, it
does not come close to sinking to the low blows of the brief at issue in Garrett,
which did “little more than attempt to impugn (without basis) the integrity of the
district judge.” Id. at 841.

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and the County. W e also affirm the district court’s grant of summary judgment to

all defendants with respect to M r. Van Deelen’s claims of conspiracy and

violations of due process. Finally, we vacate the district court’s dismissal of M r.

Van D eelen’s state law claims.

So ordered.

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