Protecting Free Speech Against Government Retaliation

CarePartners, LLC v. Lashway, 545 F.3d 867, (9th Cir. Wash.), September 25, 2008, (NO. 07-35125)

A state boarding home, CarePartners, brought an action against several employees and representatives of the Washington State Department of Social and Health Services (“DSHS”) and the Washington State Fire Marshal's office (“fire marshal”) in their individual capacities (collectively, the “State employees”) claiming that the State employees engaged in retaliatory enforcement of state boarding home laws and regulations. CarePartners alleged that the State employees retaliated against its facilities, including revocation of one facility's license, in response to constitutionally protected speech and petition activities. An owner of CarePartners, Kilkelly, had given a critical public speech about DSHS and its interpretations of certain regulations, had lobbied for a license from DSHS, and had filed of an administrative appeal of one of DSHS's regulatory decisions. The State employees appeal the district court's denial of their motion for summary judgment on their defense of qualified immunity. Viewing the facts in a light most favorable to CarePartners, and based on circuit precedent, the Ninth Circuit ruled that the State employees were not entitled to qualified immunity.

In Soranno's Gasco Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989), the standard for evaluating whether a regulated entity has established a claim of retaliation based on the exercise of free speech and petition rights was decided: A “plaintiff alleging retaliation for the exercise of constitutionally protected rights must initially show that the protected conduct was a ‘substantial’ or ‘motivating’ factor in the defendant's decision.” If the plaintiff makes this initial showing, the “burden shifts to the defendant to establish that it would have reached the same decision even in the absence of the protected conduct.” To meet this burden, a defendant must show by a preponderance of the evidence that it would have reached the same decision; it is insufficient to show merely that it could have reached the same decision.”

The State employees argued that the Ninth Circuit should impose a requirement on CarePartners to plead and prove an “absence of probable cause” with respect to their enforcement decisions, relying on Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). The court held that Hartman's absence of probable cause element applies to “a particular subcategory of retaliation claims: retaliatory prosecution claims.”

The court decided that the Soranno’s Gasco case had a similar fact pattern. The plaintiffs in Soranno's Gasco were sellers and distributors of petroleum products that operated under certain bulk plant permits. Soranno, as owner of Sorrano's Gasco (“Gasco”), publicly challenged certain new regulations promulgated by the county and the air pollution district, speaking out at County Board of Supervisors meetings and initiating litigation to challenge the regulations. Subsequently, the air pollution district demanded certain documentation from Soranno, which Sorrano refused to provide on the grounds that the demand was an improper attempt at discovery related to a civil penalty action the county had filed against Gasco. The air pollution district then exercised its statutory authority and suspended Gasco's bulk plant permits, and a pollution control officer circulated a letter to Gasco's clients informing them of Gasco's permit suspension and of possible adverse impact on their own businesses.

Sorrano and Gasco brought an action under 42 U.S.C. § 1983 against the county, the air pollution district, and several officials on the grounds that the defendants suspended Gasco's petroleum bulk plant permits and discouraged its customers from doing business with Gasco in retaliation for Soranno's exercise of constitutionally protected speech and petition rights. We vacated the grant of summary judgment and held that: (1) the plaintiffs had protected rights in commenting on the conduct of government officials and in petitioning the government for redress of grievances, and (2) Soranno's protected expression was a substantial factor in the decision to suspend Gasco's permits. The Ninth Circuit based its finding that Sorrano's protected expression was a substantial factor in the air pollution district's decision on the timing of the district's suspension action and a phone call in which the pollution control officer intimated to Sorrano that he would “somehow get even” with Soranno for generating embarrassing publicity about the challenged regulations.

The court found four indications that the State employees had retaliated in the Care Partners case. First, the timing of the State employees' investigation of CarePartners and the summary suspension and revocation of its license were suspiciously close in time to the administrative hearing on the Meridian facility and Kilkelly's lobbying efforts regarding the Lakewood facility. Second, the existence of a retaliatory intent is supported by Dale's declaration indicating that DSHS officials were “quickly losing patience” with Kilkelly, and that the Assistant Attorney General told Dale that Kilkelly was “known to the department.” Third, the record, based on limited discovery, contains e-mails that suggest DSHS was planning to take action against Alderwood and Wenatchee before it conducted its follow-up inspections. Finally, the record indicates that DSHS may have been deliberately refusing to communicate with Kilkelly despite his expressed willingness to install a sprinkler system. In the context of an interlocutory appeal on qualified immunity, these facts indicate that CarePartners has demonstrated that Kilkelly's protected expression may well have been a substantial factor in the State employees' aggressive enforcement decisions.

The State employees attempted to insert two criteria applicable to the evaluation of a public employee's speech-based retaliation claims should apply generally to First Amendment retaliation claims by regulated entities: first, that the speech at issue address a matter of public concern; and, second, that even if that speech addresses a matter of public concern it survive what is known as the Pickering balancing test. They relied primarily on Tennessee Secondary School Athletic Association v. Brentwood Academy, --- U.S. ----, 127 S.Ct. 2489, 168 L.Ed.2d 166 (2007), which they argued held that the public concern requirement and Pickering balancing test apply generally to the regulated entity context. In Brentwood Academy, the Court held that a state-sponsored high school athletic league could impose conditions on its member schools' coaches' speech-aimed at “hard-sell recruiting” of middle school children to high school teams-that were necessary to managing an efficient and effective league.

The CarePartners court held that private citizens First Amendment freedom of speech rights were not limited by the limited protection provided to “employment at will” government employees. The government, acting as an employer, the government has some authority to impose conditions upon those who seek jobs, including conditions that limit the exercise of otherwise available constitutional rights. Second, “[w]hen someone who is paid a salary so that she will contribute to an agency's effective operation begins to do or say things that detract from the agency's effective operation, the government employer must have some power to restrain her.”

The CarePartners court agreed with the district court that the relevant law was clearly established at the time of the alleged violation. In Soranno's Gasco, the Ninth Circuit held that it is unlawful for the government to deliberately retaliate against a citizen for exercising his right to comment on (and publicly criticize) government officials' actions and his right to access the courts and administrative appeals process for redress of grievances.

The Ninth Circuit has upheld the right to freely criticize government without fear of retaliation.