IAF, Local 2665 v. City of Ferguson , 283 F.3d 969 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2277EM
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International Association of *
Firefighters of St. Louis, *
Franklin and Jefferson Counties, *
Local 2665; Lloyd Thompson; and *
Alma Mendez-Thompson, *
* On Appeal from the United
Appellants, * States District Court
* for the Eastern District
v. * of Missouri.
*
*
City of Ferguson and Allen D. Gill, *
*
Appellees. *
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Submitted: December 13, 2001
Filed: March 25, 2002
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Before LOKEN, RICHARD S. ARNOLD, and BYE, Circuit Judges.
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RICHARD S. ARNOLD, Circuit Judge.
The International Association of Firefighters of St. Louis, Franklin, and
Jefferson Counties, Local 2665, Lloyd Thompson, a Ferguson resident and employee,
and his wife, Alma Mendez-Thompson, challenged a provision of the Charter of the
City of Ferguson which prohibited certain city employees from sponsoring,
electioneering for, or contributing money to any candidate for mayor or city council.
The plaintiffs claimed that the provision abridged their freedom of speech in violation
of the First Amendment. The District Court granted summary judgment for the
plaintiffs as to the sponsoring prohibition contained in the challenged provision, but
granted summary judgment in favor of the City of Ferguson on all other claims. The
plaintiffs Lloyd Thompson and Alma Mendez-Thompson appeal the decision of the
District Court. We affirm the judgment insofar as it upheld the challenged provision
as applied to Lloyd Thompson. The District Court also dismissed Alma Mendez-
Thompson's separate claim for lack of standing. As to that issue, we reverse and
remand for further proceedings.
I.
The City of Ferguson is a charter city located in St. Louis County, Missouri.
In 1998, the City approved the current city charter. This charter includes the
following provision:
Neither the city manager nor any person holding an administrative office
or position under the city manager’s supervision shall be a candidate for
mayor or city council member or engage, directly or indirectly, in
sponsoring, electioneering or contributing money or other things of
value for any person who is a candidate for mayor or council. All such
persons shall retain the right to vote as they choose and to express their
opinions on all political subjects. Any person violating the provisions
of this section shall be removed in the manner provided in the personnel
code.
Appendix of Appellant (App.) 58 (quoting Section 5.3 of Ferguson City Charter).
The plaintiffs contend that the provision violates their First Amendment rights to
freedom of speech.
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The District Court determined that the sponsoring provision, which prohibited
employees from directly or indirectly sponsoring candidates for mayor or town
council, was void for vagueness and enjoined future enforcement of that provision.
This issue is not before us. All other prohibitions contained in the challenged
provision were held to be constitutional as applied to the plaintiff Lloyd Thompson.
The Court also determined that Alma Mendez-Thompson lacked standing to
challenge the provision because she was not an employee of the City, and the City
could take no action against her. The pendent state claim was dismissed by the
District Court.1
II.
This Court has reviewed constitutional challenges to provisions such as the one
contained in the Ferguson City Charter in the past. Specifically, in Reeder v. Kansas
City Bd. of Police Comm’rs, 733 F.2d 543 (8th Cir. 1984), cert. denied, 479 U.S.
1065 (1987), we upheld a ban on political contributions by officers or employees of
the Kansas City Police Department. Id. at 548. Though we did state that a restriction
such as this “does abridge the freedom of speech in a literal sense,” it was
constitutionally permissible. Id. at 547. We noted that the Supreme Court has
allowed the government to impose “substantial restrictions on [the] political activity"
of its own employees and that First Amendment rights “must yield on occasion to the
demands of public safety.” Id. at 547. See Broadrick v. Oklahoma, 413 U.S. 601
(1973). Though the case at hand does not involve only a prohibition on funding, but
also a prohibition on electioneering by government employees, the rationale used and
the outcome reached in Reeder control the decision in this case. The District Court
1
The plaintiffs allege that the challenged provision violates Mo. Rev. Stat.
§ 130.028 (2001). The District Court dismissed this claim without prejudice after
disposing of all federal claims on summary judgment.
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properly granted summary judgment to the City on Lloyd Thompson's First
Amendment claim.
The District Court analyzed the justifications provided by the City to support
the provision at issue. The Court determined that the provision, which affected only
certain government employees, was “necessary to protect against the erosion of public
confidence in the impartiality of the provision of Government services, in preserving
the fairness of City elections, and in preserving the efficiency of the operations of the
City.” Int’l Ass’n of Firefighters v. City of Ferguson, No. 4:00CV00241, slip op. at
34 (E.D. Mo. April 17, 2001). Moreover, the Court noted that the restriction is
narrowly tailored, because it applies only to local elections for mayor and council.
Because greater restrictions may be placed on government employees than the public
at large, the provision was held to be constitutional. Id. at 34-35; see Kelly v.
Johnson, 425 U.S. 238, 245 (1976). We agree with the decision reached by the
District Court.
III.
The District Court dismissed Ms. Mendez-Thompson’s separate claim for lack
of standing. She is not an employee of the City, and the challenged provision of the
charter clearly does not apply to her. It does apply to her husband, but she must assert
her own rights, not his. However, Ms. Mendez-Thompson claims that the City is
threatening to interpret Section 5.3 in such a way as to chill her own exercise of First
Amendment rights. In the past, when she lived in New York, she did participate in
political activities, specifically a campaign for a councilwoman. App. 159. She also
worked in campaign offices and made telephone calls on behalf of candidates. Id. at
160. After moving to Missouri, she participated in the re-election campaign of a
candidate for city council in Calverton Park. But, in her view, the charter provision
in question in this lawsuit has prevented her from participating in similar activities
in the City of Ferguson, because she feared it would jeopardize her husband’s
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position as a city employee. Id. at 161. Her lawyer wrote a letter to the City inquiring
about its interpretation of Section 5.3, specifically, whether her husband might suffer
discipline if she ran for office, electioneered, or contributed money to a candidate for
mayor or council. The City did not answer this letter. Ms. Mendez-Thompson has
“felt intimidated to do anything of [a political] nature.” Id. at 161.
As we have said, the charter obviously does not apply to Ms. Mendez-
Thompson. The prohibition against “indirect,” as opposed to “direct,” political
activities, however, does apply to Mr. Thompson. The Mayor, Steven Wegert, took
the position, when testifying at a deposition under oath, that if an employee’s spouse
or children placed a yard sign in front of the house where they were residing with the
employee, the employee would be considered to be “indirectly” engaging in political
activity prohibited by the Charter. App. 177. A political contribution made from a
couple’s joint bank account would presumably be subject to the same logic. So it
seems that Ms. Mendez-Thompson’s apprehension that political activities on her part
might be used to discipline her husband is not unreasonable, or, at least, that a
sufficient issue as to its reasonableness has been made out to make summary
judgment on the question inappropriate.
The political activities at issue here are at the core of the First Amendment.
The City does not claim that it can directly regulate Ms. Mendez-Thompson’s
activities, but it does seem to claim that it can discipline, perhaps even discharge, her
husband on account of her activities. If her testimony is believed, as it must be in this
summary-judgment context, she has a reasonable apprehension that her husband
might be economically disadvantaged in retaliation for political activities on her part.
Does this claim assert her own rights, or merely those of her husband? We think it
asserts her own rights. She has her own rights to participate in political activities, and
if her husband were disciplined or lost his job, the economic adverse effect on her
would be clear, especially, perhaps, in view of the fact that they have a joint bank
account. We are not holding that a spouse has standing to assert a claim any time the
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other spouse is injured. But here, Ms. Mendez-Thompson is herself injured by having
to give up, or hesitating to exercise, her First Amendment rights, and by the
consequent loss of her husband’s ability to provide the mutual support that the law
imposes as a duty on both spouses.
Do these facts fit the law of standing? We think the answer is yes. Federal
courts are authorized to decide only “cases” and “controversies.” U.S. Const. Art. III,
§ 2. In order to meet this requirement, a plaintiff must present a concrete dispute
involving an injury to himself. The law has been well summarized in New Hampshire
Right to Life Political Action Committee v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996):
To clear the Article III hurdle, the party who invokes
a federal court’s authority must show that (1) he or she
personally has suffered some actual or threatened injury as
a result of the challenged conduct; (2) the injury can fairly
be traced to that conduct; and (3) the injury likely will be
redressed by a favorable decision from the court.
The leading Supreme Court case is Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S. 464, 471-72 (1982). Here,
the City’s threatened conduct is preventing Ms. Mendez-Thompson from exercising
what she claims to be a First Amendment right, running for office, supporting
candidates, or contributing to them. Her apprehension that the City might act
adversely if she exercised any of these rights seems not unreasonable. The threatened
consequence of her exercising the rights is the discipline or discharge of her husband,
a city employee, substantially damaging her life and economic condition. If the Court
decides favorably on her claim, the city will be prevented from visiting this sanction
upon her husband and her.
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In addition to this constitutional element, the doctrine of standing also
embraces “prudential” concerns. Valley Forge, 454 U.S. at 471. For example, the
complaint must “fall within the zone of interests protected by the law invoked.”
Allen v. Wright, 468 U.S. 737, 751 (1984). This requirement is clearly met. The
political activities in which the plaintiff wishes to engage fall within the very heart
of the interests protected by the First Amendment. Next, a plaintiff ordinarily “must
assert his own legal rights and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975). Here,
as we have said, plaintiff has an interest of her own to defend. Not only is it her own
political activities that she seeks to protect, but her own personal and economic status
as well. Third, the suit must present more than “abstract questions of wide public
significance which amount to generalized grievances, pervasively shared and most
appropriately addressed in the representative branches.” Valley Forge, 454 U.S. at
475 (internal quotations omitted). Again, there is no doubt that Ms. Mendez-
Thompson qualifies under this requirement. Her own particular rights and intended
activities are at stake, as well as “questions of wide public significance.”
We are aware that other courts have reached a different conclusion on similar
issues. In Biggs v. Best, Best & Krieger, 189 F.3d 989, 998-99 (9th Cir. 1999), for
example, the husband and daughter of a city attorney were involved in local politics.
A city councilman said that the city attorney would be fired unless her “family was
silenced in Redlands community politics.” Id. at 992. The lawyer, her husband, and
her daughter brought suit against members of the city council. Summary judgment
was granted for defendants on the basis of qualified immunity. On appeal, the Ninth
Circuit held that the husband and daughter had no standing to raise claims of their
own, but only enough standing to raise, derivatively, the same claims as the city
attorney. The Court said:
Although the loss of Julie Biggs’ salary is not
insubstantial, we hold that it is only sufficient to confer
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standing on Jerry and Holly Biggs to assert the same claims
brought by Julie Biggs.
Id. at 998. The District Court’s holding that the defendants were entitled to qualified
immunity as against all plaintiffs was affirmed. The harm that might occur to the city
attorney’s husband and daughter was described as “indirect.” Ibid.
Similarly, in Horstkoetter v. Department of Public Safety, 159 F.3d 1265, 1279
(10th Cir. 1998), a state trooper’s wife wanted to place a yard sign in front of their
house. The Court held that the wife had standing only to raise the same claim as her
husband, and not to raise any separate claims of her own. The policy, the Court
reasoned, applied only to troopers, and not troopers’ spouses. No one but troopers
could be punished under the policy. There was no possibility of disciplinary action
against the spouses themselves. The Court conceded, citing Ben Oehrleins & Sons
& Daughter v. Hennepin County, 115 F.3d 1372, 1379 (8th Cir.), cert. denied, 522
U.S. 1036 (1997), that indirect economic injury constitutes injury in fact, but only
if the injury is neither speculative nor merely incidental. The Court acknowledged
that the plaintiff wife was “without question, indirectly injured by the application of
the policy to [her] husband[ ], because [he was] faced with a loss of income which
would have affected the entire family.” 159 F.3d at 1279. Still, the Court held, the
wife had no claim of her own. If the law was valid as applied to the husband, it
would also be valid as applied to discipline him on account of the activities of his
wife. This holding is somewhat mitigated, however, by the Court’s observation that,
if the wife were a joint owner of the property, the husband could not be disciplined,
because, in that event, he would have no power to prevent her from placing the sign
in the yard, or to remove the sign after it had been placed there. Id. at 1276.
Finally, in English v. Powell, 592 F.2d 727, 730 (4th Cir. 1979), a husband
employed by a county was demoted, and the husband was told that if his wife made
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any further complaints to the employing board, he would be fired. That harm
occurred to the wife was not disputed:
The objective harm results from Shands’ demotion
to store clerk and attendant decrease in salary; Mrs.
Shands, who was a housewife while her husband was
personnel manager, had to take a job to supplement the
family income.
Still, the Court took the view that these injuries are too indirect and speculative to
support Mrs. Shands’s standing.
It is a novel theory that a wife possesses such a
propriety interest in her husband’s position that a decrease
in his salary gives her an actionable claim.
Ibid.
We express our disagreement with these cases with respect and with some
reluctance, but also with a firm conviction. The injury may be indirect, in that it
occurs initially to the husband, through loss of his job. It is nonetheless real and
tangible. That the wife has no proprietary interest in the husband’s job we are ready
to acknowledge, though she may, under state law, have a legal interest in the income
that derives from the job. The effect on her life and economic status from the firing
of her husband is nevertheless quite substantial, and can be catastrophic. The injury,
to be sure, is not certain. We do not know that the City will discipline or fire
Mr. Thompson if Ms. Mendez-Thompson engages in any of the listed political
activities. But certainty of injury is not necessary, at least in the First Amendment
context. She should not be required to undertake a prohibited activity, and risk the
consequent economic loss, in order to test the validity of the threatened application
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of the charter. Possibly the charter can be construed (as the Tenth Circuit suggested
in Horstkoetter) not to allow the imposition of sanctions on account of the wife’s
activity. The husband, for example, would have no legal right to prevent his wife
from writing checks on their joint bank account to any payee she saw fit. And
certainly the ability of the husband to discharge his legal duty of support would be
impaired if he were demoted or discharged.
For all of these reasons, we conclude that the wife has standing. If Ms.
Mendez-Thompson’s claim were merely duplicative of her husband’s, it wouldn’t
matter whether she had standing or not. The District Court’s holdings with respect
to the federal constitutional validity of the charter provision would cover her as well
as him. Her claim, however, is not merely duplicative. We have held that Mr.
Thompson can be disciplined if he violates the charter provision, except for the part
about sponsoring, which the District Court held invalid. Ms. Mendez-Thompson’s
claim is distinct. It is that her own political rights cannot be chilled by the threat of
discipline against her husband. For what he himself does, the City can discipline him,
but if the wife’s claim is valid as a matter of federal constitutional law, the City
cannot discipline the husband for what she does. The District Court did not reach the
merits of this claim, and neither do we. It should be addressed on remand.
IV.
It remains to determine the propriety of the District Court’s dismissal of the
pendent, or supplemental, state claim. This claim is that Section 5.3 of the Ferguson
City Charter violates a Missouri statute, Mo. Rev. Stat. § 130.02 (2001). The claim
is legally distinct from the federal claims, though it may not require any substantially
different proof of facts on either side. After the District Court had disposed of the
federal claims on summary judgment, it dismissed the pendent state claim, citing 28
U.S.C. § 1367(c)(3), providing that such state claims may be dismissed without
prejudice when all federal claims have been dismissed. As appellants object on
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appeal, all federal claims were not dismissed in this case. They were disposed of on
summary judgment, but the plaintiffs’ position was upheld with respect to the
sponsoring provision of the charter. However, another portion of the supplemental-
jurisdiction statute, 28 U.S.C. § 1367(c)(1), provides that a pendent state claim may
be dismissed without prejudice if the state-law issue is novel or difficult. We leave
the question of how to handle the state claim to the District Court on remand. After
the merits of Ms. Mendez-Thompson’s federal claim have been determined, the legal
predicate will be clearer. The District Court would always be free, of course, to
proceed to the merits of the state claim, in its discretion, even if one of the conditions
in 28 U.S.C. § 1367(c) for dismissal of the state claim had been satisfied. We express
no view on the appropriate outcome of that question.
V.
Accordingly, the District Court’s dismissal of that portion of Mr. Thompson’s
federal claim that is involved in this appeal is affirmed. Its dismissal of Ms. Mendez-
Thompson’s federal claim is reversed, and the cause remanded for further
proceedings with respect to that claim. Finally, the order dismissing the supplemental
state claim without prejudice is vacated, and that issue should be reconsidered by the
District Court on remand.
It is so ordered.
LOKEN, Circuit Judge, concurring.
I agree with Part II of the court’s opinion, which holds that the City Charter is
clearly constitutional insofar as it restricts political activity by City employee Lloyd
Thompson. I also agree with what is implicit in Part III of the court’s opinion -- that
the validity under the First Amendment of an ordinance restricting political activities
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by city employees may well be affected by the extent to which the ordinance restricts,
or could be construed as restricting, the political activities of employee spouses.
Lloyd Thompson is the only one who will be sanctioned by the City if his
spouse, Alma Mendez-Thompson, engages in political activity that violates the City
Charter provision in question. If Alma Mendez-Thompson engaged in political
activity and Lloyd Thompson were fired for that reason, he obviously would have
standing to argue that the Charter would violate the First Amendment if construed as
applying to her political activity. Likewise, prior to suffering any sanction, Lloyd
Thompson should have standing to assert a First Amendment claim that the Charter
provision is overbroad or vague because of its chilling effect on his spouse’s political
activities, even if it may validly limit his own political activities.
What is unusual in this case is that plaintiffs, in their zeal to establish Alma
Mendez Thompson’s standing to assert an independent claim, barely mentioned in the
district court, and argued not at all to this court, that Lloyd Thompson has a First
Amendment claim based on the Charter’s chilling effect on his wife’s freedom to
engage in political activities. In my view, plaintiffs’ myopia in this regard has led
both courts into error. The district court should have considered this aspect of Lloyd
Thompson’s claim. And this court should remand for that purpose, rather than
granting Alma Mendez Thompson standing to assert her own claim. Like the three
other circuits that have considered the question, I conclude that in this situation the
injury to the spouse derives from the injury to the employee (his actual or potential
loss of income), and that the employee is the more appropriate party to litigate a facial
challenge to the restraint. See Biggs v. Best, Best & Krieger, 189 F.3d 989, 997-99
(9th Cir. 1999); Horstkoetter v. Dept. of Public Safety, 159 F.3d 1265, 1278-80 (10th
Cir. 1998); English v. Powell, 592 F.2d 727, 730 (4th Cir. 1979). Therefore, to
eliminate a need to adjudicate multiplicitous claims, and to avoid possible problems
of remedy if an ordinance or charter provision were held constitutional as to the
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employee but invalid as to his spouse, I would hold that prudential concerns limit
standing to the employee.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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