Richard Osborne v. Arlyn Grussing , 477 F.3d 1002 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2021
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Richard Osborne; Jerome Sammon, *
*
Plaintiffs - Appellants, *
*
v. * Appeal from the United States
* District Court for the
Arlyn Grussing, in his individual * District of Minnesota.
capacity and in his official capacity as *
Director of the Rice County Department *
of Planning and Zoning, et al., *
*
Defendants - Appellees. *
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Submitted: November 15, 2006
Filed: February 26, 2007
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Before LOKEN, Chief Judge, LAY* and MELLOY, Circuit Judges.
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LOKEN, Chief Judge.
Richard Osborne and Jerome Sammon own residential property on Circle Lake
in Rice County, Minnesota. They commenced this § 1983 suit against Rice County
and four County officials, alleging that defendants were selectively enforcing
provisions of the Rice County Zoning Ordinance in retaliation for plaintiffs’ public
*
The HONORABLE DONALD P. LAY assumed permanent disability
retirement status on January 3, 2007. This opinion is being filed by the remaining
judges of the panel pursuant to 8th Cir. R. 47E.
criticism of the County’s lax enforcement of environmental and zoning regulations
against a substantial Circle Lake housing development. After the County was
dismissed by stipulation, the remaining parties filed cross motions for summary
judgment. The district court1 granted defendants summary judgment. Osborne and
Sammon appeal. We affirm.
I.
In early 2004, Osborne and Sammon repeatedly criticized the Rice County
Planning Commission (the “Commission”) and the Rice County Planning and Zoning
Office (“P&Z”) for failing to enforce environmental and zoning regulations against
a lakeshore housing project being developed by local businessmen Jerry Anderson and
Dan Wenstrom. In early July, Melissa Bokman, a P&Z environmental planner, and
employees of the state Department of Natural Resources (DNR) investigated formal
complaints by Anderson and Wenstrom that Osborne and Sammon had each violated
environmental regulations and county ordinances two to three years earlier when
Osborne installed rock fill (“rip-rap”) along his shoreline and Sammon built a
retaining wall within the “shore impact zone” of his property. The investigators
concluded that Osborne and Sammon each used more than ten cubic yards of fill for
his project and therefore violated the ordinance requiring a grading and filling permit.
See Rice County, Minn., Zoning Ordinance § 506.11(B)(3)(a). DNR and P&Z staff
agreed that Rice County would “take the lead on resolving both violations.”
When notified of the alleged violations, Osborne and Sammon applied for
“after-the-fact” conditional use permits for their shoreline improvements. The
Commission took up the applications as separate agenda items at its meeting on
October 7, 2004. A transcript of that meeting is part of the summary judgment record
1
The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota.
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on appeal. When Osborne spoke, Commission Chairman Ross Nelson said, “You’re
a lawyer; and you didn’t know a permit was required for this work,” “You have a
higher obligation to know the law,” and “Shame on you for seeking a permit two and
a half years after the fact.” Commissioner Jim Brown said it was “ironic” and
“insulting” for Osborne to have criticized P&Z while violating the zoning ordinances
himself. Osborne accused the Commission and P&Z of selectively enforcing the
ordinance in retaliation for his on-going criticism. The Commissioners insisted they
were treating Osborne the same way they treated others.
When Sammon spoke, he objected to removing his retaining wall, as the current
ordinance requires, because the ordinance in effect when he built his wall without the
required permit did not ban retaining walls. The Commissioners responded that,
having initially failed to comply with the zoning ordinance, Sammon must comply
with the ordinance in effect when he applied for an after-the-fact permit. One
Commissioner commented, “Mr. Osborne says we’re not enforcing things in the
ordinance. Maybe we’re starting to enforce the things in the ordinance.”
After lengthy discussions with both Osborne and Sammon, the Commission
adopted the recommendations of P&Z staff and granted Osborne and Sammon after-
the-fact permits subject to numerous costly conditions, including the likely removal
of Osborne’s rip-rap and the mandatory removal of Sammon’s retaining wall. Rather
than complying with these conditions or challenging the County’s actions in state
court, Osborne and Sammon filed this § 1983 action seeking damages and injunctive
relief for defendants’ alleged retaliation against plaintiffs’ First Amendment-protected
criticism of the Commission and the P&Z. The district court granted the individual
defendants summary judgment on the ground that Osborne and Sammon “have failed
to set forth facts showing a causal connection between their protected First
Amendment activity and the County’s investigation and enforcement of environmental
regulations.”
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II.
It is well-settled that “as a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions, including
criminal prosecutions . . . on the basis of his constitutionally protected speech.”
Hartman v. Moore, 126 S. Ct. 1695, 1701 (2006) (citation and quotation omitted). To
prevail in an action for First Amendment retaliation, “plaintiff must show a causal
connection between a defendant’s retaliatory animus and [plaintiff’s] subsequent
injury.” Id. at 1703. In this case, it is clear that Osborne and Sammon engaged in
First Amendment-protected activity when they publicly criticized the County’s
enforcement practices, and that regulatory actions forcing them to obtain costly after-
the-fact grading and filling permits were sufficient injury to support a First
Amendment retaliation claim.2 Thus, as the district court recognized, the crucial
summary judgment issue is whether Osborne and Sammon made a sufficient showing
of causation.
Osborne and Sammon concede that the alleged retaliatory injury -- the costs of
complying with after-the-fact permit conditions -- result from their earlier violations
of the Rice County Zoning Ordinance in installing rip-rap and building a retaining
wall without the required grading and filling permits. This complicates the causation
2
Osborne and Sammon further allege that they were embarrassed by the verbal
tongue-lashings they received at the October 2004 Planning Commission meeting.
These remarks are of course relevant in assessing defendants’ motives for taking
enforcement action. But the remarks themselves were not actionable injury because
they would not “deter a person of ordinary firmness from continuing to speak out.”
Naucke v. City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002); see Carroll v. Pfeffer,
262 F.3d 847, 850 (8th Cir. 2001), cert. denied 536 U.S. 907 (2002). Plaintiffs’
assertions that other after-the-fact permit applicants received a friendlier reception at
the June 17, 2004, Commission meeting are inadmissible hearsay. See Herr v.
Airborne Freight Corp., 130 F.3d 359, 361 n.4 (8th Cir. 1997).
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inquiry. As the Supreme Court explained in Mt. Healthy City School Dist. v. Doyle,
429 U.S. 274, 285 (1977):
A rule of causation which focuses solely on whether protected conduct
played a part, “substantial” or otherwise, in a decision [to enforce a
regulatory ordinance] could place [the violator] in a better position as a
result of the exercise of constitutionally protected conduct than he would
have occupied had he done nothing.
Accordingly, the Court held in Mt. Healthy that plaintiff, a school teacher, could not
recover by proving that his First Amendment-protected telephone call to a local radio
station played a “substantial part” in the defendant school board’s decision not to
renew his contract, if the school board then proved “by a preponderance of the
evidence that it would have reached the same decision . . . even in the absence of the
protected conduct.” Id. at 287. As the Court has recently explained, this is a but-for
causation standard. “If there is a finding that retaliation was not the but-for cause of
the discharge, the claim fails for lack of causal connection between unconstitutional
motive and resulting harm, despite proof of some retaliatory animus in the official’s
mind.” Hartman, 126 S. Ct. at 1704.
This case does not involve a public employee seeking to reverse an adverse
employment action. We deal here with retaliation claims by citizens seeking to avoid
the consequences of their illegal actions. In a regulatory enforcement situation, the
government has an even stronger interest in not putting the violator “in a better
position as a result of the exercise of constitutionally protected conduct,” so it is not
surprising that later cases point toward a stricter causation requirement in this context
than the burden-shifting standard adopted by Mt. Healthy in the public employment
context. For example, the Supreme Court held in Hartman that, when the alleged
retaliatory injury is a criminal prosecution, proof that the prosecutor lacked probable
cause to commence the prosecution is an affirmative element of the plaintiff’s case.
126 S. Ct. at 1706-07. Similarly, we have repeatedly held that a prisoner fails to state
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a claim for retaliatory discipline “when the alleged retaliation arose from discipline
imparted for acts that a prisoner was not entitled to perform,” i.e., for violations of
prison rules. Goff v. Burton, 7 F.3d 734, 738 (8th Cir. 1993) (quotation omitted), cert.
denied, 512 U.S. 1209 (1994).
Recognizing that we must craft a causation standard “with details specific to”
this type of case, Hartman, 126 S. Ct. at 1703, we conclude that a plaintiff who seeks
relief from valid adverse regulatory action on the ground that it was unconstitutional
retaliation for First Amendment-protected speech must make the same showing that
is required to establish a claim of selective prosecution -- “that he has been singled out
for prosecution while others similarly situated have not been prosecuted for conduct
similar to that for which he was prosecuted [and] that the government’s discriminatory
selection of him for prosecution was based upon . . . his exercise of his first
amendment right to free speech.” United States v. Catlett, 584 F.2d 864, 866 (8th Cir.
1978), citing United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974).
Applying this standard, we agree with the district court that Osborne and
Sammon failed to show that the Commission and P&Z staff selectively enforced the
Rice County Zoning Ordinance. It is undisputed that, due to inadequate resources,
P&Z staff investigate violations of the ordinance only when a citizen files a complaint
against a particular landowner. Though acknowledging formal complaints were filed
against them, Osborne and Sammon note the complaints were filed by Anderson and
Wenstrom, developers with a motive to retaliate because Osborne and Sammon had
publicly opposed the developers’ housing project. But regulatory and law
enforcement agencies routinely act on the basis of information provided by private
parties who harbor a grudge or who hope to benefit personally from their complaints,
such as jealous competitors, disgruntled former employees, confidential informants,
and cooperating co-conspirators. When such a complaint results in enforcement
action, we do not impute the complainant’s ulterior motive to the government
enforcers. Thus, absent proof that one or more defendants induced Anderson and
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Wenstrom to file complaints in order to camouflage a governmental intent to retaliate,
the source of the accurate complaints that Osborne and Sammon were violating the
ordinance is irrelevant.3
Osborne and Sammon also complained that they were the first Circle Lake
landowners to be cited for installing rip-rap or building a retaining wall without a
grading and filling permit. At the October 2004 hearing, the Commissioners
responded that similar after-the-fact permit requirements had been imposed on
landowners at other Rice County lakes. Osborne and Sammon submitted no summary
judgment evidence to the contrary. To support his after-the-fact permit application,
Osborne submitted photographs of rip-rap installed by other Circle Lake landowners.
When he complained of selective enforcement at the October 2004 hearing, the
Commissioners asked whether he had filed the photos as complaints. Osborne said,
“I hadn’t at the time. But if you want me to, then I’ll file them as a complaint right
now.” Plaintiffs did not dispute defendants’ summary judgment affidavits averring
that Osborne’s complaints were then investigated.
Nor is there evidence that defendants enforced after-the-fact grading and filling
permit requirements more harshly because Osborne and Sammon engaged in First
Amendment-protected activity. At the October 2004 hearing, when Osborne
complained of selective enforcement, P&Z staff and the Commissioners explained that
the same conditions had been imposed on other after-the-fact permit applicants, and
that one condition was based upon DNR shoreline restoration requirements. The
3
In the district court, defendants submitted affidavits by Anderson and
Wenstrom declaring that they filed the complaints on their own initiative. Osborne
and Sammon complain that the district court granted summary judgment before they
could conduct discovery on whether there was collusion between defendants and these
complainants. But plaintiffs filed a cross motion for summary judgment and never
filed a Rule 56(f) motion asking for a continuance to permit additional discovery.
Thus, the discovery issue was not properly preserved.
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Commissioners also noted a letter from the DNR advising that if Rice County did not
require removal of Sammon’s retaining wall, “then the DNR will.” In responding to
defendants’ motion for summary judgment, Osborne and Sammon failed to refute this
concrete evidence of equal, non-discriminatory enforcement action.
Thus, the summary judgment record establishes that this case is a polar opposite
of Garcia v. City of Trenton, 348 F.3d 726 (8th Cir. 2003), which Osborne and
Sammon cite as “strikingly similar.” In Garcia, the city had a policy of only enforcing
parking restrictions in response to citizen complaints. Despite the absence of such
complaints, the mayor issued a shopowner multiple parking tickets after she
complained about the failure to enforce an unrelated ordinance. The proof of
improper retaliation was clear; the issue in Garcia was whether $35 in parking tickets
was sufficient injury to deter a person of ordinary firmness from continuing to speak
out. Here, by contrast, defendants’ enforcement actions were consistent with their
policy of only investigating citizen complaints, and Osborne and Sammon presented
no evidence that defendants failed to investigate similar complaints or to take similar
enforcement actions against other Rice County landowners.
We review a grant of summary judgment de novo, taking the record in the light
most favorable to the non-moving parties. See Revels v. Vincenz, 382 F.3d 870, 874
(8th Cir. 2004), cert. denied 126 S. Ct. 371 (2005). In their motion for summary
judgment, defendants presented uncontradicted evidence that Rice County only
investigates zoning ordinance violations when a formal complaint is filed; that all
formal complaints are investigated; that formal complaints were filed against Osborne
and Sammon by private citizens acting on their own initiative; that P&Z staff and the
DNR investigated and found permit violations; and that the Commission after a
hearing approved after-the-fact permit applications subject to costly but non-
discriminatory conditions. In response, Osborne and Sammon failed to present
probative evidence that defendants have not enforced the zoning ordinance in the
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same manner against other similarly situated landowners. Therefore, summary
judgment was properly granted. The judgment of the district court is affirmed.
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