In Zutz v. Nelson (CA8) (here) some new County Board suspected that the other members of the Board were cheating taxpayers. Shocking, for sure. After examining the books, the new members confirmed the corruption.
The existing members of the Board then used taxpayer money and connections with the local prosecutor to investigate the board members who invested them. At a Board meeting, the crooked Board members defamed the ethical Board members.
The honest Board members filed a defamation action in state court, which they lost. They then filed a Section 1983 action, alleging retaliation under the First Amendment:
To successfully plead a First Amendment retaliation claim, a plaintiff must plausibly plead that he/she "engaged in protected activity and that defendants, to retaliate for the protected activity, took adverse action against [them] that would chill a person of ordinary firmness from engaging in that activity." Lewis v. Jacks, 486F.3d 1025, 1028 (8th Cir. 2007). The appellants have plausibly pled that they were engaged in protected activity and that the appellees' defamatory comments were madewith an intent to retaliate for the protected activity. But, because they have not plausibly pleaded that the defamatory conduct would chill a person of ordinary firmness, the First Amendment retaliation claim was properly dismissed.
All that the original complaint alleges is that the appellees made defamatory statements regarding the appellants' exercise of their official duties as public officials. While these statements may have damaged the reputation of Zutz and Elseth, we believe that such reputational damage was insufficient to chill a person of ordinary firmness from engaging in the protected activity. We, therefore, affirm the districtcourt's dismissal of the retaliation claim.Having not seen the Complaint and thus lacking personal knowledge of how the First Amendment cause of action was pled, I'll spare you my righteous indignation. Yet the panel opinion seems wrong - clearly wrong and very wrong. The corrupt Board members did not merely hurt the feelings of the honest Board members.
Here is what the corrupt Board members did:
On June 18, 2007, at a formal meeting of the Board, co-Board members Nelson and Stroble complained about the appellants' investigation. Specifically, Nelson and Stroble made statements falsely claiming that the appellants had violated Minnesota law. In an effort to find support for their false accusations, the appellees requested that the Marshall County Commission investigate the matter. County Attorney Michael Williams followed up on this request and hired Rough Rider, a North Dakota investigating firm.
RoughRider's employee, Kamrowski, conducted an investigation and filed a formal report with Williams. The report contained a number of false allegations against the appellants including conclusions that appellants had engaged in improper acts. Despite the allegations in the report, Williams concluded that appellants had not committed any malfeasance.
Although Williams declined to adopt the report's conclusions, appellee Drees sent the report to a wide number of people in Marshall County, thereby falsely representing the report as the final conclusion as to the legality of the appellants' financial investigation. Drees also sent a letter to certain people falsely alleging, among other things, that the Board had lost its insurance as a result of appellants'conduct.The crooked Board members did not merely hurt the honest Board members' feelings. Instead, the Board members initiated a criminal investigation against them. After the investigation cleared the honest Board members, the crooked Board members falsely claimed that the investigated inculpated them.
I am more than a person of ordinary firmness. Yet I'd reconsider taking on City Hall - on in this case, the Middle-Snake-Tamarac Rivers Wastershed District Board - if I knew false criminal accusations would be brought against me. Wouldn't you?
Unless the Complaint was embarssingly-poorly plead, the panel opinion wrongly applied First Amendment retaliation doctrine.