Significant Decisions From the United States Court of Appeals for the First Circuit

1. Significant DecisionsFrom the United StatesCourt of Appeals for the First Circuit Office of the Maine Attorney General Continuing Legal Education Program July 27, 2011

2. Topics Addressed • Attorneys’ Fees • First Amendment • Judicial Immunity • Establishment Clause • Procedural Due Process • Contracts Clause • Preemption

3. Hutchinson v. Patrick636 F.3d 1 (1st Cir. 2011) Attorneys’ Fees Settlement agreement can trigger award of attorneys’ fees if: • Approved by court • Court substantively reviewed the agreement • Court retained jurisdiction to enforce compliance and approve modifications

4. Foote v. Town of Bedford642 F.3d 80 (1st Cir. 2011) First Amendment In claim by public employee that he was retaliated against for exercising First Amendment rights, three-step test applies: • Determine whether employee spoke as a citizen on a matter of public concern • Balance employee’s First Amendment interests against interests of employer in providing effective and efficient services (Pickering test) • Determine whether protected expression was a substantial or motivating favor in adverse employment decision

5. Foote v. Town of Bedford(continued) • Under Elrod/Branti, government employer can discharge policy-making employees merely because of their party affiliation • Elrod/Branti also applies to public employee/public speech cases and will generally dictate that the Pickering balancing test be struck in favor of the government employer when • employee held policy-making position and 2) expressed views on policies relating to his position

6. Foote v. Town of Bedford(continued) • Two-pronged analysis for deciding whether position is a policy-making one: • Position deals with matters that are potentially subject to differences of opinion on policy grounds and position has the capacity to influence the resolution of such matters • Responsibilities of the position sufficiently resemble those of a policy-maker

7. Decotiis v. Whittemore635 F.3d 22 (1st Cir. 2011) First Amendment Public employee’s speech is not protected if she was speaking pursuant to her official responsibilities, but it may be protected if she was speaking as a citizen. Factors to consider: • Whether employee was paid to make speech in question • Subject matter of the speech • Whether speech made up the chain of command • Whether employee spoke at her place of employment • Whether speech gave objective observers the impression that the employee represented the employer when she spoke • Whether the speech derived from special knowledge obtained during the course of employment • Whether there is a citizen analogue to the speech

8. Griswold v. Driscoll616 F.3d 53 (1st Cir. 2010) First Amendment Commissioner of Education did not violate the First Amendment when, in response to political pressure, he removed from a curriculum guide references supporting the view that there had not been an Armenian genocide • Local officials have considerable discretion in establishing curricula for their schools • Developing body of law recognizes the government’s authority to chose viewpoints when the government itself is speaking (government speech doctrine) • Distinguishable from Pico, where plurality concluded that a school board could not remove books from school library for the purpose of denying students access to ideas unpopular with board members

9. Guzman-Rivera v. Lucena-Zabala642 F.3d 92 (1st Cir. 2011) Judicial Immunity Applies to licensing boards if: • Board performs “traditional adjudicatory function” • Board decides “sufficiently controversial” cases • Board operates under “procedures designed to protect respondents’ constitutional rights”

10. Freedom from Religion Foundation v. Hanover School District626 F.3d 1 (1st Cir. 2010) Establishment Clause State law requiring public schools to provide a period for the voluntary recitation of the Pledge of Allegiance did not violate the Establishment Clause : • Law had secular purpose (promotion of patriotism) • Students not required to recite the Pledge • Two word phrase “under God” couched in a non-religious text • Objective observer would not conclude that government was endorsing religion

11. URI Student Senate v. Town of Narragansett631 F.3d 1 (1st Cir. 2011) Procedural Due Process Town ordinance authorizing police to post orange stickers at houses hosting “unruly gatherings,” without first affording the landlords or tenants an opportunity for a hearing, did not violate the Due Process Clause: • One’s reputation is not a protected liberty or property interest • Must show adverse affect on a “more tangible” interest (“stigma plus” claim) • Adverse impact to right or status conferred by law, and; • Impact is “directly attributable” to governmental action • Plaintiffs satisfied neither element

12. United Automobile, Aerospace, Agricultural Implement Workers ofAmerica International Union v. Fortune633 F.3d 37 (1st Cir. 2011) Contracts Clause Law suspending certain protections and benefits under public employees’ collective bargaining agreements did not violate the Contracts Clause Two Prong Test • Whether law “substantially impaired” contractual relationship • Whether impairment was “reasonable and necessary to serve an important government purpose”

13. DiFiore v. American Airlines2011 WL 1902148 (1st Cir. 2011) Preemption State law that prohibited employers from requiring employees to turn over service charges given to them by customers was preempted by federal law with respect to its application to airlines and skycaps: • Airline Deregulation Act declares that no state may “enact or enforce a law . . . related to a price, route, or service of an air carrier.” • State law, while generally applicable to all employers, had a direct connection to airlines’ prices and services and was therefore preempted