TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES,
MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and
CARSON, Circuit Judges.
matter is before the court on the appellant's
Petition for Rehearing En Banc. We also have a
response from the appellees.
petition and response were circulated to all judges of the
court who are in regular active service. A poll was called,
and a majority of the judges voted to deny the request for en
banc review. See Fed. R. App. P. 35(a).
Consequently, the petition is denied.
Briscoe, Lucero, Phillips and McHugh voted to grant en banc
rehearing. Judge Lucero has prepared the attached written
dissent from the denial of en banc rehearing, in which Judges
Briscoe, Phillips and McHugh join.
LUCERO, Circuit Judge, joined by BRISCOE, PHILLIPS, and
McHUGH, Circuit Judges, dissenting from the denial of en banc
this a routine case in which en banc reconsideration had been
denied, that of course would end the matter. But this is not
an ordinary case. The proposition that the custody of a child
does not ultimately involve a matter of public concern is
untenable, particularly so given the statutes and precedents
of the state of Colorado, which expressly and dispositively
announce the public policy of the state as being directly to
the contrary. The further proposition that local governments
may sanction employees for testifying on such matters in the
public courts and tribunals of this circuit is a dangerous
and highly corrosive precedent-the adversary system depends
on free and open adjudication in which parties have a right
to call witnesses to testify on their behalf and witnesses,
be they public or private employees, have the right and duty
to testify when called in the open courts of our circuit. The
precedent announced by this panel, which allows local
governments to interfere with both the rights of litigants
and witnesses and in which the local government has no
concern, must not be allowed to stand.
is an existing circuit split on the extent to which the
constitution protects sworn testimony in judicial
proceedings. To date, the Court has elected to resolve the
issue by its 2014 decision in Lane v. Franks, 573
U.S. 228 (2014). That case mandates that "the form and
context of the speech-sworn testimony in a judicial
proceeding- fortify th[e] conclusion" that such speech
involves "matters of significant public concern."
Id. at 236-37. Lane protects such speech.
The panel acknowledges that holding in Lane, but
concludes that the child custody proceedings at issue were
not "of interest or concern to the community at
large." Butler v. Bd. of Cty. Comm'rs for San
Miguel Cty., 920 F.3d 651, 664 (10th Cir. 2019). In
other words, the panel concludes that the content of
Butler's speech in child custody proceedings is so
personal in nature as to overwhelm the presumption that such
speech raises a matter of public concern. I respectfully,
but most assuredly, dissent from the unwillingness of my en
banc colleagues to correct this error.
Butler was demoted for providing truthful testimony in a
judicial proceeding weeks after his promotion to the position
of District Supervisor for the San Miguel County Road and
Bridge Department. On his own time, he testified as a
character witness in child custody proceedings involving his
sister-in-law and her ex-husband, a fellow employee of the
Department. Butler testified in his own capacity during non-
working hours and off the premises of his employer. Had
Butler not testified willingly regarding the character of his
sister-in-law, the record tells us that he would have been
compelled to testify under subpoena.
child custody proceeding, Butler testified truthfully about
his sister-in-law's character. Butler also testified
truthfully about the working hours of the Department.
Following an investigation conducted by his supervisors just
weeks after his testimony, Butler was demoted and given a
written reprimand for having testified.
First Amendment's primary aim is the full protection of
speech upon issues of public concern." Connick v.
Myers, 461 U.S. 138, 154 (1983). The Supreme Court
"has frequently reaffirmed that speech on public issues
occupies the highest rung of the hierarchy of First Amendment
values, and is entitled to special protection."
Id. at 145 (quotation omitted). To determine whether
speech rises to a matter of public concern, we assess the
"content, form, and context of the speech."
Lane, 573 U.S. at 241 (quotation omitted).
the form and context of sworn testimony in judicial
proceedings weigh so strongly in favor of treating speech as
a matter of public concern, we had never previously held such
speech to be not "of interest or concern to the
community at large." Butler, 920 F.3d at 664.
Whenever testimony in a judicial proceeding has come before
us, we have declared it to raise a matter of public concern.
See Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d
1176, 1181 (10th Cir. 2018) (character testimony in a
sentencing proceeding implicates public concerns);
Deutsch v. Jordan, 618 F.3d 1093 (10th Cir. 2010)
(testimony responding to a charge of public corruption is a
matter of public concern); Worrell v. Henry, 219
F.3d 1197 (10th Cir. 2000) (testimony of an investigator in a
criminal trial as a paid expert raises a matter of public
concern). So, too, has the Supreme Court. See Lane,
573 U.S. at 236-37 (testimony in criminal proceedings
regarding public corruption raises a matter of public
concern). Our sibling circuits, the Third and the Fifth, have
adopted an absolute rule that the First Amendment protects
all testimony in judicial proceedings as raising a
matter of public concern. See Green v. Philadelphia Hous.
Auth., 105 F.3d 882, 887 (3d Cir. 1997); Johnston v.
Harris Cty. Flood Control Dist., 869 F.2d 1565, 1578
(5th Cir. 1989).
those circuits that reject the per se rule recognize the
powerful presumption towards treating sworn testimony in a
judicial proceeding as raising a matter of public concern.
See Catletti ex rel. estate of Catletti v. Rampe,
334 F.3d 225, 230 (2d Cir. 2003) ("The paramount
importance of judicial truth-seeking means that truthful
trial testimony is almost always of public
concern." (emphasis added)); Wright v. Illinois
Dep't of Children & Family Servs., 40 F.3d 1492
(7th Cir. 1994) (rejecting a per se rule, but explaining
"surely an employee summoned to give sworn testimony in
a judicial proceeding has a compelling interest in testifying
truthfully and the government employer can have an offsetting
interest in preventing her from doing so only in the rarest
of cases" (emphasis omitted)). The panel opinion ...