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Butler v. Board of County Commissioners for San Miguel County

United States Court of Appeals, Tenth Circuit

June 4, 2019

JERUD BUTLER, Plaintiff - Appellant,
v.
BOARD OF COUNTY COMMISSIONERS for San Miguel County, et al., Defendants - Appellees.

          Before TYMKOVICH, Chief Judge, BRISCOE, LUCERO, HARTZ, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, and CARSON, Circuit Judges.

          ORDER

         This matter is before the court on the appellant's Petition for Rehearing En Banc. We also have a response from the appellees.

         The 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.

         Judges 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 rehearing.

         Were 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.

         There 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.[1] I respectfully, but most assuredly, dissent from the unwillingness of my en banc colleagues to correct this error.

         I

         Jerud 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.

         At the 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.[2]

         II

         "[T]he 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).

         Because 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).

         Even 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 ...


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