township decision making regarding road repairs and open meeting violations the importance of this case goes well beyond a small township in south dakota if my clients are not given the protection of qualified immunity and claims such as the ones plaintiffs to file based on board members pay or to conduct proper meetings that comply with state open meeting laws are allowed to proceed there is the potential for a section one thousand nine hundred three claim virtually any time an open meeting by violation occurs my argument was addressed three areas where we believe the district court erred first my client should have been protected by qualified immunity from plaintiff's first amendment retaliation claim there was no adverse impact here that would chill a person of ordinary firmness from continuing to speak out second my client should have been protected by a qualified immunity from mary lease first amendment association claim this case is distinguish vs calway county ambulance district and it is unclear than an elected official performing ministerial tasks shares the same association rights as an elected decision maker at a minimum peepers differ anough that the associational rights of mary lee one of the plaintiffs in this case were not clearly established third my client should have been protected by qualified immunity from plaintiff first amendment petition claims because the law does not provide a federal constitutional right to access township board meetings as a district court concluded with respect to the free speech claim if that right exists it is not clearly established and finally as a relates to the cross appeal our position is twofold first with the exception of the appeal of the free speech the district court's decision on the priest beach claim which we agree is intertwined with the qualified immunity issues being appealed by by us the court should decline to exercise pendent  jurisdiction the second part of our argument on the cross appeals is that the district court properly decided all of the issues relating to qualified immunity and dismissed those counts from for the correct reasons to begin with regard to the retaliation claim to prevail but the plaintiffs needed to show that my client's took adverse action against them that would chill a person of ordinary fitness from continuing in their speech activity there is no allegation or proof of anything in the nature of a quote concrete consequence and quote as this court has some tide times referred to it the things raised by the least in this case are they are to give notice of meetings withholding access to certain records and generally making mary lee felt feel unwelcome while we can argue about whether my clients lacked professionalism or acted inappropriately under state open meeting laws there was nothing about their action that was punitive in nature and i think that's that the cornerstone of the retaliation claim is that there has to be some sort of a punitive concrete consequence to the plaintiffs in order to proceed with the retaliation claim wasn't that the allegation was that she was excluded because second of all isn't the type of of punitive concrete consequence that survives a summary judgment motion on a retaliation claim it's that the one i believe the district court said there were still fact issues to be resolved consequence such that the the retaliation claim can survive summary judgment so she's arguing she complained about what the governing body was doing and then in response the governing body didn't notify or about the future meeting that's correct the argument that's correct in that she saying that chilled her from future complaining or with chilled a reasonable person from complaining in the future harassing type conduct among the governmental agency and the plaintiffs and the court in both instances found that that was not sufficient to state a cognizable claim and i really regarded this as being similar in nature although i don't even know that this was in the nature of harassment it was probably in the nature of sloppy township business conducting as opposed to something that was intended with a will or you know intended to keep her from speaking out with regard to they had one witness who said that her speaking up might have had something to do with with what was it with the failure to give notice or what was that in that statement about i believe you're referring to mr driscoll comment which has been cited throughout reefs and i'd like to address that because i think that first what did he say remind me what he said and feel you might have had something to do with why he was asked a question about why the township sent back the fema funds without holding a proper properly doris meeting and getting input from the public yeah his response was well it started off you said something along the lines of well it was kind of business as usual this was not unusual for the township to conduct business like this now again i'm not here to defend the townships manner of conducting business prior to this lawsuit i think there are probably some problems under state law but what i would say is that the the comment that he made there might have something to do with it was not was it was in the context of talking about well it wasn't that unusual for this township to cut checks or do things without actually holding a meeting and i just wanted that to be made clear that while he did say it might have had something to do with it there was more there was more conversation in that transcript that was excluded from the briefing and i think it's significant the court may have been in that fact issues here that need to be resolved i disagree i think that even taken as a whole with respect to the reasons that the township didn't notice these meetings are still not having the type of punitive concrete consequence to the leaves that would give them a claim of retaliation i actually was able was able to give her input on the issues that were going to come meeting right that's why they retaliated supposedly is not right she made her views known that the views have been previously made known at a previous meeting yes that's correct ambulance district and once she obtained her seat on the board the other board members passed a resolution that limited her participation on a wide variety of topics essentially she was one of the decision makers on the board and the other board sort of say when you've got an elected official it's not just the official but it's the voters who chose mary lee to represent them as the township clerk and whether or not those are truly a ministerial task or roles maybe in the eye of the holder you know for example wasn't there some information someone said well now we can do our minutes the way we want to i mean you can take that either way but that's not quite as ministerial if people are viewing what people put in the minutes a ministerial task as being substantive and worth sort of fighting about i understand your point but i guess what i would bring it back to is the fact there were what we're talking about here are our essential open meeting violations you know that they keep using the term excluding her from the meetings but we're talking about is failing to provide notice well the fact is essentially to keep her from doing what her job required her to do which was to manage and follow a true record of all proceedings and how can she do that if if she isn't notified as to when there would be a meeting her responsibility  to be there and to create a record for the benefit of the public it seems a direct effort to avoid that taking place and i do is i don't understand what's the question your honor i guess well the question is it seems as if there is an a an intent to interfere with her performing her elected responsibilities which work to maintain and manage the records of the township particularly of the supervisors meetings and i guess my response to that would be that even if that's true when you read peeper on its face what that tells you about interfering with an elected officials role it doesn't speak to the situation we have here and so i think that there is the issue that we've raised on appeal is whether or not the right is clearly established and whether or not it would be an extension of peeper to go from elected person like that to a clerk that's exactly what i'm saying and if it's an extension in the law then it's not clearly established that's the argument that's exactly the argument  clerk duties that she was elected to perform and also to talk a little bit more about roger lee her husband who is here in the audience with us today this is very important to both roger and mary lee and both of them know a little bit about how elected officials are supposed to act when they represent constituents because merely was an elected township clerk roseman rogers is an elected council county commissioner in the county in which this township is located in south dakota in regard to the allegation that the requirements under the state statutes here for a township clerk are merely ministerial duties we have to differ and explain a little bit more about what the clerk really does it's more than just giving out a notice to the rest of the township that there's going to be a public board meeting it's more than just taking those records she's also or he whoever the county clerk would be are responsible for maintaining those records including the financial audited statements and other things that are kept by the treasurer who is also an elected official there distinction by the defense here is that those people who do not vote who are not supervisors are doing things other than actions that are protected under the first amendment well i think to be more precise the argument is peeper was about someone who is comparable to a supervisor and it's an open question whether what your client was doing is protected in the same way isn't and so i think if you  address it in that context it would be more helpful because it's a qualified immunity appeal absolutely judge calvin if you're a reasonable person in the shoes of the other members of the board here and that would include the treasurer who doesn't vote they all should have known that denying first mary really the right and the obligation that she has as an elected official to perform her duties would be a violation of the first amendment peeper rather than an extension in fact it's the opposite of what this court said in the peeper case was that you can't interfere with those association the rights of the voters and the right of the elected official to perform their duties by restricting their speech it's beyond that here they've not only restricted her right of speech where she was trying to provide input on some of these issues and raising questions about some of these things by saying we shouldn't misuse federal funds and we shouldn't do things that are not right in regard to how we reconstruct this road she was also saying look i got to keep the records and i've got to do those things that are required here they prevented her from doing that and then even after they made these decisions outside of meetings that could have been affected by public discussion and public input they made decisions about how they were going to do the road repair and in addition to that how they were going to address the misuse of the federal funds and the return of those funds that were accepted by the federal government there was a dispute even after that about what the minutes were going to say and that wasn't resolved until they got somebody else elected as township clerk and they modified the minutes the way they wanted them to be written and the record that is now  kept for that township reflects their wishes that's how they prevented mary lee from exercising her duties as a township clerk in addition roger lee had an association all right and there is there we will admit there is no case law in the circuit that says there is a a right of the general public to come to a meeting of the township like this and express their views some of these decisions could possibly be made without public input that's not exactly what we're arguing here though what we're arguing is roger we did races there was a dispute about how to proceed in a meeting in october of two thousand and twelve they excluded everyone they kicked their buddy out and sent everybody home a sensible instead some of the people then went to another location and started talking about these things now the defense wants to this couch this as a violation of open meeting last but it's important from that point on what happened was a series of decisions made by people who don't have decision making authority outside of these statutorily that required open meetings the board acted in a way to retaliate against roger lee and retaliating against his wife because they dared raise these issues that were of public concern that's a violation of their first amendment rights what what's the retaliation here that they couldn't go to the meetings the retaliation is was there some background here i need to explain and it's in the  a larson which is found in the appendix i believe it's at page one ninety one and one ninety two gayle larson was the elected board of supervisors or township supervisor ok so he's the representative for the leaders in their area and they've got what are essentially like districts in the township gail larson was not involved in making some of the subsequent decisions that resulted in the final repairs to this road and the return of money to the federal emergency management agency he was excluded from being able to participate in those decisions and he's also an elected official they excluded mary as the township clerk intentionally because they didn't want her to know about this to give a notice to the public or to keep these records so they could do whatever they wanted however they want and then as i said before to top it off after they make all these decisions they're not i mean let her put down in minutes what she understood their actions to have been and they're going to wait until they can get somebody else elected to township clerk so they can do it the way they want the associational rights and the right to petition for redress were clearly violated here that's clearly established there's no qualified immunity for those things and the district court properly found that in this circumstance we've got issues  fact at a minimum that would preclude qualified immunity for the defendants in their individual capacities and i want to touch briefly on how we think that also is the same evidence that supports a claim for official acts by these defendants and on behalf of the township under the mon el test obviously we have to establish that this was the policy of the board of supervisors or board of the township here excuse me that board repeatedly before this came after this until they were held to account under open meetings law violations that was filed by our clients they were making decisions without holding meetings they testified in their case in depositions including the older school we exclude people because we make these decisions outside of public mood outside of public meetings as a matter of routine that's a custom it was also their policy to make these decisions in that way why because that gets things done efficiently and in this particular case an unelected person who is a relative of the treasurer was the guy who did the contract here and installed all of the work that were disputing and had the issues in regard to the federal funds related to that his brother who doesn't vote but is the treasurer he's like the clerk they don't vote it's the other three a decision as a construction site with his brother and says we're not going to put in this nine foot culvert that we promised the leaders we were going to put in and that's important because they went to an eight foot culvert and although the math might not seem like it when the road was washed out in the flooding in two thousand and eleven there was an eight foot kovan and a three foot culvert if you install a nine foot culvert that's actually a bigger capacity than both the eight and the three foot culvert together that was the minimum standard we think should have been complied with here actually that the study that the township commissioned to apply for and obtain over thirty two thousand dollars in federal funds so you have to put in two thousand foot culverts to mitigate  permanently resolve this issue that was not done in the field they said we're going to go to an eight foot culvert because the nine foot is too expensive and that decision was made by somebody who not who is not a voting member of the township board and then later it was ratified by the others in these meetings that they held without any public notice and without public input that is where we say it became the policy of this township to extend their can their custom of making these decisions and make it the policy of this particular board that they're going to retaliate and they were going to make sure that the leaders were not going to get what they had asked for and there's an a i've referred to before from to larsen he talks about the language that was used in previous meetings up to that point where they didn't care and they used an expletive to talk about how they didn't care about what roger leath order what he was going to get they were going to get him give him what they wanted to g the record does represent here that there is a policy and a practice that became a custom of this board to basically decide things the way they want to and they don't care about  rights they don't care about state open meeting last they don't care about other regulations that would apply to the use of federal funds without that in mind i'm not going to address the other arguments that we've made in support of our cross appeal i want to instead focus on t other issues i haven't discussed yet there was an allegation that there was no adverse injury or impact on mary lee or on roger lee in regard to the decisions that were made by the board or ratified later after decisions had been made as i suggested before by folks who had no business doing that now what happened this mary lee is adversely impacted by not being able to perform her duties we've already talked about that secondarily she's also impacted because she's prevented from expressing her views on an issue of very important public matters for not only her but also be a larson the other representative who is elected in that region and all the other farmers and homeowners in that area who use that road ultimately we do end up with a road that is different from any other road in that township the record reflects here and unfortunately judge p district court level didn't see it this way but the record is very clear that they are the only ones who are subjected to erode that washes out every ten years or so because they didn't build this road and then rebuild after the flooding to meet the minimum standard which is a ten year flooding event or ten year rainfall event they're the only ones who have to put up with what they call low water crossing because after they got in trouble for using fema funds for a project that they didn't build to the to the  agreed standards they put in a foot culvert in the three foot culvert that had already washed out once because they were inadequate and then to top it off they said well we're going to because we get to decide how to fix us and there's no authority for the lease or anyone else under state law to dictate how we do this road repair we're going to put in what we call low water crossing and that's basically a big dip in the road now could i go back and ask you about the adverse action point that would be asked to roger lee in regard to his attempts to petition for for redress or to speak on these issues as summarily in her capacity of the citizen that's also the same test but in addition to that the adverse injury here adverse impact is the fact that she's prevented from doing the very things that she has elected to do ok well on the citizen aspect of it how is that their children from speaking out as i understand they spoke out they were heard by the board and then the board close the next meeting and that's the alleged retaliate in that they were then allowed to participate in the next meeting you may write on the facts a little different from that they they had a meeting that was that was contentious they kicked everybody out then under state law it's considered to be a meeting yes a quorum of the voting members of the township board get together to discuss matters they didn't have an actual meeting they made decisions and some of them were ratifications of things that were decided by the treasure doesn't vote others were decisions about how to write a back and you're saying that your clients say they should have been able to participate in that or to be involved in that decision making yes as to well but how are they chill by the fact that they weren't allowed to be in that i mean well why would they then decide not to speak out it's the ultimate chilling because they were not allowed to have any input because merely didn't know that they were meeting and she's the one who's supposed to give notice to the public that they're going to be a meeting so they were they had no opportunity to participate everything it's done there they're told about it after the fact and they can't do anything about it so and that her ability to communicate to the public is not hindered correct you they're they're not able to communicate to the public and they're not able to then go to their neighbors and create enough through their associational rights anough of a groundswell of support to come into the township board and try to convince these people who are punishing them or who are retaliating against them to not do these things or to look at reasonable alternatives roger lee was i see my time is up but roger lee was also going to offer and try to work with the county or the state to come up with other fans and they want to argue this is strictly a fiscal decision well they didn't even consider other options so the lees were chilled from being able to pursue that and come up with some other alternatives for what they had already decided they were going to do thank you o made the comment that the district court did not see it the same way with respect to the road repairs and the policy and custom of the township and i think the reason for that is that because those facts were in the record if you look  at the record in this case there was no statement of undisputed material facts filed by the plaintiffs or any sort of response or our facts so that the facts of the district court was looking at were were undisputed with respect to the road repair issue specifically it was under speed of that the township was faced with with the somewhat of an untenable situation either they return the coverts to the exact same way that they were prior to the washout or they would go with the hazard proposal that would involve the township spending considerably more funds that it didn't have in order to repair that situation anything else they did was on their own dime and so i don't think the district court got anything wrong with respect to the the road repair issue i think the district court looked at what record what facts were actually presented in the record and made its decision based on that the same would be true with respect to the mo now claim there was absolutely no evidence presented of anything beyond the two hundred nineteenth street project that would show a policy customer practice of this township such as what's been alleged here today and there certainly were no undisputed facts presented to that effect and so i don't think there was any basis in the record for the district court to decide the mono claim any differently than it did  those are the only comments i have your honor unless you have any questions i see no thank you mr peterson or wishes to thank both counsel for your presence and arguments you provided to the court the briefing that you submitted