* Of the Northern District of California, sit ting by

designation. 

# United Stat es Court of Appeals

For the First C ircuit

Nos. 02-2521, 03-1038, 03-1090

CHRISTY PETER MIHOS, Plaintiff, Appellee/Cross-Appellant,

v. JANE SWIFT, Individually and in her Official Capacity as the ACTING GOVERNOR OF THE COMMONWEALTH OF MASSACHUSETTS,

Defendant, Appellant/Cross-Appellee, and WILLIAM F. GALVIN, in his Official Capacity as SECRETARY OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge ]

Before Torruella and Lipez, Circuit Judges , and Schwarzer, * Senior U.S. District Judge .

Thomas A. Barnico , Assistant Attorney Gener al , with whom Thomas F. Reilly , Attorney Gener al, and David R. Kerrigan , Assistant Attorney General, was on brief, for appellant. HarveyA. Schwartz , with whom Laurie Frankl and Rodgers, Powers & Schwartz LLP were on brief, for appellee.

_____________________________ February 13, 2004-2- LIPEZ, Circuit Judge . In 2002, then-Acting Governor Jane Swift fired Christy Peter Mihos and Jordan Levy from their positions as members of the Massachusetts Turnpike Authority after both men cast vote s on the timing of certain toll increases on roads and tunnels in Massachusetts. In this action, Mihos brought suit against Swift under the First and Fourteenth Amendments and 42 U.S.C. § 1983, alleging that Swift violated his First Amen dme nt rights by removing him in retaliation for voting against her wishes

on t he toll increases. Swift filed a motion to dismiss, raisi n g the defense of qualified immunity.

Although the pleadings never advanced beyond Swift's motion to dismiss, the district court issued two rulings in this case, see Mihos v. Swift , 2002 WL 31455257 (D. Mass. 2002)(" Mihos I ") and Mihos v. Swift , 235 F. Supp. 2d 45 (D. Mass. 2002)(" Mihos II "). In it s fi rst ruling, the court held that Swift violated Mihos's First Amendment rights, rejectedSwift's qualified immunity defense, and denied Swift's motion to dismiss the cl aims against her in he r individual capacity. In its second ruling, the court entereda declaratory judg ment that Swift violated Mihos's First Amendment rights but essen tially changed course on qualified immuni ty, ru ling that the law protected Swift against claims for damages arising from the violation of Mihos's First Amendment rights. Specifically, the court entered a final judgment that included these provisions:1 Three appeals have b ee n filed in this case. The first, 02-

2521 , is Swift's appeal from the court's denial of her motion to dismiss in Mihos I . The second, 03-1038, is Mi hos's appeal from the court's denial of damages in Mihos II. The third, 03-1090, is Swift's appeal from the court's award of a declaratory judgment to Mihos in Mihos II . Accordingly, Swift is designated as the "Defendant, Appellant/Cross-Appellee," and Mihos is designated as the "Plaintiff, Appellee/Cross-Appellant." Additionally, William F. Galvin, in his official capacity as the Secretary of the Commonwealth of Massachusetts, is captioned as the "De fendan t" on these appeals. After a state court proceeding orderedMihos re i nstated, Mihos's request for injunctive relief against Swift and Galvin was moot. Consequently, Mihos's motion to dismiss the claims against Swift in her official cap acity and against Galvin entirely was granted on October 29, 2002, and there is no appeal pending in this matter regarding Secretary Galvin. -3- (1) Plaintiff, Christy Peter Mihos, is awarded the following declaratory relief: It is hereby declaredthat Acting Governor Jane M. Swift, acting in her official capacity, violated his legallyprotected rights by retaliating against him for his voting, in his official capaci ty as Massachusetts T urnpik e Commissioner, contrary to her communicated wishes. (2) All claims of Mihos for damages and for any other form of rel ief beyond that allowed in paragraph (1) of this judgment are DISMISSED WITH PREJUDICE. Mihos II , 235 F. Supp. 2d at 63.

Swift appeals the court's denial of her motion to dismiss in Mihos I and the declaratory judgment entered against her in Mihos II . Mihos appeals the ruling denying his claims for damages. 1 For the reasons set forth h erein, we affirm the denial of the motion to dismiss, vacate the declaratory judgment and the denial of damages, and remand for further proceedings.-4- I. This case comes to us with two lengthy state co urt opinions and two district court opinions already filed. See Levy

v. The Acting Governor , 435 Mass. 697, 761 N.E.2d 494 (Mass. 2002)(" LevyI "); Levyv. The Acting Governor , 436 Mass. 736, 767 N.E.2d66 (Mass. 2002)(" Levy II "); Mihos I , 2002 WL 31455257 (D. Mass 2002) ; and Mihos II , 235 F. Supp. 2d 45 (D. Mass 2002). Because the extensive and undisputed factual background of this case has been set forth fully in published opinions, particularly in Levy II , we will confine our recitation of the facts to those pertinent to our holdings. The findings and analysis of each prior opinion are discussed below where relevant to the issues now before us on appeal. A. Background

Governor Paul Cellucci appointed Christy Peter Mihos to the Massac huse tts Turnpike Authority in December 1998 to fulfill the unexpired term of a departing member. In July 1999, Governor Cellucci reappointed Mihos to the Turnpike Authority to a full eight-year term. In May 2000, Mihos was elected vice-chairman of the Turnpike Authority.

The Turnpike Authority is "a body politic and corporate" and"a public instrumentality" authorized to operate the Massachusetts Turnpike and certain other roads known as the Metropolitan Highway System, including the Massachusetts Turnpike,-5-

its extension into Boston, and the tunnels under Boston Harbor (the Sumner Tunnel, the Callahan Tunnel, and the Ted Williams Tunnel). Mass. Gen. Laws ch. 81A, §§ 1, 3. Three members, each of whom is appointed by the Governor, comprise the Turnpike Authority, and a two member quorum is required to conduct business. Id. at § 2. Through agreements with the Massachusetts Highway Department, the Turnpike Authority is responsible for certain aspects of the design andco n struction of the Central Artery/Tunnel Project, commonly known as "the Big Dig." Additionally, the Turnpike Authority bears sole r espo nsibility for establishing tolls for the Turnpike, the Boston Harbor tunnel crossings, and the Metropolitan Highway System. This toll-setting responsibility gave rise to the dispute between Mihos and Swift. The Execut ive Office of Transportation andConstruction, the Turnpike Authority, and Governor C ellucci reacheda consensus in late 1996 or early 1997 that tolls should be raisedin 1997 and again in January 2002. In April 2001, thenLieutenant Governor Swift took office as Acting Governor when Cellucci departed to accept an ambassadorial posting. During the latter part of 2001, Mihos and Levy became concerned about the proposals to imp leme nt toll increases on portions of the Massachusetts Turnpike in January 2002. Following investigations of the financial impact of the propo sed to ll increase, including consulting with attorneys, financial experts, and bondcounsel for-6-

the Authority, Mihos and Levy concluded that the toll increase was neither necessary as a matter of law nor in the best interests of the Turnpike Authority. Swift, however, supported the January 2002 increase. On October 30, 2001, the three Turnpike Authority members met. A motion to raise the tolls in January 2002 failed for want of a second. Subsequently, a motion to increase the tolls in July 2002 was made, seconded, and passed in a 2-1 vote, with Mihos and Levyin favor. Swift deliveredletters t o Mihos and Levy dated November 16, 2001, notifying them that she was removing them from their positions as members of the Turnpike Authority. B. The State Court Proceedings Following receipt of those letters, Mihos and Levy filed

a verified complaint in the Supreme Judicial Court of Massachusetts seeking, inter alia, declaratory relief that Swift lacked authority to remove members of the Turnpike Authority. The Supreme Judicial Court (SJC) rejected that argument and rul ed instead that Mass. Gen. Laws ch. 30, § 9 "confers on the Acting Governor the power to

remove a member of the Massa chus etts Turnpike Authority in accordance with the terms of that statute." Levy I , 435 Mass. at 700. After this ruling, Swift conducted hearings to determine whether she would remove Mihos and Levy from their positions on the Turnpike Authority for cause. By letter dated February 6, 2002,2 See Englandv. Louisiana State Bd. of Med. Examiners , 375

U.S. 411, 421 (1964)(holding that a party may inform the state court "that he intends, should the state court[] hold against him on the question of state law, to return to [federal] District Court for disposition of his federal contentions.").

-7- Swift notified Mihos and Levy that she was removing them from office, asserting that the principal cause for removal was the fiscal irresponsibility of their votes at the October 30, 2001 meet ing. Mihos and Levy again sought review, in the nature of certiorari, under Mass. Gen. Laws ch. 249, § 4, in county court. Asingle justice reversed and referred the matter to the full court. The SJC held, inte r alia, that "the dispute involves a difference of opinion over policy that, in the circumstances, does not constitute substantial evidence of cause to remove" and vacated the order of dismissal. Levy II , 436 Mass. at 737 . Mihos and Levy were duly restored to their positions and received back pay.

C. The District Court Proceedings In addition to seeking review in state court, Mihos reservedhis right to press his First Amendment claim in federal district court, which he did simultaneously with the state court proceedings. 2 In his district court complaint, Mihos alleged that Swift violated his First Amendme nt r ights by retaliating against himbecause of his vote regarding the timing of the toll increases, andhe sought, inter alia, declaratory relief, compensatory and punitive damages, and attorney's fees. Swift responded with a-8-

motion to dismiss, asserting the defense of qualified immunity. Both parties agreed that discovery should be sta yed pending the resolution of the qualified immunity issue. On October 29, 2002, the district court rejected Swift's qualified immunity defense and deniedher motion to dismiss. Mihos I , 2002 WL 31455257 at *7-*8. The district court then stated that "[t]he only remaining issue or issues this court must decide concern what relief to plaintiff is appropriate," and ordered that the parties' arguments on damages wouldbe heard at the next case management conference. Id. at *8.

Pursuant to the district c o urt's request, the parties submittedmemoranda regarding plaintiff's claim for compensatory andpunitive damages, as well as attorney's fees. Addit ionally, plaintiff sought discovery on issues relating to punitive damages. After denying the discovery request, the district court issued an opinion and final judgment on December 17, 2002. Mihos II , 235 F. Supp. 2d 45 . The district court declared that Swift "violated [Mihos's] protected rights by retaliating against him for his voting." However, even though the district court prev iously had ruledin Mihos I that Swift was not entitled to qualified immunity , it held that Swift's own First Amendment interests served as a3 We recognize that qualified immun ity, in its full scope,

shields public officials fromthe burdens of lawsuits and damages. See, e.g. , Guzman-Rivera v. Rivera-Cruz 98 F.3d 664, 666 (1st Cir. 1996)("The qualified immunity defense exists not only to shield officials from liability for damages, but also to protect them from the general costs of subjecting officials to the risks of trial. . . .")(internal quotations and citations omitted).

4 For example, the district court wrote in Mihos II that to comport with constitutional and other fundamental principles, [Swift] says qualified immunity should be recognized where a public official is required to exercise her judgment andform an opinion as to a balance between competing interests, so long as the official does not knowingly or recklessly rely upon irrelevant considerati ons or fals e information, or ignore contrary information. Here, defendant Swift asserts that she exercisedher judgment and acted on her opinion in fact-specific circumstances as to which previous cas es c ould only have been of limitedassistance as to the appropriate weighing of clashing rights asserted by the parties. Swift says no showing has been made byMihos that Swift acted in reckless disregardof information not supporting her opinion, or relied upon irrelevant or false considerations. Accordingly, she should be protected from personal liability. I conclude that First Amendment precedents identified in all the preceding parts of this opinion support this assertion by defendant Swift. Mihos II , 235 F. Supp. 2d at 57.

-9- shieldto damages, essentially granting Swift qualifiedimmunity, 3 regardless of the terminology it employed. 4-10- Swift appealed the declaratory judgment in Mihos II and the denial of qualified immunity in Mihos I , andMihos appealed the denial of any claim for damages in Mihos II . Both parties argue that the record before the district court in Mihos II was inadequate to support the ruling against them.

II. We first address the dis tric t court's rulings in Mihos II . Then, because the scope of the record necessarily affects our analysis of Swift's qualified immunity defense in Mihos I , we turn next to determining the record that was properly before the district court. Finally, we analyze Swift's qualified immunity defense in light of that record. A. The Mihos II Rulings: Declaratory Judgment for Mihos and

Judgment for Swift on Mihos's Damages Claim Swift seeks reversal of the declaratory judgment that she violatedMihos's First Amendment righ ts, arguing that it was prematurelyentered. We agree. For a pl aintiff to overcome a qualified immunity defense, he must show that his allegations, if true, establish a constitutiona l vi olation; that the right was cl earlyestablished; and that a reasonable official would h av e known that her actions violated the constitutional right at issue. See Suboh v. District Attorney's Office of Suffolk Dist. , 298 F.3d 81, 90 (1st Cir. 2002). However, the denial of qualified immunity to a defendant does not translate into a victory for a plaintiff on-11-

the merits. A determination that the "plaintiff's allegations, if true, establish a cons titu tional violation," Hope v. Pelzer , 536 U.S. 730, 736 (2002), does not mean that the plaintiff's allegations are true. It simply m eans tha t the case may go forward. The court had no basis for entering a declaratory judgment for Mihos on the constitutional violation claim.

The judgment for Swift on Mihos's damages claim presents

a different problem. Although th e dist rict court avoided the language of qualified immunity in its ruling against Mihos, its conclusion that Swift did not have to answe r in damages for a violation of Mihos's First Amendment right was tantamount to a qualifiedimmunity victory for Swift. As such, the denial of damages in Mihos II was a reversal of the district court's ruling in Mihos I , which rejected Swift's qualified immunity defense ent irely. The overriding question is which qualified immuni t y ruling was correct. If the court's rejection of qualified immunity in Mihos I was right, its acceptance of qualified immunity in Mihos II was wrong. For reasons we shall explain, the district court's first ruling was correct. Consequently, the district court erred in dismissing Mihos's damages claim. B. The Scope of the Record When a motion to dismiss is based on the complaint, as it is here, the facts alleged in the co mplai nt control. Behrens v. Pelletier 516 U.S. 299, 309 (1996)("[T]he legally relevant factors-12-

. . . will be different on summary judgment than on an earlier motion to dismiss. At that earlier stage, it is the defendant's conduct as alleged in the complaint that is scrutinized for 'objective legal reasonableness.'")(emphasis in the original); see also Dirrane , 315 F.3d at 69 n.2. However, as always, there are exceptions to the rule. Watterson v. Page , 987 F.2d 1, 3 (1st Cir. 1993)(describing "narrow exceptions for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiff's claim; or for documents sufficiently referred to in the complaint.")

At issue here is whether andto what extent one of these exceptions encompasses the SJC's decision in Levy II . That is, we must determine whether the decision of the SJC in Levy II changed the rules applicable to a motion to dismiss when evaluating Mihos's claimin his federal lawsuit that Swift's motivation for firing him

was constitutionally proscribed. In her reply brief, Swift neatly

sums up the course of action taken by the district court: "the District Court assumed the facts alleged in the complaint to be true, disregarded allegations concerning the subjective intent of the Governor [and] relied on the decisions of the Supreme Judicial Court to explain the course of the proceedings and the Governor's stated grounds for removal. . . ." We agree with Swift that this is the course of action the district court took; however, that course was misguided.-13- Because Swift's "motivation in effecting the discharge is

a n essential element of [Mihos's] constitutional claim ," th e motivations for Swift's actions are crucial to this case. Feliciano-Angulo v. Rivera-Cruz , 858 F.2d 40, 45 (1st Cir. 1988). As we explain in Part C.1.b. infra , the motivation element of the constitutional claim does not disappear at the qualified immunity stage. Acevedo-Garcia v. Vera-Monroig , 204 F.3d 1, 12 (1st Cir. 2000)(affirming "the rightness of the district court's consideration of motivation in r ejecting the qualified immunity defense. . . .").

Here, relying on Levy II for findings about Swift's motivations for firing Mihos, the district court found that "[i]n the exercise of her discretion, Swift had concluded that Mihos'[s] 'acts and omissions concerning the Authority's finances, particularlyduring t he time period culminating with the Authority's Octob e r 30, 2001[,] [b]oard meeting and immediately thereafter, were fiscally irresponsible, resulting in adverse consequences of substantially decreasing projectedrevenues of the Authority, d amag ing the Authority's credit outlook, and creating financial instability.'" Mihos II , 235 F. Supp. 2d at 48 (quoting Levy II , 436 Mass. at 744). Similarly, the district court determined, based on Levy II , that "Swift further found that the alternative revenue plan prepared by Mihos was created 'hurriedly' andin a 'haphazard' manner, and that it did not 'adequately'5 In reciting these reasons from Levy II , the dis trict court

ignoredlanguage in Levy II finding that many of the nonretaliatoryreasons for the terminations advanced by Swift were supportedby "no evidence." See, e.g. , Levy II , 436 Mass. at 749- 51 ("There was no eviden ce that the vote to 'delay' the toll increases violated any covenant in th e 1997 and 1999 trust agreements or their corresponding bond prospectuses. . . . There is no evidence that Levy and Mihos failed to do anything legally required of them. . . . There is no requirement to generate 'new revenues'. The plan satisfies the Authority 's ex isting obligations. . . . [Mihos's and Levy's] plan had not been the -14- compensa te for the revenues that had been lost as a result o f [Mihos's and Levy's] actions." Mihos II , 235 F. Supp. 2d at 48 (quoting Levy II , 436 Mass. at 746)(alterations in the original).

Basedon these findings, the district court "conclude[d] that these claims by Mih os ar e barred by the First Amendment and other protections against an award of damages for the good faith performance of pub lic duties by the Acting Governor of the Commonwealth." Mihos II , 235 F. Supp. 2d at 62 (emphasis added). Further, the district court characterized Swift as "an energetic, strong, and committed governor . . . who has rendered creditable service to the public by standing fast in the assertion of deeply heldconvictions." Id. Finally, the district court found that the "expressive elements of Swift's actions arise out of the exercise of her discretion in performing her duties as the Acting Governor

o f t he Commonwealth. Swift was required to exercise that discretion because she was faced with what she perceived to be, among other things, gross fiscal irres ponsibility on the part of [Mihos.]" Id. at 57-58. 5result of 'haphazard' planning. . . . There was nothing haphazard

about [M ih os's and Levy's] actions. . . . Contrary to the Governor's contention, t here w as no obligation to vote on the proposedtoll increases and the alternative revenue plan at the same time.")

6 In her reply brief, Swift also urges that Levy II is part of t he record because Mihos "made specific reference to th e proceedings before the SJC in his complaint." See, e.g. , Watterson v. Page , 987 F.2d 1, 3 (1st Cir. 1993)("documents sufficiently referredto in the complaint" can be properly considered on a motion to dismiss). In paragraph 16 of the complaint, Mihos stated that "[f]ollowing proceedings in the Massachusetts Supreme Judicial Court, the defendant Acting Gov. Swift held hearings concerning the removal of Mr. Mihos and Mr. Levy." This is the only reference in the complaint to the state court proceedings, and simple chronology compels the conclusion that Mihos was not referring to Levy II : the complaint was filed almost three months before Levy II was decided. We need not d ecide whether this reference is sufficient to expressly incorporate LevyI into the record. The findings in Levy I are not germane to the issues on appeal, and neither party relies on Levy I for their legal arguments in the briefs. -15- Swift claims that the district court properly relied on Levy II in making thes e de terminations regarding her motivations for firing Mihos because, according to Swift , fede ral courts may take judicial notice of related decisions of state courts when ruling on a motion to dismiss . 6 In essence, Swift urges that the SJC's findings in Levy II estop Mihos fromalleging in this federal lawsuit that her motives for firing him were other than those described by the SJC in Levy II .

This argument misapprehends the scope of issue preclu sion: "When an issue of fact or law is actually litigated anddetermined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a-16-

subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27 (1982)(emphasis added). It follows from this hornbook definition of issue preclusion that the district court made improper use of Levy II in deciding Mihos II . The task before the SJC in Levy II

was to decide whether Swift's stated reasons for terminating Mihos satisfiedthe "for cause" standard. The SJC did not address whether Swift's stated reasons were actually the reasons that motivatedher actions. Indeed, the court stated specifically that "the Governor's good faith and honest judgment play no part in the instant matters affecting the Authority." Levy II , 436 Mass. at 749. In other words, the SJC accepted Swift's sta ted r easons as true for purposes of their analysis of "for cause" dismissal under Massachusetts l aw. Mihos's complaint alleges a different motivation: that "Swift was enraged" at Mihos's vote and fired him "in direct retal iation" in an act of "political interference and intimidation." The district court denied Mihos the opportunity to pursue discovery on these allegations, despite the central role that motivation plays in First Amendment politic al re taliation claims. We conclude that the district court's reliance on Levy II in assessing Swift's actual motivation for firing Mihos was imp roper sinc e that issue was never litigated. As we have said before, "when two adversaries concentrate in attempting to resolve7 We need not address at this juncture the exact contours of

the proper use of Levy I and Levy II in the proceedings on remand. BeyondSwift's attempted reliance on the motivation issue, neither partyseeks to bring other findings in the Levylitigation into the record. -17- an i ssue i mportantly involved in a litigation, there is no unfairness in considering that issue settled for all time between the parties and those in their shoes. But . . . it is unfair to close the door to issues which have not been on stage center, for there is no knowing what the white light of controversy would have revealed." Farmington Dowel Prods. Co. v. Forster Mfg. Co., Inc. , 421 F.2d 61, 79 (1st Cir. 1969).

The statements in Levy II related to Swift's motivation do not fall within one of the exceptions to the general rule that the facts alleged in the complaint control on a motion to dismiss. Accordingly, we limit the factual considerations in our qualified immunity analysis to the allegations in Mihos's complaint. 7 C. Qualified Immunity Having ascertained the scope of the record before us, we

now turn to Swift's qualified immunity defense. "[G]overnme n t officials performing discretionary functions generally are shielded fromliability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlowv. Fitzgerald , 457 U.S. 800, 818 (1982). At least to the extent that the qualified immunity defense turns upon a purely legal question, we-18-

review qualified immunity determinations de novo . See Mitchell v. Forsyth , 472 U.S. 511, 530 (1985); see also Suboh v. District Attorney's Office of Suffolk Dist. , 298 F.3d 81, 90 (1st Cir. 2002). Drawing on Supreme Court precedent and our own case law, we employ a three-part test when determining if a public official is entitled to qualified immunity: (1) whether plaintiff's allega t ions, if true, establish a constitutional violation; (2) whether that right was clearly established at the time of the allegedviolation; and(3) whether a similarly situated reasonable official would have understood that the challenged action violated the constitutional right at issue. Suboh , 298 F.3d at 90. See also Harlow v. Fitzgerald , 457 U.S. 800, 818-19 (1982). The "Supreme Court has instructed us to start . . . with the question of whether the facts as allegedmake out a violation of the First Amendment." Dirrane v. Brookline Police Dept. , 315 F.3d 65, 69 (1st Cir. 2002)(citing Saucier v. Katz , 533 U.S. 194, 201 (2001))(emphasis in original). Accordingly, we take each of these issues in turn.

1. Constitutional Violation B ec ause Mihos alleged that Swift violated his First Amendment rights, the first step in our qualified immunity analysis breaks dow n into a three-part inquiry itself: (1) whether the speech involves a matter of public concer n; (2) whether, when-19-

balanced against each other, the First Amendment interests of the plaint iff and the public outweigh the government's interest in functioning efficiently; and (3) whether the protected speech was

a substa ntial or motivating factor in the adverse action against the p laintiff. Mullin v. Town of Fairhaven , 284 F.3d 31, 37-3 8 (1st Cir. 2002) ( discussing the Supreme Court precedents that require each of these three inquiries: Connickv. Myers , 461 U.S. 138, 147-48 (1983)(matter of public concern requirement); Pickering

v. Boardof Educ. , 391 U.S. 563 (1968)(balancing requirement); Mt. Heal thyCity School Dist. Bd. Educ. v. Doyle , 429 U.S. 2 74, 28 7 (1977)(substantial factor requirement)). We address each of these items in sequence.

a. Matter of Public Concern For purposes of the motion to dismiss, Swift did not

con test that Mihos's vote on the toll increase was a matter o f public concern. Mihos I , 2002 WL 31455257, at *5. Like the district court, we pause briefly to address the issue on the merits. We are guided in this inquiry by the Supreme Court's holding in Connick : "Whether an employee's speech addresses a matter of public concern must be determined by the content, form andcontext of a given statement, as revealed by the whole record." 461 U.S. at 147-48. Mihos's votes against the proposed January 2002 toll increase and for a July 2002 toll increase conce rned a-20-

matter of significant import related to financing the largest construction project in the country. Further, the timing of the increases would affect every person and corp oratio n who used the Turnpike extension into Boston and the Boston Harbor tunnels.

"Where a public employee speaks out on a topic which is clearly a legitimate matter of inherent concern to the electorate, the court may eschew further inquiry into the employee's motives as revealedby the 'form and context' of the expression." O'Connor v. Steeves , 994 F.2d 905, 913-14 (1st Cir. 1993). There is no need for further analysis of the "public concern" issue. We conclude,

as did the district court, that Mihos's votes involved a matter of public concern, satisfying the first prong of the cons titutional violation analysis.

b. Balancing the Interests The next step in determining whether Swift vi olated Mihos's constitutional rights is to balance the interests of Mihos and the public in Mihos's speech (his vote) against the "interest of the State, as an employer, in promoting the efficie ncy o f the pu bli c services it performs through its employees. . . ." Pickering , 391 U.S. at 568. See also Mullin , 284 F.3d at 39. This process is commonly known as " Pickering balancing."

It is here, in the Pickering balancing, that Swift's motivations for firing Mihos loom large. In evaluating the defendant’s side of the scale, Pickering and its progeny instruct8 In making this observation, we express no opinion regarding

the preclusive effect, if any, that Levy II might have on remand in evaluating the legitimacy of these concerns or Swift’s ability to demonstrate them on the record.-21- courts to focus on t he g overnment’s “legitimate interests in preventing unnecessary disruptions and inefficiencies in carrying out its public service mission.” O’Connor , 994 F.2d at 915 (citing Pickering , 391 U.S. at 568-75). Accordingly, if Swift fired Mihos because she was concerned that the tangible results of his vote wouldnegatively af f ect the efficient functioning of government services and the financial standing of the Turnpike Authority, she wouldhave weighty interests on her side of the Pick ering scale. 8 On the other hand, if Swift fired Mihos in a retaliatory fit of pique because she disagreed with his vote and wished to punish him, she would have no legitimate governmental interests on her side of the scale. Indeed, Swift’s true motivation for firing Mihos for his vote is a core issue in this case.

Given the importance of Swift’s mo t ivation for firing Mihos for his vote, we must pause to address Swift’s argu ment in her brief that "the state of mind of the public official is not relevant to the question of qualified immunity," citing to Harlow

v. Fitzgerald , 457 U.S. 800, 816-17 (1982). This argument, along with citations to Harlow , is often made in First Amendment retaliation ca ses w hen defendants raise the qualified immunity defense. We are mindful that the Supreme Court in Harlow changed9 Alth ough in many areas of the law there are importa n t

distinctions between "intent" and "motive," w e us e them here interchangeably because the Supreme Court does so in its qualified immunity jurisprudence. See, e.g. , Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982) and Crawford-El v. Britton , 523 U.S. 574 (1998). -22- qualifiedimmunity doctrine to emphasize the objective, not subjective, nature of that inquiry. However, Harlowdoes not stand for the proposition that inquiries into defendants’ subjective motivation is inappropriate in the first step of the qualified immunity analysis in assessing whether an intent-based constitutional violation has been alleged. 9

Prior to Harlow , the third step of the qualifiedimmunity inquiry consisted of both obje ctive and subjective components: a defendant would not be entitled to qualified immunity " if he knew

or reasonably should have known that the action he took within his sphere of official responsibility wouldviolate the constitutional rights of the [plaintiff], or if h e t ook the action with the malicious intention to cause a deprivation of constitutional rights

or other injury. . . ." Woodv. Strickland , 420 U.S. 308, 322 (1975)(emphasis adde d). Under Wood , then, a plaintiff could usually avoid an adverse pre-trial qualified immunity ruling by merelyalleging (1) a constitutional violation (2) of clearly establishedlaw (3) by a public official who either acted maliciouslyor knew that his actions would deprive the plaintiff of his constitutional rights. This third step involved a n i nquiry into the public official’s subjective state of mind to assess-23-

whether the official acted with malice or was aware of the constitutional violation that would flow from his actions.

Seven years later, in Harlow , the Supreme Court revisited the relevance of the public official's subjective state of mind in t he qua lified immunity analysis. First, the Court noted that "[t]he resolution of immunity qu es tions inherently requires a balance between the evils inevitable in any available alternative." Harlow , 457 U.S. at 813. The Court also reiterated its concern that allowing in subst antial claims against public officials to proceedto trial exacted costs on society as a whole, "includ[ing] the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citiz ens from acceptance of public office." Harlow , 457 U.S. at 814. The Harlow Court noted that Woodv. Stric kland ' s "subjective element of the good -faith defense frequently has proved incompatible with o u r admonition . . . that insubstantial claims should not proceed to trial . . . [because] an official's subjective good faith has been consideredto be a question of fact that some courts have regarded as inherently requiring resolution by jury." Harlow , 457 U.S. at 816. Because of the incompatibility of the subjective inquiry with the need to dismiss insubstantial cases prior to trial, the Harlow Court found that "the dismiss al o f insubstantial lawsuits without trial--a factor presupposed in the balance of competing10 The Supreme Court recently explainedagain that "[t]he reason

whyret alia ting against individuals for their speech offends the Co nstitution is that it threatens to inhibit exercise of t h e protectedright. Retaliation is thus akin to an 'unconstitutional condition' demanded for the rece ipt of a government-provided benefit." Crawford-El v. Britton , 523 U.S. 57 4, 589 n.10 (1998)(citations omitted). -24- interests struck byour prior cases--requires an adjustment of the 'good faith' standard established by our decisions." Harlow , 457 U.S. at 814-15. This "adjustment of the 'good faith' standard" was

a reformulation of the third step of the qualifiedimmunity test to eliminate the good-faith , su bjective inquiry: "We therefore hold that government officials performing discretionary functions generallyare shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known ." Harlow , 457 U.S. at 818 (emphasis added).

Harlow , then, did no t a ffect the first step of the qualifiedimmunity analysis: whether plaintiff's allegations, if true, establish a constitutional violation. Certain constitutional violations, including First Amendment retaliation claims, include def endant's motivations as a foundational element of the tor t : Mihos's Fi rst Amendment retaliation claim "has no meaning absent the allegation of impermissible motivation." Acevedo-Garcia , 204 F.3dat 11. 10 While t he Supreme Court has removed from the qualifiedimmunity analysis inquiries into whether a defendant knew that he was violating plaintiff's cons titutional rights or acted11 Of course, if the constitutional tort itself does not include

a subjective element such as intent, it would be an error to import such an element into the qualified immunity assessment of whether the plaintiff's allegations, if true, establish a c onst itutional violation. -25- maliciouslyto that end, this jurisprudence has not suggestedthat the "objectification" of the qualified immuni t y inquiry somehow removes the intent element in the "subset of constitutional torts [in which] motivation or intent is an el ement of the cause of action." Id. Accord Johnson v. Ganim , 342 F.3d 105, 117 (2dCir. 2003)(“Tho ugh th e qualified immunity inquiry is generally an objective one, a defendant's subjective intent is indeed relevant in mot ive -based constitutional torts such as the one alleged by [plaintiff].”). 11

In Crawford-El v. Britton , 523 U.S. 574 (1998), the Supreme Court confirmed that although Harloweliminated inquiries into the defendant's subjective state of mind in the thirdstep of the qualified immunity analysis, it did not eliminate inquiries into the defendant's subjective state of mind in the first step ofthe qualified immunity analysis when plaintiff alleges an intentbasedconstitutional tort. While striking down a heig htened pleading requirement for motivation-based constitutional torts, the Crawford-El Court stated that "a judicial revision of the law to bar claims t hat d epend on proof of an official's motive" was not justified. Id. at 592. The Court went on to explain that "there is an important distinction between the 'bar e allegations of-26-

mali ce' th at would have provided the basis for rebutting a qualif ied immunity defense under Woodv. Strickland[the third step] and the allegations of intent that are essential elements of certain constitutional claims [the first step]." Id.

Emphasizing its concern with intrusive discovery into a public official's state of mind, the Court observed that under Wood , prior to Harlow , allegations of defendant's malicious intent to cause anyinjury at all to pl aintiff--not just constitutional deprivations--"wouldhave permitted an open-endedinquiry into [the official's] subjective motivation." Id. In contrast, the Court foundthat when assessing intent as an element of a constitutional violation, the motivation inquiry is not so broad as to allow disco very o n any potential theoretical basis for the cause of defendant's alleged animosity towards plaintiff: "rather, [the motivation inquiry] is more specific, such as an intent . . . to deter public comm ent on a specific issue of public importance." Id. The Court then obs erved that "existing law already prevents this more narrow elemen t of u nconstitutional motive [alleg eda s part of the underlying constitutional tort] from automatically carrying a plaintiff to trial." Id. This is t rue because a defendant might prevail on a qualified immunity defense in a case alleging an intent-based constitutional tort, without needto inquire as to her motives, if (1) the relevant law was not12 Fed. R. Civ. P. 7(a) allows a court to "order a reply to an

answer. . . ." Fed. R. Civ. P. 12(e) provides th at "[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired." -27- clearly established, (2) the plaintiff's speech did not relate to

a matter of public con cern, or (3) the defendant showed that she wouldh ave reache d the same decision even in the absence of the employee's protected speech. Id. at 592-93. In consequence, as notedby the Crawford-El Court, "unlike the subjective component of the immunity defense eliminated by Harlow , the improper inte nt element of various causes of action should not ordinarily preclude summary disposition of insubstantial claims." Id. at 593.

In Part IV of its opinion in Crawf ord-El , the Court recognizedthat even though a qualified immunity defense to an intent-based constitutional tort often can be resolved on grounds that avoid inquiries into the government official's motives, that will not always be so. Therefore, the Court foundit "appropriate to add a few words on some of the existing procedures available to federal trial judges in handling claims that involve examination of an official's state of mind." Id. at 597. "First, the court may order a reply to the defendant's . . . answer under Federal Rule of Civil Procedure 7(a), or grant the defendant's motion for a more definite statement under Rule 12(e)." 12 Id. at 598. "Second, . .

. the district court should resolv e [the ] threshold question [of-28-

qual ifie dimmunity] before permitting discovery . . . [by] d etermin[ing] whether, assuming the truth of the plain tiff' s allegations, the official's conduct violated clearly established law." Id. The Court then noted that "[i]f the plaintiff's action survives these initial hurdles and is otherwise viable, the plaintiff ordinarily will be entitled to some discovery. Rule 26 vests the trial judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery." Id. The Court describedthe ways in which the district court may limit the number, length, subj ect matter, time, place, and manner of depo si tions and interrogatories, as well as various discovery scenarios that would facilitate "the prompt and efficient resolution of the lawsuit. . . ." Id. at 599. Finally, the Court observedthat "[b]eyond these proced ures and others that we have not mentioned, summary judgment serves as the ultima te scr een to weedout trulyinsubstantial lawsuits prior to trial." Id. at 600.

With its careful attention to the ways i n w hich trial courts can control the examination of an official's state of mind pre-trial, the Supreme Court acknowledged in Crawford-El that the adoption of an objective standard for qualifiedimmunity in Harlow didnot foreclose all state of mind inquiries during the pre-trial consideration of qualified immunity when state of mind is an13 When plaintiffs allege an intent-based constitutional tort,

defendants asserting qualifiedimmunity often quote the passage in Crawford-El stati ng t hat "improper motive is irrelevant on the issue of qualified immunity. . . ." 523 U.S. at 589. In doing so, they take the passage out of context. In this portion of CrawfordEl , the Court is exp laining how Harlow removed the subjective elements from the third step of the qualified immunity inquiry so that "bare allegations" that the defendant maliciously or knowingly violatedplaintiff's constitutional rights would no longer suffice to overcome a qualified immunity defense. As Crawford-El explains in the same paragraph, its holding in Harlow "that 'bare allegations of malice' cannot overcome the qua li fied immunity defense did not implicate the elements of the plaintiff's initial burden of proving a constitutional violation," which is the first step in the qualified immunity inquiry. As we have explained, the rest of the Crawford-El opinion confirms this point. Indeed, in the footnote immediately preceding th e st atement that "evidence of improper motive is irrelevant on the issue of qu al ifiedimmunity," Crawford-El quotes an opinion of Justice Ginsburg, when she was a judge on the District of Columbia Circuit, and calls it a "correct understanding of Harlow . . . ."

Hadthe Court [in Harlow ] intended its formulation of the qualified immunity defense to foreclose all inquiry into the defendants' state of mind, the Court might have instructed the entry of judgment for defendants Harlow andButterfield on the constitutional claim wit hout f urther ado. In fact, the Court returned the case to the district court in an open-endedremand, a disposition hardly con s istent with a firm intent to delete the state of mind inquiry from every constitutional tort calculus. Crawford-El , 523 U.S. at 589 n.11 (quoting Martin v. D.C. Metro. Police Dep't , 812 F.2d 1425, 1432 (D.C. Cir. 1987)(alteration and emphasis in original)). -29- element of the const itutio nal tort. 13 Swift misreads Harlow in asserting that its reformulation of the qualifiedimmunity defense makes her motivation in firing Mihos irrelev ant to the qualified immuni tyanalysis. Therefore, if the qualified immunity defense-30-

profferedin her motion to dismiss does not identify proper grounds apart from motive for dismissing the case, and if the thrust of her motion to dismiss is simply to deny that she acted with th e constitutionally proscribed motive, she is unlikely to succeed.

Apar t fro m her misguided argument that motivation is always irrelevant to the qualified immunity inquiry, Swift only argues that no constitutional violation occu rred b ecause her termination of Mihos was motivated by her legitimate concerns for the public's interest rather than by a desire to pol iti cally retaliate against him. However, as we have previously explained,

on a motion to dismiss we must accept as true the allegations in Mihos's complaint about Swift's motivation. In the Pickering balan ce, the exercise to which we now return, these allegations produce a decisive tilt for Mihos.

We look first to Mihos’s side of the scale to assess “the interests served by[Mihos’s First Amendment activity] – including [his] inte rests in communicating, and the interests of the community in receiving, information on matters of public importance. . . .” O'Connor , 994 F.2d at 915. Public officials have a strong interest in voting their conscience on important issues without h a ving to suffer retaliatory recriminations from their superior s. S ee, e.g. , Connick v. Myers , 461 U.S. 138, 149 (1983)("[I]t is essential that publi c empl oyees be able to speak

o ut freely without fear of retaliatory dismissal."). The publi c-31-

also h as a substantial interest in members of public authorities being able to freely cast their votes in accordance with their best judgment, without fear of political interference and intimidation. See Butz v. Economou , 438 U.S. 478, 5 06 (1978)(noting "public interest in encouraging the vig orous exercise of official authority"). Together, Mihos's and the public 's i nterests weigh heavily on their side of the Pickeringbalance.

In turning to Swift's side of the balance, we find almost not hing beca use of the posture of this case. We have already explainedwhy the Levy II descript ions o f Swift's reasons for firing Mihos cannot trump the contrary allegations in Mihos's complaint. In consequence, the complaint alone sets forth the factual all egations that inform our review of this motion to dismiss. In his complaint, Mihos explains that Swift stated in the February 6, 2002 ter mination letters that she removed Mihos and Levy from office principally because their votes were "fiscally irres ponsible." However, Mihos's complaint then denies th i s charge, stating that the motion for which he voted "was fiscally soundand in the best interest of the A uthority." Furthermore, Mihos alleged that "he exercised his best judgment and c onclud ed that the January 2002 toll increase was not in the Authority's best interests and was not necessary as a matter of law." According to Mihos's complaint, "Swift was enraged that the Authority failed to14 Many of the qualified immunity cases use the phrases

“substantial factor” and “motivating factor” interchangeably to describe the causal relationship between the protected conduct and the adverse action taken against the plaintiff. We prefer to use the phrase “substantial factor” to avoid confusion with the earlier discussion of motivation, where motivation, rather than referring to causation, refers to whether Swift was concerned about legitimate government interests or impermissible retaliation. See Stella , 63 F.3dat 74-75 (explaining that "plaintiff must show . . -32- approve the January 2002 toll increase, which she supported." Further, Mihos alleged that the actions Swift took against him "were in direct retaliation for the votes" he took regarding the tolls. Finally, Mihos alleged that he was "removed from public office before the expira tion o f his term because of disagreement with the way [he] voted on matters of public concern" and that his termination was "political interference and i ntimidation." The district court, and this court on appea l, must accept Mihos's version of the dispute. Accord ing ly, when considering only the complaint, as we are bound to do, we finda void on Swift's side of the scale and the Pickeringscale tips decisively in favor of Mihos.

c. Substantial Factor

Having determined that the Pickering balance favors Mihos’s First Amendment rights, we now consider whet her hi s vote

was a substantial factor in Swift’s decision to fire him. See Mt. Healthy City School Dist. Bd. Educ. v. Doy le , 429 U. S. 274, 287 (1977). This “substantial factor” requirement is wholly distinct fromthe discussion of “motivation” in the previ ous section. 14. that his s peech was a substantial or motivating factor for the

adverse action taken against him . . . and the defendant must then prove . . . that the employer w ould have a cted in the same way towa rdthe plaintiff ‘even in the absence of the protected conduct.’"(citing Mt. Healthy , 429 U.S. at 287)(internal citations omitted)). -33- Here, the inquiryis whether Mihos’s termination was attributable to his exe rcise of his First Amendment rights or to some other

reason unrelated to his vote. See id. In short, the issue is the causal link between the protected conduct and the adverse employment action. For purposes of her motion to dismiss, Swift did not contest that Mihos's vote was the reason for her decision to remove him from the Turnpike Authority. Again, we pause briefly to address this issue on the merits.

Mihos and Levy voted against Swift's wishes regarding the toll increases on October 30, 2001. Seventeen days later, on November 16, Swift informed Mihos and Levy that she was removing themfrom office. Following Levy I and the termination hearing, Swift no tifie d Mihos and Levy of her decision to remove them for cause, stating that the principal cause for their removal was their "fiscally irresponsible" votes on October 30, 2001. The third member of the Tur npi ke Authority, who proposed the January 2002 increases and voted against the July 2002 tol l increases, never receivedany such communication. Hence, we agree with the district court that, on these facts, there is no serious dispute that-34-

Mihos’s vote on the timing of the toll increases was a substantial factor in Swift’s decision to remove him from office.

Having determined that (1) Mihos's vote involved a matter of public concern, (2) Mihos's and the public's interest are more weighty on the Pickering scale than Swift's, and (3) Mihos's vote

was a substantial factor in Swift's decision to fire him, we conclude that Mihos has alleged a violation of his First Amendment rights. 2. Clearly Established Right

We now turn to whether Mihos's First Amendment right in this case was clearly established at the time Swift decided to remove him from the Turnpike Authority.

The level of abstractness at which the "right" in question is articulated can of ten determine the outcome of this inquiry. In consequence, the Supreme Court has cautioned against applying general definitions of constitutional rig hts in the qualified immunity context. Anderson v. Creighton , 483 U.S. 635, 639 (1987). "The inquiry into the nature of a constitutional right for the purpose of ascertaining clea r establishment seeks to discover whether the right was reasonably well settled at the time of the challenged conduct. . . ." Martinez v. Colon , 54 F.3d 980, 988 (1st Cir. 1995). Additionally, the "inquiry into whether the right is clearly established 'must be undertaken in light of the-35-

specific context of the case, not as a broad general proposition.'" Suboh , 298 F.3d at 93.

With this guidance in mind, we articulate the First Amendment right at stake here as the right of a public official to vote on a matter of public concern properly before his agency without suffering r e taliation from the appointing authority for

reas ons unrelated to legitimate governmental interests. We have applieda similar formulation before: "[a]lthough we have found no

cases directly on point, probably beca use it is considered unassailable, we have no difficulty finding that the act of voting

on public issues by a member of a public agency or board comes within the freedom of speech guarantee of the first amendment. . .

. There can be no more definite expression of opinion than by voting on a controversial public issue." Miller v. Town of Hull , 878 F.2d 523, 532 (1st Cir. 1989). We reiterated six years later that this right was clearly established: "Voting by members of .

. . boards, commissions, and authorities comes within the heartland of First Amendment doctrine, and the status of public offici als' votes as constitutionally protected speech [is] established beyond peradventure of doubt. . . ." Stella v. Kelley , 63 F.3d 71, 75 (1st Cir. 1995).

N otwithstanding Stella and Miller , Swift urges tha t " a balancing test, by its indeterminate nature, mak es i t highly

u nlikelythat a public employer, in such circumstances, co uld b e15 Whether a reasonable person in Swift's position would have

known that her actions violated that clearly established right is a different question. We address that question in the next section. -36- heldto have violated a clearly established right." In support of this proposition, Swift refers to Frazier v. Bailey , quoted by the district court in Mihos II , holding that when a right is "subject to a balancing test, the right can rarely be considered 'clearly established,' at least in th e ab sence of closely corresponding factual and legal precedent." 957 F.2d 920, 931 (1st Cir. 1992). Here, though, Miller and Stella provide the "closely corresponding factual and legal precedents" that would have served to inform a public official that Mihos's First Amendment right was clearly established. 15

As Swift acknowled ges in her brief, both cases involve votes by public officials on matters of public concern and their subsequent removal based on those votes. Swift seeks to downplay their import by emphasizing that Miller and Stella neither applied the Pi ckerin g balancing test nor addressed "the limits of the 'right to vote' where the removing official states that the consequences of the decision rendered by the 'vote' will harm the public interest."

Once again, Swift is hampered by the procedural posture of this case. Her stated belief that the consequences of Mihos's vote will harm the public interest cannot trump Mihos's claim of a-37-

politicallyretaliatory motive. As we have explained at length, on

a motion to dismiss the factual allegations in the com pla int control. Hence, Swift's defense of her action cannot serve to distinguish Stella and Miller an y more tha n it can weigh on her side of the Pickering scale.

3. The Understanding of a Reasonable Official The third step in the qualified immunity analysis, which embodies the objective standard announced in Harlow , requires us to analyze "whether an objectiv ely reasonable officer in the defendant's position wouldhave understood [her] action to violate the plaint iff' s rights." Suboh , 298 F.3d 95. Given the facts allegedin the complaint, as described in Part I.A. supra , we have

no trouble finding that a reasonable official similarly situatedto Swift would have known that terminating Mihos for his vote violated his constitutional rights. Taking the allegations in the complaint

as true, Mihos exercised his best judgment as to the proper course of action, cast his vote, and was fired in retaliati on for that vote for reasons unrelated to legitimate governmental inte rests. No reasonable public official could have failed to realize that a member of a public instrumentality cannot be terminate d o n such grounds for voting on matters of public concern wi thin h is authority. Having found that (1) M ihos's allegations, if true, establish a violation of his First Amendment rights, (2) the right16 Of course, this ruling does not preclude Swift from asserting

qualified immunity in a subsequent motion for summary judgment or at trial. See Guzman-Rivera v. Rivera-Cruz 98 F.3d 664, 669 (1st Cir. 1996)(holding that the "defense of qualified immunity may be raise dand app ealed at multiple stages of the trial. . . ."). However, if the trial court denies the request for summary judgment because of a genuine issue as to any material fact, including motive, that ruling would not permit an interlocutory appeal. See, e.g. , Stella , 63 F.3d at 74 (holding that "a district court's pretrial rejection of a qualified immunity defense is not immediately appealable to the extent that it turns on either an issue of fact or an issue perceived by the trial court to be an issue of fact."). -38- was clearly established at the time Swif t fi red him, and (3) a

reason able public official would have known that the discharge constituted a constitutional violation, we find that Swift is not entitled to qualified immunity. 16 III. For the reasons explained above, we affirm the district court's denial of the moti on to dismiss in Mihos I , vacate the declaratoryjudgment and the denial of damages in Mihos II , and remand for proceedings consistent with this opinion.

SO ORDERED.