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Andrews v. DEP
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1998 ME 198
Docket:	Ken-97-657
Argued:	May 5, 1998
Decided:	August 3, 1998	

Concurring:	ROBERTS, J. and DANA, J.
Dissenting:	ROBERTS, J. and DANA, J.

	[¶1]  The Department of Environmental Protection and several of its
employees in their personal capacities{1} appeal from the denial in part by the
Superior Court (Kennebec County, Alexander J.) of their motion for a
summary judgment.  The defendants contend that the court erred in
determining that disputed issues of fact precluded the grant of a summary
judgment.  Andrews asserts that the defendants' interlocutory appeal must
be dismissed because it violates our final judgment rule.  We deny the
motion to dismiss and remand for the entry of a summary judgment in part.
	[¶2]  Jon Andrews initiated this action against the DEP and against
several of its employees in their personal capacities, alleging, inter alia, that
they had violated his federal and state free speech rights by pursuing a
course of adverse employment actions against him in retaliation for a letter
he wrote to the Maine Times.  Andrews sought declaratory, injunctive, and
monetary relief pursuant to 42 U.S.C. § 1983 (1994 & Supp. 1998) and
pursuant to article I, section 4 of the Maine Constitution.  The defendants
moved for a summary judgment, arguing, inter alia, that they are entitled to
qualified and sovereign immunity from his suit, and that a violation of the
free speech clause of the Maine Constitution cannot support a private cause
of action.  Andrews opposed the motion, contesting sixty-four of the 117
assertions in the defendants' Statement of Undisputed Facts.  The court
denied the motion as to Andrews's constitutional claims{2} on the basis that
factual issues exist as to whether the defendants' employment actions
towards Andrews were taken to retaliate for his speech.  The defendants
	[¶3]  Andrews urges us to dismiss this appeal, arguing that it is
impermissibly interlocutory pursuant to the decision of the United States
Supreme Court in Johnson v. Jones, 515 U.S. 304 (1995).  In Johnson, the
Supreme Court limited federal courts' interlocutory review of summary
judgment denials in qualified immunity cases.  See id. at 313.  Previously,
the Court had held that an interlocutory decision denying a claim of qualified
immunity may be immediately appealed.  See Mitchell v. Forsyth, 472 U.S.
511, 525-27 (1985).  In Johnson, however, the Court prohibited an
immediate review of the denial of a summary judgment resulting from a
conclusion that the record raises genuine issues of material facts concerning
the defendants' conduct.  See 515 U.S. at 313.  The defendants
acknowledge the holding of Johnson but assert that we nevertheless may
afford immediate review because they are willing to stipulate to Andrews's
version of factual events for purposes of this appeal.
	[¶4]  Although our final judgment rule generally bars immediate review
of the denial of a summary judgment, we have determined that "the denial
of a motion for a summary judgment based on a claim of immunity is
immediately reviewable pursuant to" the death knell exception to the final
judgment rule.  J.R.M., Inc. v. City of Portland, 669 A.2d 159, 160 & n.1 (Me.
1995).  The death knell exception "permits an appeal from an interlocutory
order where substantial rights of a party will be irreparably lost if review is
delayed until final judgment."  Cook v. Cook, 574 A.2d 1353, 1354 (Me.
1990) (citations and quotations omitted).  The death knell exception applies
to the denial of a summary judgment based on qualified immunity because
qualified immunity confers more than immunity from damages; it is
intended to provide immunity from suit, since "'even such pretrial matters
as discovery . . . can be peculiarly disruptive of efficient government.'" 
J.R.M., 669 A.2d at 160 (quoting Mitchell v. Forsyth, 472 U.S. at 526).
	[¶5]  In this case, the Superior Court did not reach the issue of
qualified immunity because it determined that the parties' factual disputes
precluded a summary judgment.  We must decide whether the defendants'
willingness to stipulate to Andrews's version of factual events for purposes of
this appeal permits us to review the denial of a summary judgment in this
case pursuant to the death knell exception.  The Supreme Court explained
its Johnson holding in its decision in Behrens v. Pelletier:
Johnson held, simply, that determinations of evidentiary
sufficiency at summary judgment are not immediately appealable
merely because they happen to arise in a qualified-immunity
case; if what is at issue in the sufficiency determination is
nothing more than whether the evidence could support a finding
that particular conduct occurred, the question decided is not
truly 'separable' from the plaintiff's claim, and hence there is no
'final decision' . . . summary-judgment determinations are
appealable when they resolve a dispute concerning an 'abstract
issu[e] of law' relating to qualified immunity -- typically, the issue
whether the federal right allegedly infringed was 'clearly
516 U.S. 299, 313 (1996) (citations omitted).  The First Circuit has
interpreted Johnson and Behrens to permit a defendant who has been
denied a summary judgment due to the existence of an issue of fact to
"concede[] arguendo the facts found to be disputed . . . [and] tak[e] an
interlocutory appeal on a legal claim that the defendant is nevertheless
entitled to qualified immunity on facts not controverted."  Berthiaume v.
Caron, 142 F.3d 12, 15 (1st Cir. 1998); accord Vance v. Nunnery, 137 F.3d
270, 273 & n.2 (5th Cir. 1998); Jemmott v. Coughlin, 85 F.3d 61, 66 (2d
Cir. 1996).  Although we are not bound by Johnson, Behrens, and their
progeny, see Johnson v. Fankell, 117 S.Ct. 1800, 1803-04 (1997) (rejecting
contention that states "must follow the federal construction of a 'final
decision'"), we find their analyses persuasive.  Because the defendants would
lose their immunity from suit if we were to grant Andrews's motion to
dismiss this appeal, we will examine whether, if Andrews were to persuade
a trier of fact to accept his version of factual events, the defendants would be
entitled to immunity from his claims.
	[¶6]  The DEP employs Jon Andrews as an Oil and Hazardous Materials
Specialist in its Division of Response Services.  Andrews's responsibilities
include "field work responding to and directing the clean-up of oil and
hazardous materials in order to protect the environment and public health."  
In August of 1992, Andrews met with Mike and Amy Knowlton, alleged
environmental offenders, and State Representative Paul Jacques. 
Representative Jacques was then the co-Chair of the Legislature's Joint
Energy and Natural Resources Committee, the committee with oversight
over the DEP.  Representative Jacques complained about Andrews's conduct
during this meeting with the Knowltons to Andrews's DEP supervisors.  The
DEP disciplined Andrews in the form of an oral reprimand.{3} 
	[¶7]  In the June 25, 1993 edition of the Maine Times, an article
entitled "When the system fails:  How do you protect small business from
the bureaucracy?" appeared.  Andrews's August 1992 meeting with the
Knowltons was a subject of this article.  The article began:  "[a]fter Mike and
Amy Knowlton had a run-in with a Department of Environmental Protection
official, the Legislature pushed through new laws to solve what the
department claims was a personnel problem.  Legislators saw the issue as
calling a halt to bureaucratic arrogance."  A related article, "Making costly
change:  Mike and Amy Knowlton were seen as victims of a regulatory
system run amok," stated in part:
when Mike and Amy Knowlton, who own a gas station and
convenience store in the tiny town of Freedom, ran into trouble
with the Department of Environmental Protection (DEP), they
went to an important legislator, who in turn ran into a particular
regulator's rude behavior.

. . . .

'I told them to look at the data,' says Alan Prysunka, who is
responsible for the oil and hazardous materials cleanup program
at the DEP.  'My field staff deal with 300 to 400 cases a year.  I
have one staff person who acted improperly.  But are you going
to change an entire program because of a personnel problem?'

'Yes,' responds Rep. Paul Jacques (D-Waterville), an eight-term
lawmaker and House chairman of the energy committee. 
Jacques says it isn't just because he is a friend of the Knowltons. 
The reason is because Prysunka's errant staffer is really part of a
pervasive 'attitude' problem at DEP that lawmakers feel helpless
to change.
	[¶8]  In response to these articles, Andrews wrote a letter to the
Maine Times that was published in the July 9, 1993 edition.  His letter
stated in part:
Randy Wilson's article, 'When the System Fails' (MT, 6/25/93),
regarding a gasoline station/oil terminal owner and his
experiences with the Department of Environmental Protection
(DEP), made light of several issues that are important to a
thorough understanding of that situation.  

I hope that most readers were able to determine from the
article that Mr. Knowlton, an experienced oil industry
professional, is a repeat environmental offender.  His violations
are very directly related to the petroleum contamination that
currently underlies a position of the village of Freedom.  . . .
Knowlton's dissatisfaction with the DEP stems from a
determination by DEP staff, acting in accordance with State law,
that Knowlton, Inc., had failed to meet certain minimum
operation standards that were specifically designed to prevent
the sort of contamination that resulted at this property. 
Therefore, Knowlton, Inc., should bear the financial
responsibility for clean-up, Mr. Knowlton (and the Maine Oil
Dealer's Association, and Representative Jacques) would prefer
that remediation be conducted at public expense.

Perhaps some future Maine Times article will examine the
effectiveness of State environmental policy at preventing the
sort of pollution caused by Knowlton, Inc., or will investigate
whether the current trend toward increasing use of public
monies for clean-up of preventable industrial errors is really in
the best interest of the Maine public. 
This letter and the Maine Times articles to which it responded were posted
on a DEP workplace bulletin board. 
	[¶9]  Andrews maintains that the DEP has taken adverse employment
actions against him to retaliate for this letter, including the denial of
numerous requests to attend training programs and "a campaign of
harassment and retaliation" by his supervisors in the form of "negative
annual performance evaluations and unwarranted formal reprimands."  For
purposes of this appeal, the defendants have stipulated that the alleged
adverse employment actions were taken to retaliate for Andrews's letter.

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