Commentary: Friday the 13th proved unlucky for Doña Ana County Sheriff Kiki Vigil, when the U.S. District dismissed in its entirety his “free speech” lawsuit against County Commissioners Billy Garrison and Wayne Hancock.
U.S. District Judge Kenneth Gonzales dismissed the suit on a Motion to Dismiss, which amounts to saying that even if he assumed the truth of everything the Sheriff alleged in his complaint, there was no viable lawsuit here.
A key issue was the Complaint's failure to allege a “clearly established” constitutional right.
Vigil had alleged that after he spoke up about various issues, the Commission retaliated by removing him from the dais at meetings and ordering an ethics investigation of him. He claimed that violated his constitutional right to free speech.
Unfortunately (as we wrote soon after this turkey of a lawsuit first gobbled its way into court) the defendants, as county officials, have qualified immunity, and the sheriff would have had to plead that a “well-established” constitutional right was violated. First Amendment free speech is well-established; but there's a significant question as to whether a county official can claim that right regarding exercise of speech related to his county duties. Neither the U.S. Supreme Court nor the 10th Circuit Court of Appeal has decided that issue. (New Mexico is in the 10th Circuit.) A very persuasive 3rd Circuit case had decided there was no such protection, while a 5th Circuit case had decided there was. Under those circumstances, no one could reasonably allege that the right was “well-established.”
Vigil had alleged four counts: (1) retaliation for exercise of free speech rights; (2) a request for an injunction against such retaliation; (3) punitive damages; and (4) a declaratory judgment under New Mexico law. The Court dismissed the first three, with prejudice (meaning they can't be re-filed) and declined to take federal jurisdiction over the state declaratory judgment issue.
As noted, on an early motion to dismiss, the court is required to accept as true “all well-pleaded allegations.” Even so, there was nothing here. For example, punitive damages are applied in connection with a substantive cause of action, but there's no independent count for punitive damages.
The Court also rejected Vigil's request to amend his complaint to add another claim and add County Manager Julia Brown and County Counsel Nelson Goodin as defendants.
The Court ruled that although Vigil had the right to amend, any amendment would be “futile” and could therefore be rejected immediately.
Vigil sought to add further claims of retaliation as well as a claim that by refusing to pay for the Sheriff's private lawyer in a case brought against him by the County, the County and the New Mexico Association of Counties had violated his rights; but the court pointed out that “as Defendants Garrett and Hancock correctly observe, it is well-established that a party to a civil proceeding does not have a constitutional right to legal counsel. Accordingly the individual Defendants have not violated a constitutional right to access the courts.” Thus, the court said, allowing Vigil to add such a claim would be “futile.”
Whatever the merits of some of the political issues involved, this lawsuit was an obvious waste of time when filed. Fortunately for us taxpayers, District Judge Gonzales acted promptly and decisively to toss it out.
Asked for comment, Commissioner Hancock said he was “immensely relieved,” adding: “It's just further evidence of how out of touch the Sheriff really is.”
Sheriff Vigil is traveling out of state (and let me reiterate congratulations on his son's graduation from law school) and couldn't be reached immediately, but I've left messages for him.
As I wrote in my December 6 column "The Sheriff's Lawsuit is the Wrong Answer to some Serious Questions", “Vigil's responsive lawsuit strikes me as nonsense.” Not only was the issue of a public officials right to constitutional free-speech protection up in the air, Vigil (who would have been laughed at by voters if he claimed getting removed from the dais had intimidated him from speaking up) alleged a pretty hypothetical sort of “damage.”
Note: the December 6 column was my initial discussion of this lawsuit, and on January 16 (in conjunction with a January 17 column) I posted “"County Sheriff an Underdog in his Lawsuit against County Commissioners" predicting the 12(b)(6) dismissal.