vs. APPELLEE'S MOTION FOR REHEARING IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI THE CITY CI1Y OF MERIDIAN, MISSISSIPPI APPELLANT

Transcription

1 E-Filed Document Jan :24: CC COA Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI THE CITY CI1Y OF MERIDIAN, MISSISSIPPI vs. VS. ADAM MEADORS APPELLANT NO CC COA APPELLEE APPELLEE'S MOTION FOR REHEARING DAVID H. LINDER ATTORNEY FOR APPELLEE MS BAR NO Driftwood Drive Meridian, MS Phone: (601)

2 TABLE OF CONTENTS Page Number: 1. TABLE OF CONTENTS...! 2. TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES ISSUE ISSUE ISSUE CERTIFICATE OF SERVICE

3 TABLE OF CASES, STATUTES, AND AUTHORITIES CITED: CASES: Page Number: Beasley v. City of Gulfport, 724 So. 2d 883 (Miss. 1998)... 7 Eidt v. City of Natchez, 382 So. 2d 1093 (Miss. 1980) Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011) 9, 10 Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) Hustler Magazine and Larry Flynt v. Falwell, 485 U. S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988) Schad v. Borough of Mount Ephraim, 452 U. S. 61, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981) STATUTES: Page Number: Miss. Code Ann (2009, as amended)... 5 Miss. Code Ann (1984, as amended)... -4, 5, 6, 8 MERIDIAN MUNICIPAL CODE: MERIDIAN CIVIL SERVICE CODE:

4 Comes now the Appellee, Adam Meadors, by and through his attorney, and files Appellee' s Motion For Rehearing, and in support thereof would respectfully show unto the Court as follows: Issue 1: This Court has misapprehended controlling law by finding that Mayor Bland had legal authority to verbally authorize Chief Lee to terminate Meadors. 1. In October 2013, Meadors was at his home on his meal break from work as a police officer (T 21-22, 35, 63-64). He was using the internet with his personal telephone (T 21). He shared a picture (Ex. B) from a Facebook page called "Police Officers", which posted it onto his own personal Facebook page (T 21). The picture is of 2 chimpanzees, with a caption which reads "EARLIER TODAY THE MAYO RAND THE CHIEF OF POLICE HAD A MEETING". Meadors' Facebook comment to the picture states "Something will probably be said, but I couldn't resist." Meadors testified that he posted the picture because he thought it was funny (T 22, 24, 31, 66 ). He does not consider the picture racist in any way (T 22, 34, 44, 70-72). He removed the picture from his Facebook page on his own volition after 4 or 5 minutes simply because he knew it would "ruffle some feathers" (T 23, 29). 2. On October 14, 2013, then Meridian Police Chief James Lee served Meadors a letter advising him that Lee intended to terminate him, and immediately placed him on administrative leave (Ex. D). According to the letter, the accusation against Meadors is that "Officers (sic) Adam Meadors texted (sic) two pictures of primates and stated it was Mayor Percy Bland and Chief of Police James Lee in a meeting." The letter (Ex. D) is on Meridian Police Department letterhead, is signed on the first page by Chief Lee, and is signed on the third page by Lee and Curt Goldacker, then Chief Administrative Officer for the City of Meridian. The third page of the letter has a signature line for the approval of Mayor Bland, which is conspicuously blank. It reads "Approved: Percy Bland Mayor, City of Meridian", and the line for Mayor Bland's signature remains blank to this day (Ex. D) (T 19-20). 3

5 3. On October 15, 2013, Meadors hand delivered a letter to Chief Lee in response to Lee's October 14 letter (R 45). On October 16, 2013, Lee wrote a letter to Meadors officially terminating him (Ex. E). Exhibit E is again on Meridian Police Department letterhead, but is signed only by Lee. Lee states in the letter that it is "From: Chief James E. Lee". Mayor Eland's signature yet again is nowhere to be found. The document does not state that Meadors' termination is by Mayor Bland or approved in anyway by Bland. It does state that the termination is by Lee, as it provides that it is "From: Chief James E. Lee". 4. Mayor Bland was called to testify by the City. He contends that he gave Lee only verbal authority to terminate Meadors (T 94), and admits that he did not sign Exhibits D and E (T 89-90, 95). Eland's testimony is the first and only indication in the entire record whereby he claims to support the termination and to have given Lee verbal authority to fire Meadors. He further concedes that he could have signed the documents, but didn't do so (T 94-95). After lengthy questioning on cross examination, Mayor Bland finally confesses that on March 28, 2014, he was interviewed by Candace Barnette, a reporter with WTOK- 1V, and made a public statement, broadcast over the news, admitting that police officer "termination has to go through my desk for my signature." (T 88, 91-92) 5. Both the initial termination notice letter (Ex. D) and the final termination (Ex. E) came from then Police Chief Lee, not from Mayor Bland. A pivotal term in our analysis is "appointing power" or "appointing authority", and who holds this position. These terms appear to be used interchangeably in the Mississippi Code, the Meridian Civil Service Code (portions of which are reproduced in the record), and Mississippi case law. Termination of officer Meadors can only be effected by the appointing authority. Let us examine who is designated the appointing authority by law, and the significance of this title. The first paragraph of Miss. Code Ann (1984, as amended) provides: Removal, suspension, demotion, and discharge No person in the classified civil service who shall have been permanently appointed or inducted into civil service under the provisions of Sections through , except for such persons as may be employed to fill a vacancy caused by the absence of a fireman or policeman 4

6 while in service as a member of the armed forces of the United States, shall be removed, suspended, demoted or discharged, or any combination thereof, except for cause, and only upon the written accusation of the appointing power or any citizen or taxpayer, a written statement of which accusation, in general terms, shall be served upon the accused, and a duplicate filed with the commission. The chiefs of the fire and/ or police department may suspend a member pending the confirmation of the suspension by the regular appointing power, which shall be within three (3) days. The Meridian Civil Service Code 1.02 (R 27) also defines appointing authority: "APPOINTING AUTHORITY" means the Mayor or properly authorized designee(s) who, by the Law, has the power of appointment to and removal from positions. ( emphasis added) 6. Civil Service Code (R 28) in relevant part states "The Appointing Authority shall, pursuant to Section 2.04, administer and maintain good order and discipline for the members and shall impose appropriate discipline for instances of misconduct." Consistent with 10.01, Civil Service Code (R 31) similarly states that Disciplinary action taken against any member shall not become effective until the Appointing Authority shall have first served upon such member a written notice of the disciplinary action which shall contain one or more reasons or grounds therefor, together with a clear statement of facts upon which the action is based, which is sufficient for the member to know what to defend. "By the Law", as referenced in 1.02 above, the only person with authority to remove or terminate employees is the Mayor. No law or ordinance gives anyone else such authority. For the Mayor to delegate this task to someone else "by the Law" contemplates that some "Law" must be passed in order to give him such authority. Miss. Code Ann (4) (2009, as amended) provides as follows: Directors of departments shall appoint subordinate officers and employees within their respective departments and may, with approval of the mayor, remove such officers and employees subject to the provisions of any ordinance establishing a civil service system where that system is effective in the municipality, or other general law; provided, however, that the council may provide by ordinance for the appointment and removal of specific boards or commissions by the mayor. (Emphasis added) 7. Mayor Bland, the appointing authority, testified that he verbally authorized Chief Lee to terminate Meadors. However, Bland personally admitted (and correctly so) that only he is the appointing authority, and only he has the authority to fire police officers. Even if 5

7 Bland gave Lee purported verbal authority, Lee had no legal authority. The Meridian Municipal Code, the Meridian Civil Service Code, and the Mississippi Code Annotated are devoid of any ordinance or other lawful authority giving Mayor Bland the ability to verbally designate anyone to act in his stead to fire officers. Conversely, the Meridian Municipal Code closes the door and drives home another dagger to this assertion by supplying it's own definition of appointing authority: Sec Definitions and interpretation. In the construction of this Code, and of all ordinances, the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the city council: Appointing authority. In all cases the "appointing authority" shall be deemed to be the manor with the exception of the clerk of the council and the city auditor who shal be appointed by the council. ( emphasis added) Meridian Municipal Code 1-2, standing alone, is sufficient to refute the assertion that anyone other than Mayor Bland could lawfully terminate Meadors. The Meridian Municipal Code vests employee termination power exclusively to the Mayor. 8. The Supreme Court of Mississippi was faced with the "appointing authority'' issue in Eidt v. City of Natchez, 382 So. 2d 1093 (Miss. 1980), and reaffirms that nobody other than the mayor has authority to fire an employee protected by civil service. Eidt was a fireman accused of striking another fireman while on duty. As in our case, Eidt's fire department chief, rather than the appointing authority (i.e. the mayor), discharged him by written termination notice. The Court held that precluded Eidt's chief from terminating him, because the chief is not the appointing power. Eidt was therefore reinstated to his position with back pay. The Court reasoned that "Section precludes any power or right of the Chief of the Fire Department to terminate an employee protected by civil service." Eidt, 382 So. 2d 1093, Only the mayor has this authority. Former Police Chief Lee had no more power to terminate Meadors than Eidt's chief had to fire him. See also. Eidt, as discussed above, reasons that only the mayor of a municipality, not a department head, is the appointing authority who may terminate an employee. 6

8 9. In Beasley v. City of Gulfport, 724 So. 2d 883 (Miss. 1998), Beasley was terminated by a letter dated July 25, 1995 signed by the Gulfport personnel director. This letter was not signed by the mayor, but the mayor signed a copy of the termination letter two days later on July 27, This Court, applying Eidt, correctly explained that Beasley's termination was proper, since the Mayor of Gulfport signed the copy. The Beasley Court did not change the ruling of Eidt; it merely distinguished Eidt by reaffirming that the Eidt termination was improper because the mayor didn't sign the letter. In contrast, the Beasley termination was proper because the mayor signed a copy of the termination letter. 10. This Court, in the Meadors decision, has effectively overruled and misapplied the established Mississippi Supreme Court decisions of Eidt and Beasley, and overlooked and failed to apply the pertinent provisions of the Meridian Municipal Code and the Meridian Civil Service Code. 7

9 Issue 2: This Court misapprehended the facts in finding that Meadors' termination was made in good faith for cause, and supported by substantial evidence. 11. According to the second paragraph of Miss. Code Ann (1984, as amended), the notice of intent to terminate employment "shall state the reasons for termination". The accusation against Meadors in Exhibit Dis that "Officers (sic) Adam Meadors texted (sic) two pictures of primates and stated it was Mayor Percy Bland and Chief of Police James Lee in a meeting." This allegation is not supported by any proof in the record at all, not even by a scintilla of evidence. The undisputed proof by both parties at trial is that Meadors posted a picture onto his own Facebook page. He did not text anything to anyone, nor did he state "it was Mayor Percy Bland and Chief of Police James Lee in a meeting." No names on the picture are stated on the picture, nor any cities. 12. Exhibit B does not disclose the identity of the 2 chimps or what city they are from (T 22, 30-31, 44, 60). No one was harmed on account of the picture being posted (T 23). Meridian Mayor Bland did not see or even learn of the picture until someone brought him a copy of it (T 95). Bland admitted that "a person would have to assume" it was him to think the picture was referring to him (T 97). 13. Without support from the record, this Court wrongfully characterizes the picture as "racist". It is not even supported by the record that Mayor Bland and Police Chief Lee are of a different race from Meadors. There is not one scintilla of evidence in the record to support the assertion that the picture is in any way racist, nor was it so intended by Meadors. He did not consider the picture racist in any way (T 22, 34, 44, 70-72). 8

10 Issue 3= The Court misapplied the law by erroneously finding that Meadors' speech in not a matter of public concern, and therefore void of constitutional protection. 14. Erroneously, and in contravention of established United States Supreme Court authority, the Court ruled that Meadors' Facebook posting is not entitled to First Amendment protection because it is not a "matter of public concern". The Court has seemingly ruled that satire, entertainment, political criticism and literary expression are not entitled to First Amendment protection, if the author or producer did the work because he or she thought it was funny. This is a dangerous precedent, and flies squarely against the protections afforded by the First Amendment. We are fortunate to live in the United States of America, and protected by the First Amendment. 15. Let's examine the flawed premise that Meadors' Facebook post is not a matter of public concern, when it unequivocally is a matter of public concern. In Snyder v. Phelps, 562 U.S. 443, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011), the almost universally publically hated Westboro Baptist Church was picketing a military funeral, displaying signs stating: "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and "God Hates You." Snyder, 131 S. The United States Supreme Court held that these statements are matters of public concern rather than private matters, and entitled to First Amendment protection, rejecting Snyder's claim that the speech was a matter of private concern in connection with his son's funeral. As the United States Supreme Court explained: Speech deals with matters of public concern when it can "be fairly considered as relating to any matter of political, social, or other concern to the community," Connick, supra, at 146, 103 S. Ct. 1684, 75 L. Ed. 2d 708, or when it "is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public," San Diego, supra, at 83-84, 125 S. Ct. 521, 160 L. Ed. 2d 410. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, , 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975); Time, Inc. v. Hill, 385 U.S. 374, , 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967). The arguably "inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern." Rankin v. McPherson, 483 U.S. 378, 387, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987). 9

11 Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual's credit report "concerns no public issue." 472 U.S., at 762,105 S. Ct. 2939, 86 L. Ed. 2d 593. The content of the report, we explained, "was speech solely in the individual interest of the speaker and its specific business audience." Ibid. That was confirmed by the fact that the particular report was sent to only five subscribers to the reporting service, who were bound not to disseminate it further. Ibid. To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos "did nothing to inform the public about any aspect of the [employing agency's] functioning or operation." 543 U.S., at 84, 125 S. Ct. 521, 160 L. Ed. 2d 410. Deciding whether speech is of public or private concern requires us to examine the " 'content, form, and context' "of that speech, " 'as revealed by the whole record.' Dun & Bradstreet, supra, at 761, 105 S. Ct. 2939, 86 L. Ed. 2d 593 (quoting Connick, supra, at , 103 S. Ct. 1684, 75 L. Ed. 2d 708). As in other First Amendment cases, the court is obligated "to 'make an independent examination of the whole record' in order to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.' Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485,499,104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984) (quoting New York Times, supra, at , 84 S. Ct. 710, 11 L. Ed. 2d 686). In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said. The "content" ofwestboro's signs plainly relates to broad issues of interest to society at large, rather than matters of "purely private concern." Dun & Bradstreet, supra, at 759, 105 S. Ct. 2939, 86 L. Ed. 2d 593. The placards read "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Fag Troops," "Semper Fi Fags," "God Hates Fags," "Maryland Taliban," "Fags Doom Nations," "Not Blessed Just Cursed," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "You're Going to Hell," and "God Hates You." App While these messages may fall short of refined social or political commentary, the issues they highlight--the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy--are matters of public import. The signs certainly convey Westboro's position on those issues, in a manner designed, unlike the private speech in Dun & Bradstreet, to reach as broad a public audience as possible. And even if a few of the signs--such as "You 're Going to Hell" and "God Hates You" --were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues. Snyder, 131 S. Ct

12 16. Depictions or speech with "serious religious, political, scientific educational, journalistic, historical, or artistic value" are all protected under the First Amendment. Millerv. California, 413 U. S.15, 24, 93 S. Ct. 2607, 37 L. Ed. 2d419 (1973). Entertainment such as video games is Constitutionally protected public matter, and thereby entitled to protection. Entertainment and political messages must be so protected. As explained by the United States Supreme Court in Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). California correctly acknowledges that video games qualify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. "Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine." Winters v. New York, 333 U.S. 507, 510, 68 S. Ct. 665, 92 L. Ed. 840 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas--and even social messages--through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, "esthetic and moral judgments about art and literature... are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority." United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). And whatever the challenges of applying the Constitution to ever-advancing technology, "the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary" when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S. Ct. 777, 96 L. Ed (1952). The most basic of those principles is this: "[A]s a general matter,... government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002) (internal quotation marks omitted). Brown v. Entm't Merchs. Ass'n, 180 L. Ed. 2d 708 at (2011). 17. Even live entertainment, such as nude dancing, is likened to political and ideological speech, and afforded First Amendment protection. See Schad v. Borough of Mount Ephraim, 452 U. S. 61, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981). 18. Meadors' Facebook post was for humor. It is in the nature of satire or a political cartoon, most of which are done for entertainment. Humor is a substantial part of 11

13 entertainment, and has been since time immemorial. If Meadors wishes to compare a hypothetical mayor and police chief to a couple of chimpanzees, he has a perfect First Amendment protected right to do so. Political cartoonists and satirists must be and are Constitutionally protected. As explained by the United Stated Supreme Court in Hustler Magazine and Larry Flynt v. Falwell, 485 U. S. 46, 53-55, 108 S. Ct. 876, 881, 99 L. Ed. 2d 41 (1988): Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject. Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect." Webster's New Unabridged Twentieth Century Dictionary of the English Language 275 (2d ed. 1979). The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events -- an exploration often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: "The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters." Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill, 56, 57 (Nov. 1962). Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast, probably-tbe greatest American cartoonist to date, who was associated for many years during the post-civil War era with Harper's Weekly. In the pages of that publication Nast conducted a graphic vendetta against William M. "Boss" Tweed and his corrupt associates in New York City's "Tweed Ring." It has been described by one historian of the subject as "a sustained attack which in its passion and effectiveness stands alone in the history of American graphic art." M. Keller, The Art and Politics of Thomas Nast 177 (1968). Another writer explains that the success of the Nast cartoon was achieved "because of the emotional impact of its presentation. It continuously goes beyond the bounds of good taste and conventional manners." C. Press, The Political Cartoon 251 (1981). Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's juttingjaw and cigarette holder have been memorialized by political cartoons with an effect that could not 12

14 have been obtained by the photographer or the portrait artist. From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them. If comparing the venerable George Washington to an ass is constitutionally protected speech, then Meadors' Facebook picture comparing a hypothetical and generic mayor and police chief to chimpanzees must also be protected. It is a dangerous misapplication of the "public concern" issue to conclude otherwise, and a very clear error and misapplication of the protections afforded by the First Amendment which should be corrected by the Court of Appeals of the State of Mississippi at this stage of our proceedings. WHEREFORE, PREMISES CONSIDERED, it is respectfully requested that this Court reconsider its decision, reverse and render in favor of Meadors, and affirm the decision of the Circuit Court of Lauderdale County. 13

15 CERTIFICATE OF SERVICE I, the undersigned attorney, do hereby certify that I have this date served via MEC and hand delivered a true, correct and complete copy of the above and foregoing Brief of Appellee to the following: Hon. William W. Simmons and Hon. Matthew R. Watson Attorneys for Appellant 1724-A 23rd Avenue Meridian, MS THIS, the 18th day of January, /s/ David H. Linder DAVID H. LINDER, Attorney for Appellee, Adam Meadors DAVID H. LINDER, Attorney for Appellant MS STATE BAR NO Driftwood Dr. Meridian, MS Phone: (601) dlinderattorney@outlook.com 14