Sarah GABLE, Plaintiff-Appellee, v. Ronald G. LEWIS; Kenneth T. Woehrmyer, Defendants-Appellants, Roger Hannay, et al., Defendants, 201 F.3d 769

MERRITT, J., delivered the opinion of the court, in which COHN, D. J., joined. NELSON, J. (pp. 772-74), delivered a separate dissenting opinion. OPINION MERRITT, Circuit Judge. In this § 1983 case, plaintiff Sara Gable, who operates an automobile towing company in Lebanon, Ohio, claimed that the defendant, Ronald Lewis, an official of the Ohio Highway Patrol, retaliated against her by removing her from the patrol’s towing referral list because she had filed with the state agency an official written complaint of sex discrimination in the allocation of the patrol’s automobile towing business.

Her retaliation claim was brought as a violation of the petition clause of the First Amendment which bars government from “abridging ... the right of the people ... to petition the government for a redress of grievances.” After a three-day trial, the jury found that the defendant was guilty of violating the petition clause when he removed her from the towing list in retaliation for filing her discrimination complaint. The jury awarded damages of $55,000. On appeal, we take as true these facts as found by the jury.

The defendant presents two issues of law on appeal: First, he argues that the petition clause is inapplicable to her grievance filed with the patrol because “only speech concerning matters of ‘public concern’ is protected from retaliatory conduct” by the petition clause and that plaintiffs discrimination complaint is personal to her and is not such a matter of “public concern,” as required by Connick v. Myers, 461 U.S. 138, 145-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

Second, he argues that the defendant is entitled to qualified immunity because the “constitutional right [asserted] must be clearly established in a particularized sense” under Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), in order for a state official to be held personally liable in damages for a constitutional tort and that the constitutional right claimed in this case under the petition clause was not “clearly established” at the time of the retaliatory conduct.

Although historically the right of “petition” was confined to seeking legislative or judicial relief, see Higginson, A Short History of the Right to Petition Government for the Redress of Grievances, 96 Yale L.J. 142 (1986), and although some scholars insist that the scope of the petition clause should remain so limited through judicial

interpretation, Strauss, Public Employees’ Freedom of Association, 61 FoRdham L. Rey. 473, 486 (1992), the Supreme Court has held to the contrary. In California Transport v.

Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), the Court, after explaining the philosophy underlying the petition clause, said that the “same philosophy governs the approach of citizens or groups of them to administrative agencies,” and concluded that “the right to petition extends to all departments of the Government.” In extending the right of petition to administrative agencies, the Court stated “that it would be destructive of rights of association and of petition to hold that groups with common interests may not ... use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests viz-a-viz their competitors.” Id. at 510-11, 92 S.Ct. 609.

The petition clause is analytically distinct from, although related to, the free speech clause; and the California Transport case clearly establishes that the submission of complaints and criticisms to nonlegislative and nonjudicial public agencies like a police department constitutes petitioning activity protected by the petition clause. The question before us is whether we should read into the petition clause the “public concern” test established in Connick v. Myers, 461 U.S. 138, 145-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), a case brought by a public employee under the speech clause of the First Amendment.

In Connick the Court said that a governmental agency may discipline or impose punishment against a public employee for speech if the sanctioned speech is a matter of “private” concern rather than “public concern.” The Court made it clear that the reason for this distinction between “private” and “public” matters is to enable governmental agencies, like private employers, to maintain order, discipline and civility in the workplace and to allow supervisory officials to discipline employees for offensive, insulting, or disruptive speech unrelated to expressions of opinion about policy matters.

On the other hand, the Court sought to retain the right of all citizens, including public employees, to comment and express their views on matters of governmental policy. In Connick, the Court did not apply the “public concern” test to the petition clause, nor has it decided since Connick a case raising that point. Nor has the Court applied the test to citizens who are not governmental employees. We believe that the law is clearly established that the “public concern test” does not apply to the petitioning activity in the instant case.

First, in the California Transport case the Supreme Court included within the scope of the petition clause complaints “respecting resolution of their [petitioners’] business and economic interests. ...” 404 U.S. at 511, 92 S.Ct. 609. Thus, the petition clause itself is not generally limited to matters of “public concern” as described in the Connick case but includes the petitioner's private business interests.

Second, the reason for the “public concern” test in Connick — to maintain order and avoid disruption in the governmental workplace — does not apply in this case because the plaintiff was not a governmental employee subject to the discipline of a governmental employer. She was simply a citizen offering services to a state agency.

Since the reason for the test is missing in the present case — maintaining order in the governmental workplace — the test should not be applied here, and the district court was correct in not including in its instructions to the jury a limitation on liability based on the Connick public concern test. Third, we find no authority in the Sixth Circuit limiting petitioning activity by public employees to matters of “public concern” either generally or in the governmental employment context. In Valot v.

Southeast Local School District Board of Education, 107 F.3d 1220 (1997), one judge believed .that the petition clause should be so limited in actions by public employees against their employers, but two other judges of the court did not agree. See also San Filippo v. Bongiovanni, 30 F.3d 424 (3rd Cir.1994) (holding that the “public concern” test does not apply to petitioning public employees), discussed and analyzed extensively in Shea, San Filippo v. Bongiovanni: The Public Concern Criteria and the Scope of the Modem Petition Right, 48 Vand. L. Rev. 1697 (1995), and Thaddeus-X v.

Blatter, 175 F.3d 378, 392 (6th Cir. 1999)(en banc) (holding that a prisoner’s right to petition the government for redress of grievances is not subject to the public concern limitation imposed in free speech actions involving public employees). Thus there is no basis in our First Amendment jurisprudence for applying Con-nick’s public concern test to petitioning activity by a private business woman who is simply supplying services to a governmental agency as an independent contractor.

The fact that there is a judge somewhere, as imagined by our dissenting colleague, who in this case might conclude erroneously that a private citizen like plaintiff, who tows cars for a living and receives no compensation from the state, is “tantamount” or “analogous” to a government employee, does not persuade us. After many years watching judges, we agree that a judge or judges somewhere might so conclude.

But when such a ruling would be clearly contrary to a Supreme Court case like California Transport, supra, and entirely inconsistent with the Supreme Court’s orderly-public-workplace reasoning in the Connick case, we should not be dissuaded by the error of such a hypothetical judge.

This is especially true when we recognize that government retaliation for filing a petition violates the literal language of the Petition Clause which forbids “abridging ... the right of the people ... to petition the government for a redress of grievances.” Most cases can be imagined to be “tantamount” or “analogous” to some other case. We should not split hairs when the conduct literally violates the language of the Petition Clause and when the Supreme Court seems to be clear on the subject.

For these reasons, we conclude that the law interpreting the petition clause protects the plaintiff in filing a complaint with the Ohio Highway Patrol claiming sex discrimination, and this law was clearly established prior to the retaliatory conduct found by the jury in the present case. We also conclude that the law was clearly established that the “public concern” test does not apply to plaintiffs petitioning activity. Hence the doctrine of official immunity is inapplicable, and the jury verdict should not be set aside for either of the two reasons advanced by the defendant.

Accordingly, the judgment of the district court is AFFIRMED.