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Media Alerts - Mirabella v. Villard - Third Circuit
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April 12, 2017
  Mirabella v. Villard - Third Circuit
Headline: No Free Speech Protection from Montgomery Township Officials' Retaliatory Email After Plaintiff Had Threatened Litigation Against Township

Area of Law: First Amendment

Issue(s) Presented: Is the right to be free from a retaliatory restriction on communication with one's government protected under the First Amendment when the plaintiff has threatened or engaged in litigation against the government? 

Brief Summary: A Montgomery Township couple received a tersely worded email in response to their informing the Township that they would be suing their neighbors and the Township for alleged environmental destruction of local public wetlands. The Third Circuit found that the local official's direction to "[p]lease never contact me" violated the couple's First Amendment rights to freedom from retaliation against exercise of free speech and to petition the government. The Township was spared by the doctrine of qualified immunity, which shields government officials from liability unless they violate clearly established rights. The Third Circuit did not find any cases clearly establishing the right to be free from a retaliatory restriction on communication with one's government when the plaintiff has threatened litigation against the government.

Extended Summary: The Mirabellas, both attorneys, complained to Montgomery Township that their neighbors allegedly extended their backyards into public Montgomery Township-owned wetlands that abut their properties by attempting to fence in the open space, placing playground equipment there, and landscaping it. Though the Township required the neighbors to remove the fence and playground equipment and stop landscaping, it ultimately allowed the neighbors to mow the open space. Viewing the Township's response as environmentally destructive, the Mirabellas emailed the Township Board of Supervisors that they intended to sue their neighbors for encroachment and destruction of the open space. In their email, the Mirabellas also claimed that the Township would be an indispensable party in the litigation, which the Board of Supervisors members Joseph Walsh and Jeffrey McDonnell took as a threat to sue the Township. The Township responded via email that it would be seeking sanctions, and Mr. Mirabella defended the lawsuit as non-frivolous. Later that night at 11:26pm, Walsh sent the following from his iPhone and copied numerous Township officials:

Dear Mr[.] Mirabella and his wife attorney. Please direct all further communications to the Township attorney. Please never contact me, the Board of Supervisors or the Township employees directly. Do not call me at work, email me at work or speak to me in public or private. The dye is caste [sic].

In response, the Mirabellas filed a lawsuit against the Township alleging violations of their First Amendment rights, specifically that the Township retaliated against them for exercising free speech rights and that the Township violated their right to petition the government. The defendants filed motions to dismiss in which they argued qualified immunity. The Third Circuit found that the Mirabellas pled both First Amendment claims based on Walsh's email but they could proceed no further. Under qualified immunity, the right to be free from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government, was not clearly established.

On the retaliation claim, the Third Circuit found Walsh's email more than just an instruction to contact the Township attorney regarding the litigation because it barred the Mirabellas from communicating directly with their local government for any reason. The Third Circuit then examined whether freedom from a retaliatory restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government, is a clearly established right that would overcome the qualified immunity defense. Finding no support in other cases for such a right, the Third Circuit held the Township was entitled to qualified immunity.

The Mirabellas also alleged a First Amendment violation of their right to petition the government for redress of grievances based on the Walsh email. The Third Circuit found that the Mirabellas showed a burden on their free speech interests in petitioning their government that was substantially greater than the Township's litigation interests. Again, the Third Circuit found that a restriction on communication with one's government, when the plaintiff has threatened or engaged in litigation against the government, was not a clearly established right. A reasonable person in Walsh's position would not have known the email violated the Mirabellas' First Amendment rights. Accordingly, the Township was entitled to qualified immunity.


The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/153171p.pdf

Panel: Fuentes, Shwartz, and Restrepo, Circuit Judges 

Argument Date: July 12, 2016

Date of Issued Opinion: April 4, 2016

Docket Number: No. 15-3171

Decided: Reversed, in part

Case Alert Author: Rebecca Daily

Counsel: John Mirabella, Esquire, Counsel for Appellees; Harry G. Mahoney and Peter R. Kulp, Counsel for Appellants. 

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 04/12/2017 02:47 PM     3rd Circuit  

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