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Thursday, April 20, 2017

Court Addresses Ban on Citizen Contact with Government Officials

A federal court recently decided an interesting case which could have occurred in any governmental body in the United States.  The case was decided by the Third Circuit Court of Appeals and is called Mirabella v. Villard.  

The Mirabella family petitioned their local township government for assistance in a dispute with neighbors and threatened to sue the government. The dispute revolved around a wetland owned by Montgomery Township and abutting the Mirabellas and neighboring property. The Mirabellas allege that their neighbors extended their backyards into the public wetlands by attempting to fence in the open space and place playground equipment there and landscaping it.  The Mirabellas complained to the Township which removed the fence and required the neighbors to move their playground equipment and initially required the neighbors to stop landscaping the open space.  The Mirabellas, however, alleged that their neighbors continued to cut and clear the open space and continued to complain about this, but the Township ultimately reversed course and gave the neighbors permission to mow the open space.

The Mirabellas viewed the Township’s response as overly permissive and environmentally destructive.  They notified the Township Board of Supervisors by email that they intended to sue their neighbors for encroachment and destruction of the open space.  They criticized the Township for not protecting its rights in the land.  They also indicated they would name the Township as a party in the lawsuit. 

On the same day the Mirabellas threatened litigation, the Chairperson of the Board of Supervisors wrote to the attorney for the Township and copied the Mirabellas.  The official claimed that such a lawsuit would be frivolous and wanted to let the parties know that the Township would seek sanctions if the case was filed.  The Mirabellas, both lawyers, responded that they felt that they had a strong case. Later that night, the Chairperson of the Board of Township Supervisors replied to the Mirabellas as follows:
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 home or speak to me in public or private.  The die is caste (sic).
The Mirabellas did attend one meeting of the Board of Supervisors at which they protested the destruction of the open space and expressed their “dismay and anger” over the emails. 

The Mirabellas subsequently filed suit, alleging that the Township officials had violated their First Amendment rights by retaliating against them and cutting off their right to petition the government for redress of grievances. The district court denied the Township officials' motions to dismiss and said that Township officials were not entitled to qualified immunity.  

The Township officials then appealed to the Third Circuit arguing they had done nothing wrong and were entitled to qualified immunity. 

The Third Circuit first held that the email to the Mirabellas barring them from communicating directly with their local government, for any reason and indefinitely, “was sufficient to deter a person of ordinary firmness from exercising constitutional rights.”  The Court stated that the “no contact” email was a direct violation of their First Amendment right to petition the government for redress of grievances, holding that citizens have the right to petition any department of government including the right to do so taken in anticipation of litigation.  The Court pointed out that governments do have the power to place certain reasonable “time, place or manner” restrictions on speech, but governments may not restrict speech “in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”  The restrictions on speech must also “leave open ample alternate channels for communication of the information.”  The Court then pointed out that the government itself bears the burden to demonstrate that the restriction is constitutionally permissible, but the Township could not satisfy that burden because they imposed an absolute ban on contact.  

Although the Court agreed with the Mirabellas that the Township's ban on contact with Township officials was a constitutional violation, the Court nevertheless held that the Township officials were immune from liability because a reasonable government official may not have known that imposing a "no contact" rule was unconstitutional.
Now that the court has indicated that this is an area where private citizens may be able to sue their government, it puts officials on notice that even angry citizens have substantial constitutional rights.

Post Authored by Stewart Diamond, Ancel Glink


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