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John Newton; Donald Berry; Joan Braun v. Paul Lepage

November 28, 2012

JOHN NEWTON; DONALD BERRY; JOAN BRAUN; NATASHA MAYERS; ROBERT SHETTERLY; PLAINTIFFS, APPELLANTS, JONATHAN S.R. BEAL, PLAINTIFF,
v.
PAUL LEPAGE, IN HIS CAPACITY AS GOVERNOR OF THE STATE OF MAINE; JOSEPH PHILLIPS, IN HIS CAPACITY AS DIRECTOR, MAINE STATE MUSEUM; RICHARD J. WINGLASS, IN HIS CAPACITY AS COMMISSIONER OF THE MAINE DEPARTMENT OF LABOR; DEFENDANTS, APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John A. Woodcock, U.S. District Judge]

The opinion of the court was delivered by: Lynch, Chief Judge.

Before Lynch, Chief Judge, Boudin, Circuit Judge, and Woodlock,*fn1 District Judge.

The question presented is whether the governor of Maine violated the First Amendment by removing a large state-owned mural, commissioned by the former administration, from its location on the walls of a small waiting room for visitors to the Maine Department of Labor ("MDOL"). The governor's initial stated reason was that he agreed with complaints that the mural did not convey a message of evenhanded treatment toward both labor and employers and so the mural was inappropriate for that particular setting at MDOL. At the same time, he said the mural would be placed into a different public building, the Portland City Hall. Later, the governor added that he objected to the mural's remaining at the MDOL location because the mural had been paid for from government funds which would better have been used for the state unemployment fund. To be clear, the governor's stated objections were to the location of the mural on the MDOL walls; he stated the mural would be reinstalled in another building.

Whatever the wisdom of the decision to remove the mural from that location, the accountability for that decision lies in the political process. The district court correctly entered judgment for defendants on plaintiffs' claims of a First Amendment violation. Newton v. LePage, 849 F. Supp. 2d 82 (D. Me. 2012).

I.

In 2007, the administration of Maine Governor John Baldacci commissioned Judy Taylor, a Maine painter, to produce a mural for the small public waiting room of the MDOL's offices in Augusta. The sign on the waiting room stated:

Maine Department of Labor

Commissioner of Labor

Employment Service

Rehabilitative Services

Labor Standards (Safety Works)

Unemployment Compensation

Administrative Hearings

Center for Workforce

Research and Information

Contested administrative workers' compensation hearings between employers and employees were held in the offices, as well as other activities. MDOL rented these offices in a privately owned building that also housed the offices of private entities.

Under the contract between MDOL and Taylor, MDOL paid Taylor $60,000 for a "Maine Labor Mural" consisting of "panels depicting selected episodes in the history of Maine labor" whose "permanent location" was the "Department of Labor, Augusta, Maine." The mural appears to be about six feet high and thirty feet long spanning two walls. The contract provided that "[o]fficial sole ownership [by the state] of the work occurs when a letter of final acceptance is sent by the contracting agency to the artist," and that:

The work will be placed in the location for which it was selected. The contracting agency agrees that the artist and the Commission will be notified if, for any reason, the work has to be removed or moved to a new location. The artist and the Commission have the right to advise or consult with the contracting agency or its designee regarding this treatment of the work.

The contract plainly contemplated that the mural could be shown in a different location and the artist's consent was not required.

The mural was paid for using both Maine and federal funds from the federal Reed Act, 42 U.S.C. § 1103 (regarding employment security funds); the Bureau of Labor Standards; the Bureau of Rehabilitation Services; the Center for Workforce Research and Information; and the MDOL Overhead account in the Commissioner's Office. The mural was not funded by Maine's public arts program, the Percent for Art program,*fn2 and was not a Percent for Art project.

On August 9, 2008, the completed mural was installed in an anteroom at the MDOL where visitors typically waited before meetings with MDOL staff. The mural contained panels which depicted a shoemaker teaching an apprentice, child laborers, women textile workers, workers casting secret ballots, the first Labor Day, woods workers, the 1937 shoe strike in Lewiston and Auburn, labor reformers, women workers during World War II, the 1987 ...


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