MARK W. EVES, Plaintiff, Appellant,
PAUL R. LEPAGE, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
G. Webbert, with whom Carol J. Garvan and Johnson, Webbert
& Young, LLP were on brief, for appellant.
Patrick Strawbridge, with whom Bryan K. Weir and Consovoy
McCarthy Park PLLC were on brief, for appellee.
Lynch, Stahl, and Thompson, Circuit Judges.
LePage, the Republican Governor of Maine, has had deep
political disagreements with members of the Maine
Legislature, particularly those who are Democrats --
including the Speaker of the House, plaintiff Mark Eves. The
Speaker, who is term-limited, obtained a contract of
employment with Good Will-Hinckley ("GWH"), a Maine
nonprofit that operates the MeANS charter school for at-risk
children, which is largely funded by biennial grants from the
state. Whether to disburse that grant money to GWH was left
by the legislature to the discretion of the governor.
LePage conveyed to GWH his displeasure at the
organization's decision to hire the Speaker and
threatened to withhold GWH's discretionary funding when
payment would ordinarily be due, assuming passage of
Maine's budget for Fiscal Years ("FY") 2016 and
2017. Faced with the prospect of losing funding on which it
depended, GWH terminated the Speaker's employment
Speaker sued the Governor in federal court for damages and
injunctive relief, asserting that the Governor, in violation
of the U.S. Constitution, had retaliated against the
Speaker's exercise of his First Amendment rights. The
Speaker also sought relief under state tort law. The U.S.
District Court for the District of Maine dismissed all
claims. Eves v. LePage, No. 1:15-cv-300-GZS, 2016 WL
1948869 (D. Me. May 3, 2016).
affirm dismissal with prejudice of the Speaker's federal
claims, on qualified immunity grounds. As for his state
claim, we vacate, and direct the district court to dismiss it
issues in this case are ultimately issues of law, which
receive de novo review. See United States v. Baird,
712 F.3d 623, 628 (1st Cir. 2013). Like the district court,
we "assume the truth of the complaint's
well-pleaded facts and draw all reasonable inferences in
[Speaker Eves's] favor." Eves, 2016 WL
1948869, at *1 (citing Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)).
Maine's Government and Budget Process
begin with background information that is helpful in
understanding the issues in this case.
in the Maine Legislature is not a full-time job for most
representatives. The legislature typically sits twice during
each two-year session: once from December to June in year
one, and then again from January to April in year two.
See Me. Rev. Stat. Ann. ("M.R.S.A.") tit.
3, § 2. A legislator's salary is $24, 056, spread
across the two years, plus a $38 per diem, when the
legislature is active, "for housing or mileage and
tolls." Eves, 2016 WL 1948869, at *2. Most
legislators have at least one other source of income, often
in the private sector. Id. In fact, legislators from
both parties agree that "[n]early all legislators depend
on a career outside of the State House to provide for their
families." Id. at *5 (relaying statement by
Maine Senate President Mike Thibodeau, a Republican).
biennial budget process starts when the Department of
Administrative and Financial Services, after considering
submissions from various agencies and policy committees,
"prepare[s] and submit[s] . . . a state budget
document" to the governor. M.R.S.A. tit. 5, § 1662.
The governor reviews the draft budget, alters it, and then
sends it to the legislature before the statutory deadline
"in January of the first regular legislative
session." Id. § 1666. The legislature must
"enact a budget no later than 30 days prior to the date
of adjournment prescribed" by law. Id. §
1666-A. The legislature's budget then returns to the
governor, who has line-item veto power, permitting him to
reduce "any dollar amount" in the budget. Me.
Const. art. IV, pt. 3, § 2-A. The legislature can
override any line-item veto with a simple majority of both
the House and the Senate. Id. The governor can also
veto the entire budget, like any other piece of legislation,
in which case a 2/3 majority of both the House and the Senate
is necessary to override the veto. Id. art. IV, pt.
3, § 2.
facts of this case, which occurred mostly in June 2015, arose
in the midst of the biennial budget process and involved
serious political conflict between Governor LePage and the
legislature. In a press conference on May 29, 2015, the
Governor stated that he planned to veto "every bill
sponsored by a Democrat" for the rest of his term in
office "unless the Legislature agreed to support his
plan to have a referendum vote on eliminating Maine's
income tax." Eves, 2016 WL 1948869, at *4. The
Governor did, in fact, veto ten bills on June 8, 2015,
stating that he had done so purely because of their
Democratic sponsorship. After the legislature passed a budget
on June 17, 2015, the Governor issued sixty-four line-item
vetoes, each of which the legislature overrode on June 18 and
29, 2015, the Governor vetoed the entire budget. The
legislature also overrode that veto, on June 30, and enacted
the budget for FY2016 and FY2017 into law. That budget
included discretionary funding for GWH.
Good Will-Hinckley and Speaker Eves
a private nonprofit organization, located in Fairfield,
Maine, which aims to provide services to at-risk children
throughout the state. Founded in 1889 as a "farm, school
and home for needy boys, " GWH now has a broader mission
and portfolio encompassing a "college step-up program,
" a "Learning Center for youth with emotional or
behavioral challenges, " a nutrition program, a library,
and a museum. Id. at *2. The organization has long
depended on both private donations and government grants.
2009, GWH has been designated by Maine "to serve as the
nonprofit charitable corporation with a public purpose to
implement the Center of Excellence for At-risk
Students." Id. at *3; see M.R.S.A.
tit. 20-A, § 6951. Fulfilling this responsibility, GWH
opened a charter school in 2012, called the Maine Academy of
Natural Sciences ("MeANS"). MeANS has its own board
and its own principal; it also relies in large part on
discretionary state funding.
Maine state budget for FY2014 and FY2015 -- which covered the
period from July 1, 2013 to June 30, 2015 -- allocated $1,
060, 000 in discretionary funding to GWH for the purpose of
operating MeANS. In that period of time, the LePage
Administration chose to disburse all of that money. The
proposed budget for FY2016 and FY2017, under debate in spring
2015, contained an identical appropriation of $1, 060, 000,
to be paid to GWH in quarterly installments, as in previous
Cummings, formerly a Speaker of the Maine House of
Representatives, resigned as president of GWH in September
2014, having served for approximately four years. GWH began
searching for a successor, and plaintiff Mark Eves was one of
nineteen applicants. Eves, Maine's current Speaker, has
served in that role since 2012 and as a representative since
2008. Because he is term-limited, see M.R.S.A. tit.
21-A, § 553(2), he must leave the House entirely in
December 2016, when his fourth term expires. Speaker Eves
also has fifteen years of professional experience as a
marriage and family therapist. Since moving from California
to Maine in 2003, the Speaker has worked in that field, even
while serving in the legislature.
eight-member search committee interviewed Speaker Eves on
April 24, 2015. He visited the campus as one of three
finalists, and on April 30, the GWH Senior Leadership Team
unanimously recommended him as the best of the three. The
Team's memo "cited his 'extensive clinical
experience, ' his 'balance of executive
administration and fundraising experience, ' and his
'leadership style and polished approach' as reasons
for their conclusion." Eves, 2016 WL 1948869,
at *3. After Speaker Eves interviewed with the full boards of
GWH and MeANS on May 15, both voted unanimously to offer him
the job of GWH President.
5, 2015, Speaker Eves and GWH entered into a two-year
employment agreement, which contained a "for-cause
termination provision" and "no conditions or
contingencies" related to any actions or funding
decisions by the State. Id. at *4. GWH announced the
Speaker as its new President on June 9.
Governor LePage's Intervention
5, 2015, Governor LePage learned that GWH had decided to hire
Speaker Eves. The Governor promptly called GWH's Interim
President, stating "that he was extremely upset"
about the news and "us[ing] profanity to describe
[Speaker Eves] and his work." Id. That same day
or "soon after, " LePage sent a handwritten note to
GWH's Board Chair, which "referred very negatively
to Eves" and called the Speaker a "hack."
Id. The Board Chair's belief, after reading the
note, was "that GWH would lose $1, 060, 000 in state
funding if it retained Eves as its new President."
8, Governor LePage sent a public letter to the Board Chairs
of GWH and MeANS, "urging that they reconsider."
Id. The letter characterized Speaker Eves as "a
longtime opponent of public charter schools" who had
fought against "every effort to reform Maine's
government." Id. The GWH Board, "which
includes people of various political affiliations, "
discussed the letter and "agreed that their selection of
Speaker Eves [had been] well-supported and . . . not based on
political considerations." Id.
June 8, the Governor received a call from Gregory Powell, the
Board Chair of the Harold Alfond Foundation ("the
Foundation"), who was responding to a June 5 voicemail
from the Governor. During their conversation, Powell learned
that the Governor was "withdrawing all support,
including financial support, from GWH as long as Eves
remained as President of the organization." Id.
Responding to that news, Powell sent a letter to GWH's
Board on June 18, warning them that the Foundation had
"serious concern[s] . . . regarding [GWH's] future
financial viability" if the Governor were to follow
through on his threat to withhold the $1, 060, 000 of state
funding. Id. Those concerns, he further warned, made
the Foundation uneasy about committing to a $2, 750, 000
grant that the Foundation had been planning to give to GWH.
about June 9, Governor LePage told the Acting Commissioner of
the Department of Education not to send any more payments to
GWH that were not required by law. The Commissioner duly
froze $132, 500 in discretionary funds scheduled to be sent
to GWH for the next quarter (beginning on July 1). At that
point, having passed no new budget, the ...