Developer's 1st Amendment Retaliation Suit Goes Nowhere

By Jonathan R. Tung, Esq. on March 22, 2016 | Last updated on March 21, 2019

A developer in Jackson, Mississippi will get no relief from a lower court's ruling that the mayor should not be held liable for alleged Constitutional violations against him. The case is interesting because the owner of the company alleged corruption at the state's capitol and later tried to secure a contract with the city to develop a bank in the city.

Sometimes it's best not to insult the people you'd like to maintain future business with.

Bite the Hand that Feeds You

Although the facts are not exactly a case of dog biting the hand that feeds, there's some similarity.

The plaintiff in this case, Mr. Don Hewitt, owned the company Advanced technology Building Solutions (ATBS). He wanted to redevelop a bank in Jackson, Mississippi. He contacted the city's Joint Redevelopment Authority (JRA) and got a commitment from them that they would employ "best efforts" in securing a $5,000,000 bond that would be used to fund the project. But for some reason, that funding never took place. Support for the redevelopment of the bank stalled in the JRA's finance committee and was never presented before the city council whose authority was required before the loan could be issued.

In Court

ATBS sued the city of Jackson alleging misdeeds by the mayor. Documents indicate that Hewitt had earlier made statements cronyism in the mayor's office after another unrelated project he had pursued fell through the cracks. In that project, Hewitt had offered a lower bid than a competitor but was not selected. The city rebuffed this factual claim and maintained that the funding was stopped because there were concerns about the budget. It was a close call at the district level because the jury found for Hewitt and awarded him and his company $600,000. But the city moved for a JMOL and successfully had the jury's decision reversed.

The Circuit Affirms

The Fifth Circuit refused to overturn the lower court's decision to grant JMOL to the city. It is academic that parties can sue a municipality "under color of any statute, ordinance, regulation, custom, or usage." Monell v. Dep't of Soc. Servs. The circuit underscored that liability must at least be based on an "official policy."

A decision by a single person can represent "an act of official government policy," true, but as Monell establishes, "liability attaches only where the decision maker possesses final authority to establish municipal authority with respect to the action ordered."

This was the most crippling piece of law to ATBS's position. Hewitt had contended that the mayor was the final policy maker because he had "superintending control of all the officers and affairs of the municipality." ATBS alleged that the mayor pulled strings to get the funding for his project ended.

The Fifth Circuit didn't really seem to be too bothered by that because the law that plaintiff had alleged actually focused on a different element of the case. What mattered, in the opinion of the courts, was whether or not the mayor was the final decision maker. And in the opinion of the Court, he wasn't.

The court cited Mississippi law in In re McNeil which stated that "the power to appropriate funds through a budget is a fundamental legislative power," suggesting that it is the city council, not the mayor who has final say.

The circuit turned to other cases, laws, and policies of different authorities. A totality of the differing opinions seemed to point to the consensus that the mayor's power was limited by the checks and balances within government and that the legislature was more properly characterized as final policy maker.

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