NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 27 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BRAD CHINN, No. 10-35550

Plaintiff - Appellant, D.C. No. 2:09-cv-00354-EFS

v.

MEMORANDUM*

CITY OF SPOKANE; MARY VERNER;

JOE SHOGAN; NANCY

MCLAUGHLIN; MIKE ALLEN; AL

FRENCH; STEVE CORKER; RICHARD

RUSH,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding

Argued and Submitted April 14, 2011* Seattle, Washington

Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.

Brad Chinn appeals the district court’s dismissal of his 42 U.S.C. § 1983

action against the City of Spokane, Mary Verner, Joe Shogan, Nancy McLaughlin,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. -2- Mike Allen, Al French, Steve Corker, and Richard Rush for wrongful retaliation in

violation of the First Amendment. We have jurisdiction pursuant to 28 U.S.C. §

1291. We review de novo the district court’s dismissal for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6), see Williamson v. Gen.

Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000), and affirm.

To recover under section 1983 for retaliation in violation of the First

Amendment, a plaintiff must establish that: “(1) he engaged in constitutionally

protected activity; (2) as a result, he was subjected to adverse action by the

defendant that would chill a person of ordinary firmness from continuing to engage

in the protected activity; and (3) there was a substantial causal relationship between

the constitutionally protected activity and the adverse action.” Blair v. Bethel Sch.

Dist., 608 F.3d 540, 543 (9th Cir. 2010). But Chinn’s case, like the plaintiff’s case

in Blair, “is not a typical First Amendment retaliation case” because the “adverse

action” being challenged “was taken by his peers in the political arena.” Id. at 543.

Chinn, like the plaintiff in Blair, “has little in common with the[] prototypical

plaintiffs” in First Amendment retaliation cases, such as the “government worker

who loses his job as a result of some public communication critical of the

government entity for whom he works,” or the “regulated entity that is stripped of

its business license after engaging in speech that displeases the regulator.” Id. at -3- 544 (internal citations omitted). Chinn, by contrast, had his appointment revoked

through the ordinary functioning of the judicial-confirmation process.

Furthermore, as was the case in Blair, Chinn “isn’t the only party in this case

whose interests implicate First Amendment concerns.” Id. at 545. While Chinn

undoubtedly had a First Amendment right to file a land use petition protesting a

proposed zoning change, the city council members had the corresponding right to

confirm a nominee they viewed as most fit for the municipal court judgeship, and

Mayor Verner had the right to choose a municipal court nominee who the city

council would confirm. Id. at 545-46; see also Stella v. Kelley, 63 F.3d 71, 75 (1st

Cir. 1995) (“Voting by members of municipal boards, commissions, and

authorities comes within the heartland of First Amendment doctrine, and the status

of public officials’ votes as constitutionally protected speech [is] established

beyond peradventure of doubt . . . .”). Finally, as we noted in Blair, “we expect

political officials to cast votes in internal elections in a manner that is, technically

speaking, retaliatory, i.e., to vote against candidates whose views differ from their

own.” 608 F.3d at 544. Although the city council members never cast on-the-

record votes against Chinn’s confirmation, that distinction alone does not save his

claim. To accept Chinn’s argument would be to hold that the First Amendment

prohibits elected officials from choosing not to confirm, or appoint, judicial -4- officials whose speech or views they don’t embrace. See id. at 544-45. But

“[e]xperience and political reality convince us this argument goes too far; the First

Amendment does not succor casualties of the regular functioning of the political

process.” Id. at 545. Therefore, even if the defendants’ actions towards Chinn

stemmed from his filing of a land use petition against the City of Spokane, their

actions “did not amount to retaliation in violation of the First Amendment.” Id. at

546. Because we affirm the district court’s dismissal on the ground that Chinn

fails to state a claim pursuant to Rule 12(b)(6), we need not address whether the

defendants are entitled to absolute legislative immunity.

AFFIRMED.

FILED

Chinn v. City of Spokane, No. 10-35550 APR 27 2011

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

TASHIMA, Circuit Judge, concurring in the judgment:

I do not agree that Blair v. Bethel School District, 608 F.3d 540 (9th Cir.

2010), controls this case. Unlike Blair, this is not a case in which “the ‘adverse

action’ being challenged ‘was taken by his [the plaintiff’s] peers in the political

arena.’” Maj. Op. at 2 (quoting Blair, 608 F.3d at 543). Also, unlike Blair, this is

not a case in which “‘political officials [] cast votes in internal elections . . . .’”

Maj. Op. at 3 (quoting Blair, 608 F.2d at 544). And, while I agree with the

majority that “city council members had the . . . right to confirm a nominee they

viewed as most fit for the municipal court judgeship,” id., that does not address,

much less answer, the question of whether, as alleged by plaintiff, the city council

had the right to refuse to confirm a nominee for an unconstitutional reason. I

disagree with the majority’s conclusion that the removal of a member from a

“titular position” due to the internal politics of the Board in Blair, 608 F.3d at 546,

is equivalent to “the defendants’ actions towards Chinn stemm[ing] from his filing

of a land use petition against the City of Spokane,” such that defendants’ “actions

‘did not amount to retaliation in violation of the First Amendment.’” Maj. Op. at 4.

Because Blair is not directly applicable to and does not control this case, I

would avoid the difficult constitutional issues presented in this case and go directly to the immunity issues and hold that defendants who are members of the city

council are entitled to absolute legislative immunity. See Community House v. City

of Boise, 623 F.3d 945, 960-63 (9th Cir. 2010). And, although it is a closer

question, I would further hold that Mayor Verner also is entitled to legislative

immunity. See id. at 963-64. Moreover, even if defendant Verner were not

entitled to absolute legislative immunity, because a judicial nominee’s First

Amendment rights in the context of the legislative confirmation process are not

clearly established, I would alternatively hold that Mayor Verner is entitled to

qualified immunity. See Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

For the above stated reasons, I agree with the majority that the judgment of

the district court should be affirmed.

-2-