Commissioner's effort to toss First Amendment case rejected

D.E. Smoot, Muskogee Phoenix, Okla.
·2 min read

Apr. 17—Lawyers representing a Muskogee County commissioner and a former employee who alleges he was fired in retaliation of his exercise of First Amendment rights continue to wrangle over a technicality after a federal judge said the case can proceed to trial.

District 1 Commissioner Ken Doke prevailed on one front, successfully arguing that an employee has no valid "political association" claim based on the affiliations of other family members. The court rejected his effort to dismiss a "free speech" claim based on his "mistaken belief" that Gary Avant was "spreading rumors" about a road project and another worker.

U.S. District Judge Ronald A. White writes in a 10-page order that while Doke's lawyer made no specific request for qualified immunity with regard to Avant's free speech claim, any "such motion would be denied." Qualified immunity is a defense available to public officials being sued in their capacity as an individual.

Doke acknowledged during his deposition "that he fired plaintiff primarily because of plaintiff's criticism regarding the fence and the other employee." Avant also testified he never made the statements about the road project or the other employee, a fact White included in a footnote after the order was drafted, which prompted a flurry of supplemental filings after he denied two of three claims included in Doke's motion for summary judgment.

White rejected the commissioner's argument that he should not be held liable for the termination of Avant's employer-sponsored health insurance because that "was not an act with which he was involved." The judge notes while that may be true, "cancellation of insurance was a foreseeable consequence of termination," and its loss may be counted as damages related to his First Amendment claim.

Michael L. Carr, who represents Doke, argued in a post-order supplemental brief the U.S. Supreme Court limits "mistaken belief" claims in First Amendment retaliation lawsuits to those based on political association claims.

Mark Hammons, who represents Avant, cites the same case to support an argument that "the mistaken belief" doctrine extends to all constitutionally protected political activity.