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Hirt v. Unified School District No. 287

United States District Court, D. Kansas

April 24, 2019

GENE HIRT, et al., Plaintiffs,
UNIFIED SCHOOL DISTRICT NO. 287, et al., Defendants.



         Plaintiffs Gene Hirt and Eric Clark filed this case under 42 U.S.C. § 1983 alleging constitutional violations under the First, Fifth, and Fourteenth Amendments, along with state claims under the Kansas Open Meetings Act (“KOMA”) and Kansas Open Records Act (“KORA”).[1] The defendants in the case are the Unified School District 287 (“USD 287”) and Superintendent Jerry Turner, named in his individual capacity. Doc. 49. The allegations stem from a July 13, 2015 letter to Hirt that banned him from school district property.

         Both sides seek summary judgment-Plaintiffs on some claims and Defendants on all. Doc. 142; Doc. 147.[2] Factual disputes prevent summary judgment on the issue of whether the categorical ban of Hirt violated his First Amendment rights. But because the law on the First Amendment issue is not clearly established, Turner is entitled to qualified immunity on all claims against him individually. Defendants are also entitled to summary judgment on Hirt's due-process claim, Clark's First Amendment claim, and on Plaintiffs' claims under both KOMA and KORA.

         I. BACKGROUND[3]

         A. School Board Meeting Exclusion

         USD 287 holds school board meetings once a month to address school matters. At board meetings, members of the public are allowed three minutes to address the board during the “patron forum.” Doc. 149 at 3-4; Doc. 154 at 3.

         Neither Hirt nor Clark have any children or family members who attend USD 287 schools. Doc. 155 at 2-3. Defendants assert that neither Hirt nor Clark do any business with USD 287, but Plaintiffs dispute that, claiming that attending school board meetings, submitting open records requests during office hours, and attending sporting events constitute lawful business. Doc. 149 at 3; Doc. 155 at 2-3; Doc. 156 at 1.

         From February 2015 through June 2015, witnesses observed Hirt driving through school parking lots during school hours at least sixteen times, though no one from the school ever advised him that doing so was a violation of any school district policy. Doc. 154 at 3; Doc. 149 at 3; Doc. 155 at 12. On March 25, 2015, school staff told Turner that Hirt had come to a school during school hours with a photographer to take pictures. When staff denied him entry, they reported he became angry. Doc. 154 at 3; Doc. 156 at 1-2. On April 2, 2015, school staff told Turner that Hirt again tried to enter a school building during school hours but was denied access. School staff reported that Hirt made them afraid for their safety. Doc. 149 at 3; Doc. 155 at 3; Doc. 154 at 3; Doc. 156 at 2.[4]

         Following the June 8, 2015 school board meeting, Hirt called Turner a “dork.” Doc. 149 at 4; Doc. 155 at 4. Hirt also called board members names while in the audience at school board meetings, including calling board members “sons of bitches.” Doc. 149 at 4. Hirt also spoke up outside the context of the patron forum without permission and was reprimanded by the school board president. Doc. 149 at 4. But USD 287 never restricted or reprimanded Hirt for any of his comments during the patron forum. Doc. 154 at 3; Doc. 149 at 5.

         Until July 2015, Hirt was never asked to leave any school premises or any of the school board meetings he attended (approximately 40 meetings between 2012 and 2015). Doc. 155 at 9-10. Hirt also observed numerous people at numerous school board meetings talking outside of the patron forum, including commenting and mumbling, without being reprimanded. Doc. 155 at 10.

         But on July 13, 2015, Turner, after consultation with school district attorneys, and pursuant to his authority under district policies KGDA and KGD, sent a letter to Hirt stating that he was no longer allowed on USD 287 property. Doc. 143 at 1-2; Doc. 154 at 2; Doc. 149 at 2, 4.[5] Those policies give the superintendent authority to deny access to people with no lawful business with a school or those who are disruptive or disturbing towards normal educational functions. Doc. 154 at 3; Doc. 149 at 4-5.

         On June 14, 2017-after this case was filed-Defendants notified Hirt that he was no longer excluded from entering USD 287 property to attend board meetings or public events. Doc. 154 at 6.[6] The parties dispute why Defendants banned Hirt from school property. Defendants claim it was because of Hirt's increasingly rude and disruptive behavior and comments at school board meetings, his numerous unauthorized trips onto school property that made school staff uncomfortable, and his “threatening” behavior towards Turner following the June 8, 2015 school board meeting. Doc. 154 at 3; Doc. 149 at 4. Hirt contends that those reasons are a “ruse” and that it was because he called board members “SOBs.” Doc. 155 at 4-6; Doc. 156 at 2-4. Between July 13, 2015 (the date of the exclusion letter), and June 14, 2017 (when Hirt's exclusion was lifted), there were approximately twenty-four USD 287 school board meetings. Doc. 143 at 1. Hirt would have attended all USD 287 sporting events during that time, but for the July 13 exclusion letter. Doc. 155 at 9. Additionally, on August 19, 2015, Hirt and Clark attended an Open House event at Williamsburg Elementary School. A sheriff's deputy asked Hirt to leave, which he did.[7] Doc. 155 at 9; Doc. 159 at 2.

         Clark attended and spoke at school board meetings on April 13, 2015, May 11, 2015, and August 12, 2015. Doc. 149 at 7; Doc. 155 at 11; Doc.159 at 3. Specifically, Clark spoke during the patron forum at the August 12, 2015 meeting and used the terms “ninnies” and “nincompoops, ” though the parties dispute whether Clark was referring to school officials or whether he was just speaking in hypothetical terms. Doc. 149 at 7; Doc. 155 at 8. Regardless, Clark has never been specifically excluded from any school district property or had any action taken against him by USD 287. Doc. 149 at 7. Clark claims he has self-censored himself since Hirt was excluded out of fear that the same action would be taken against him. Doc. 155 at 11.

         B. Kansas Open Records Act Requests

         Hirt sent a letter to Turner, who is custodian of records for USD 287, on July 21, 2015. The letter was in response to the July 13 exclusion letter, but the parties dispute whether the July 21 letter was also a KORA request requiring a response. Doc. 143 at 1; Doc. 154 at 2, 4; Doc. 156 at 4-5; Doc. 149 at 5; Doc. 155 at 6-7. Specifically, the July 21 letter from Hirt largely addresses the July 13 exclusion letter and asks for clarifications about it. In addition to asking Turner to clarify and define certain words used in the July 13 exclusion letter and to cite to the evidence relied on to exclude Hirt, Hirt also asked Turner to “please provide the policy and/or procedure which was used for determining sanctions or penalties and when they are to be applied by the district.” Doc. 149-17 at 3. The parties dispute whether this language constitutes a KORA request. Doc. 154 at 4; Doc. 156 at 4.

         Clark separately sent two open records requests that are relevant to this case. He sent the first on July 21, 2015, and it requested records “indicating any type of disciplinary action concerning Gene Hirt, ” and “containing any reference to Gene Hirt in official memoranda of the District Superintendent.” Doc. 154 at 4. Defendants denied the request, citing a KORA exemption. Doc. 154 at 4; Doc. 149 at 6. Clark disputed the exemption and filed a lawsuit in Franklin County District Court, which upheld the claimed exemption as to the July 13 exclusion letter to Hirt. Doc. 154 at 4; Doc. 149 at 6. The Kansas Court of Appeals later reversed that decision and ruled that the July 13 exclusion letter to Hirt should be disclosed under KORA. Doc. 154 at 5; Doc. 149 at 6. USD 287 then provided a copy of the July 13 exclusion letter to Clark in November 2018. Doc. 154 at 5; Doc. 149 at 7.[8]

         On March 24, 2017, Clark made another KORA request for “any correspondence, ” “any communication, ” or any record constituting a “notice of any action, policy or determination relating to any regulatory, supervisory or enforcement responsibility of USD 287.” Doc. 154 at 5; Doc. 143 at 1; Doc. 149 at 7. Turner and Clark wrote back-and-forth attempting to clarify Clark's request. Doc. 154 at 5; Doc. 149 at 7-8. Turner eventually informed Clark that there were no other responsive documents, other than the July 13 exclusion letter to Hirt-which, at that time, had been ruled exempt under KORA by the Franklin County District Court. Doc. 154 at 4-6; Doc. 149 at 8.[9] Clark acknowledged this, stating that the “obligation concerning my request has been discharged except concerning that one letter . . . .” Doc. 154 at 6; Doc. 149 at 8 (emphasis in original).

         Both parties now move for summary judgment on some or all claims. Doc. 142; Doc. 147.[10]

         II. STANDARD

         Summary judgment is appropriate if “the record, including depositions, documents, . . . affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” establishes that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party bears the initial burden of establishing the absence of a genuine issue of fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the nonmovant to demonstrate that genuine issues remain for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). To carry this burden, the nonmovant “may not rely merely on . . . its own pleadings.” Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010) (internal quotations and citations omitted). “Rather, it must come forward with facts supported by competent evidence.” Id. The inquiry turns on “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 251-52. In applying this standard, courts must view the evidence and all reasonable inferences from it in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587.

         III. ANALYSIS

         As a preliminary matter, the Court notes that the parties have famed the issues in their dueling summary-judgment motions in a way that fails to clearly track the Third Amended Complaint or the Pretrial Order. This has made resolution of these motions considerably more difficult than it needed to be.

         Plaintiffs seek partial summary judgment on five claims:

1. A statutory violation of KOMA as to Hirt (Count III).
2. A statutory violation of KORA as to Hirt (Count IV).
3. A statutory violation of KORA as to Clark (Count VII).
4. A challenge to the constitutionality of USD 287 policy KGDA (Count I).
5. Retaliation for protected speech as to Hirt (Count I).

Doc. 143 at 3.

         Defendants move for summary judgment on all of Plaintiffs' claims. Doc. 147. The arguments in Defendants' motion are:

1. The private letter to Hirt did not create a policy.
2. Defendants did not violate Hirt's First Amendment rights.
3. Hirt was not subjected to retaliation for exercise of First Amendment rights.
4. The July 13 letter was not an unjustified prior restraint on Hirt's speech.
5. Clark lacks standing to assert a personal claim of a First Amendment violation.
6. Hirt does not have a substantive due process claim.
7. Hirt was not entitled to procedural due process.
8. Superintendent Turner is entitled to qualified immunity.
9. Hirt does not have a statutory right to attend open meetings.
10. Hirt's July 21, 2015, letter was not a request for a public record.
11. Clark's KORA claim is barred by res judicata and collateral estoppel.

Doc. 149 at 1-2.

         The Third Amended Complaint contains eleven counts, most of which are alternative theories based on apparently known versus “unknown” school district policies. Doc. 93 at 23-26. Ultimately, the Third Amended Complaint contains counts for First Amendment violations as to both Hirt and Clark (Counts I, V, IX, and XI), a due-process violation as to Hirt (Counts II and X), KOMA and KORA claims for both Hirt and Clark (Counts III, IV, VI, and VII), and an Equal Protection violation as to Hirt (Count VIII).

         But the Pretrial Order reflects a more narrowed set of claims: that the July 13 exclusion letter “is unconstitutional facially and as-applied, concerning due process, right of free speech, right to receive information, and right to assemble;” that it chilled both Plaintiffs' First Amendment rights; that it violated Hirt's statutory right to attend open meetings; that Turner, as custodian of records, violated both Plaintiffs' statutory right to obtain open records; and that Turner retaliated against Hirt based on his protected speech. Doc. 138 at 9.

         Count VIII (Equal Protection) and Count VI (Clark's KOMA claim) were omitted from the Pretrial Order. Accordingly, those claims are waived and no longer part of this case. Koch v. Koch Indus., Inc., 179 F.R.D. 591, 596 (D. Kan. 1998). The remaining claims are addressed below.

         A. Defendants did not violate KOMA by excluding Hirt from school board meetings (Count III).

         Hirt asserts that he was denied a statutory right under KOMA, K.S.A. §§ 75-4317, et seq., when he was barred from school property, and he requests declaratory and injunctive relief. Doc. 143 at 5-6.[11] KOMA states that “meetings for the conduct of governmental affairs” are to be open to the public. K.S.A. § 75-4317(a). KOMA does not guarantee attendance for every individual. See K.S.A. § 75-4318(g)(4) (providing exceptions to the open meetings law, including “if otherwise provided by state or federal law”). In determining whether KOMA has been violated, the Kansas Court of Appeals has instructed courts to “overlook mere technical violations where the public body has made a good faith effort to comply and is in ...

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