                                                                               FILED
                                                                   United States Court of Appeals
                                     PUBLISH                               Tenth Circuit

                     UNITED STATES COURT OF APPEALS                         July 22, 2016

                                                                         Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                            Clerk of Court
                        _________________________________

ZIA SHADOWS, L.L.C., a New Mexico
limited liability company; ALEX GARTH;
WILLIAM GARTH,

     Plaintiffs - Appellants,

v.                                                         No. 15-2009

CITY OF LAS CRUCES, a municipal
corporation,

     Defendant - Appellee.
                     _________________________________

                    Appeal from the United States District Court
                          for the District of New Mexico
                      (D.C. No. 2:09-CV-00909-WPL-SMV)
                      _________________________________

Cindy Rhodes Victor, Kus Ryan & Associates, PLLC, Auburn Hills, Michigan, for
Plaintiffs-Appellants.

David P. Lutz (William L. Lutz with him on the briefs), Martin, Lutz, Roggow &
Eubanks, P.C., Las Cruces, New Mexico, for Defendant-Appellee.
                       _________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
                  _________________________________

McHUGH, Circuit Judge.
                    _________________________________
                                 I.     INTRODUCTION

       This appeal arises from a zoning dispute between Zia Shadows L.L.C and the

City of Las Cruces (the City). Zia Shadows L.L.C. and its principals, Alex and

William Garth (collectively, Zia Shadows), filed suit in federal district court, alleging

the City’s delays in approval of a zoning request—and the conditions ultimately

attached to the approval—violated Zia Shadows’ rights to due process and equal

protection. Zia Shadows also alleged the City’s actions were taken in retaliation for

Zia Shadows’ public criticisms of the City. The district court granted summary

judgment to the City on Zia Shadows’ due-process and equal-protection claims, and a

jury found in favor of the City on Zia Shadows’ First Amendment retaliation claim.

       Zia Shadows now argues the district court erred in granting summary

judgment, the district court abused its discretion both in its instruction of the jury and

its refusal to strike a juror, and the jury’s verdict is against the clear weight of the

evidence. We affirm the district court’s judgment, concluding Zia Shadows failed to

establish the requisite elements of its due-process and equal-protection claims and

has not demonstrated reversible error in either the proceedings or verdict at trial.

                                  II.   BACKGROUND

       Zia Shadows operated a mobile-home park in Las Cruces, New Mexico, under

a special-use permit from the City. In late 2000, a dispute over water-rights fees

arose between Zia Shadows and the City, and Alex Garth protested these fees and

lodged written and oral complaints with the City Council. In December 2002, the

City informed Zia Shadows that, under a new zoning code adopted in 2001, Zia
                                             2
Shadows was required to enter into an approved compliance plan with the City before

it could replace or add new mobile homes in the park. In March 2003, Zia Shadows

submitted a proposed compliance plan, seeking to convert its park to a Planned Unit

Development (PUD), which would excuse Zia Shadows from compliance with certain

land-use requirements.

      The City’s Planning and Zoning Commission recommended approval of Zia

Shadows’ PUD application, but the City Council questioned whether Zia Shadows

provided a public benefit to offset the zoning variances it sought, as required by the

PUD ordinances. The City expressed some willingness to approve the project if Zia

Shadows helped to pay the cost of widening the adjacent public roadway, or if Zia

Shadows could demonstrate it was providing affordable housing as defined by the

U.S. Department of Housing and Urban Development. In August 2003, Zia Shadows

agreed to table its PUD application and to work with City staff to meet the City’s

requirements.

      In November 2004, Zia Shadows filed for bankruptcy to avoid foreclosure on

its property. Although Zia Shadows subsequently agreed to provide a public benefit

by paying for a portion of the road-widening project, the City expressed concern that

Zia Shadows would be unable to satisfy its obligations due to its bankruptcy.

Approval of Zia Shadows’ PUD application was therefore delayed until it could

obtain a bond to cover its obligations. The City ultimately approved the PUD

application in June 2006, subject to final plat approval and an agreement on the



                                           3
public-roadway improvements. But Zia Shadows’ lender foreclosed on the property,

and the property was sold in September 2006.

      Zia Shadows filed suit against the City in New Mexico state court, seeking

relief under 42 U.S.C. § 1983 for violation of its due-process, equal-protection, and

First Amendment rights. The City timely removed the action to federal court. The

City then sought summary judgment on all of Zia Shadows’ claims. The district court

granted summary judgment on Zia Shadows’ due-process and equal-protection

claims, but concluded that material factual disputes rendered summary judgment on

Zia Shadows’ First Amendment retaliation claim inappropriate. The parties tried that

claim before a jury, which returned a verdict in favor of the City. Zia Shadows then

filed a motion for a new trial; the district court denied the motion. Zia Shadows now

appeals.

                                    III. ANALYSIS

      Zia Shadows asserts four errors in the district court proceedings. First, it

contests the summary judgment rulings on its due-process and equal-protection

claims. Second, Zia Shadows claims it was prejudiced by a last-minute change to the

jury instructions. Third, it requests a new trial because the district court allowed a

City employee to sit on the jury. Fourth, Zia Shadows argues the jury’s verdict on its

retaliation claim was against the clear weight of the evidence.




                                            4
A. The District Court Did Not Err in Granting Summary Judgment on Zia Shadows’
                      Due-Process and Equal-Protection Claims.

      We first consider Zia Shadows’ challenges to the district court’s summary

judgment rulings on Zia Shadows’ due-process and equal-protection claims. “We

review the grant of summary judgment de novo applying the same standard as the

district court embodied in Rule 56(c).” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,

670 (10th Cir. 1998). “In applying this standard, we view the factual record and draw

all reasonable inferences therefrom most favorably to the nonmovant.” Id. Summary

judgment is proper “if the movant shows 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(a).

1. Due Process

      To prevail on a due-process claim under § 1983, “a plaintiff must first

establish that a defendant’s actions deprived plaintiff of a protectable property

interest.” Nichols v. Bd. of Cty. Comm’rs, 506 F.3d 962, 969 (10th Cir. 2007). A

property interest exists in the constitutional sense where a litigant can demonstrate a

“legitimate claim of entitlement” to the claimed benefit. Hyde Park Co. v. Santa Fe

City Council, 226 F.3d 1207, 1210 (10th Cir. 2000). In the municipal land-use

context—where the asserted property interest is a right to particular action or inaction

by city zoning authorities—our analysis of the litigant’s entitlement focuses on the

level of discretion allowed to the zoning authority under the applicable state and local

zoning laws. Id. A legitimate claim of entitlement to a particular land-use decision


                                           5
exists only when that decision is legally mandatory: where the land-use authority’s

“discretion is limited by the procedures in question,” and those procedures, “if

followed, require a particular outcome.” Nichols, 506 F.3d at 970. But “where the

governing body retains discretion and the outcome of the proceeding is not

determined by the particular procedure at issue, no property interest is implicated.”

Id. The litigant asserting a property interest in a particular zoning decision bears the

burden to “demonstrate that a set of conditions exist under state and local law” that

so limit the land-use authority’s discretion as to make the decision legally mandatory.

Hyde Park, 226 F.3d at 1210.

      In support of its due-process claim, Zia Shadows asserts a protectable property

interest in its special-use permit to operate as a mobile-home park and in the approval

of its PUD application. Thus, to prevail, Zia Shadows must show that under state or

local law, the City was required to leave Zia Shadows’ special-use permit intact or to

grant its PUD application more promptly and without the conditions to which Zia

Shadows objects.

      a. Special-Use Permit

      As to the special-use permit, Zia Shadows has not even attempted to meet its

burden; it merely asserts it had been granted a permit and was in compliance with the

permit’s conditions. This assertion may well be true, but it misses the crucial point:

whether the City had discretion to modify or revoke the permit through subsequent

zoning amendments. The district court concluded the City did have such discretion,

noting that Zia Shadows had not cited a single authority to the contrary. And Zia

                                            6
Shadows has failed on appeal to direct this court to any authority limiting the City’s

discretion to revoke or modify a special-use permit. Because Zia Shadows has failed

to meet its burden to show a legitimate claim of entitlement to the continued validity

of its special-use permit, we agree with the district court that Zia Shadows had no

constitutionally protected property interest in that permit.

      b. PUD Application

      With respect to approval of its PUD application, Zia Shadows relies on the

municipal ordinance that requires nonconforming mobile-home parks to seek

approval of a zoning compliance plan. This ordinance provides that a PUD “may

satisfy the compliance plan requirement” and requires any compliance plan to be

“approved, approved with conditions, or denied by the Community Development

Department.” Las Cruces, N.M., Code § 38-73(B)(3)(c).1 Because nothing in this

section requires further review by other City departments or the City Council, Zia

Shadows contends the Community Development Department’s approval alone vested

Zia Shadows with a legitimate expectation of—and therefore a legal entitlement to—

the approval of its PUD application without further review or conditions. Thus, in Zia

Shadows’ view, the City Council lacked discretion, or even authority, to delay, deny,

or attach additional conditions to the approval of Zia Shadows’ PUD application once

the Community Development Department had approved it as a compliance plan.



      1
         All citations to the Las Cruces municipal code are to the 2001 zoning code in
effect at the time of the dispute, which was supplied by the parties in the district
court record.
                                            7
      Zia Shadows’ argument assumes, however, that section 38-73 marks the

beginning and end of the ordinances governing its PUD application. But section 38-

73 by its terms addresses only the procedure by which the Community Development

Department is to review a mobile-home park’s proposed compliance plan—whether

that plan relies on a PUD, special-use permit, or other variance—and says nothing

about the procedure by which the underlying PUD application is to be considered.

Rather, as the district court observed, section 38-49 of the Las Cruces municipal code

establishes the process and standards for approval of a PUD application. And

section 38-49 explicitly gives the City Council final approval authority over the

“Concept Plan” for a PUD—the document which “forms the basis for approval of the

PUD”—and gives the Planning and Zoning Commission or the City Council final

approval authority over the final site plan. Las Cruces, N.M., Code § 38-49(D)(a).

      Here, because Zia Shadows sought approval of both the concept plan and final

site plan together in its PUD application, final approval for both plans rested

exclusively with the City Council.2 See Las Cruces, N.M., Code § 38-49(D)(d)(1)(a)


      2
         Zia Shadows contends that it had not submitted a “site plan application” and
therefore the Planning and Zoning Commission, rather than the City Council,
retained authority over its PUD application. But in its summary-judgment briefing
and a supporting affidavit from Alex Garth, Zia Shadows specifically represented to
the district court that it had submitted a “proposal for a PUD, a PUD Concept and site
plan for approval by the City.” And this representation was further supported by the
Community Development Director’s letter recommending approval of the PUD—also
attached to Zia Shadows’ summary judgment briefing—stating that Zia Shadows had
requested “PUD Concept and Final Site Plan approval.” Zia Shadows now attempts
to controvert its own factual assertions, pointing to trial testimony from City
witnesses regarding the form and content of the application. But our review of a
summary-judgment ruling is limited to the record before the district court and the
                                           8
(providing that where “a Final Site Plan has been submitted along with the Concept

Plan,” the final site plans “shall be submitted along with the Concept Plan to the City

Council for final consideration”). The Community Development Department, by

contrast, had authority only to provide a nonbinding recommendation on the

disposition of the PUD application. Id. § 38-49(D)(a), (D)(c)(1). Thus, while section

38-73 vested the Community Development Department with the authority to

determine whether the PUD would satisfy Zia Shadows’ compliance plan

requirement, section 38-49 vested the City Council with the authority to determine if

the PUD application should be granted.

      Further, our review of section 38-49 demonstrates that the City has significant

discretion in approving, denying, or modifying a PUD application. At the outset,

section 38-49 states that a PUD “is a zoning district change and is not permitted by

right in any zoning district.” Id. § 38-49(D)(a). It provides that a PUD “may be

approved” only if the City makes a number of subjective findings, including that the

PUD “conforms to the intent, goals, objectives, policies, and standards of all City

plans and codes” and that the proposed uses are “appropriate to the character of the

neighborhood and will have a positive aesthetic effect on the neighborhood in which

the PUD will be located.” Id. § 38-49(D)(c)(2). Last, this section directs that “the

City Council may impose conditions and require compliance with such other


materials brought to the district court’s attention by the parties. Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). We therefore may not consider the
trial testimony Zia Shadows has identified on appeal, and Zia Shadows is bound to
the factual representations made in its summary-judgment briefing.
                                           9
standards as deemed necessary,” that “[f]inal approval may be granted subject to

compliance with such conditions,” and that any such conditions “shall be made part

of the terms under which the PUD is granted.” Id. § 38-49(C), (D)(c)(2) (setting forth

procedures for review of a concept plan); see also id. § 38-49(D)(d)(1) (providing

that, with some exceptions, “[t]he review procedures for the Final Site Plan shall be

the same as for the Concept Plan”). The broad discretion afforded the City by this

ordinance forecloses Zia Shadows’ claim of entitlement to approval of its PUD

application.3 Zia Shadows therefore lacked a protectable property interest in the

timely and unconditional approval of that application.

      Zia Shadows has failed to demonstrate that it had a constitutionally protectable

property interest in either its special-use permit or the approval of its PUD

application. As a result, Zia Shadows due-process claim fails because it cannot

demonstrate the City deprived it of such an interest. We therefore affirm the district

court’s grant of summary judgment to the City on Zia Shadows’ due-process claim.

2. Equal Protection

      We next consider Zia Shadows’ equal-protection claim. “Equal protection

jurisprudence has traditionally been concerned with governmental action that

disproportionally burdens certain classes of citizens.” Kan. Penn Gaming, LLC v.

      3
         In its reply brief, Zia Shadows argues that if the City does in fact have this
degree of discretion, then its zoning laws are unconstitutionally vague. But
arguments not raised in the opening brief are waived, City of Colo. Springs v. Solis,
589 F.3d 1121, 1135 n.5 (10th Cir. 2009), and we therefore do not generally consider
issues raised for the first time in a reply brief, Reedy v. Werholtz, 660 F.3d 1270,
1274 (10th Cir. 2011). Because Zia Shadows did not challenge the Las Cruces
municipal code for vagueness in its opening brief, that challenge is waived.
                                           10
Collins, 656 F.3d 1210, 1215–16 (10th Cir. 2011). Zia Shadows does not, however,

allege discrimination based on membership in any protected class; instead, it claims

the City intentionally treated it differently from similarly situated mobile-home parks

without any rational basis for doing so. This sort of equal-protection claim is

commonly called a “class of one” claim. Id. at 1216 (10th Cir. 2011) (citing Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). “The paradigmatic

‘class of one’ case, . . . is one in which a public official, with no conceivable basis for

his action other than spite or some other improper motive (improper because

unrelated to his public duties), comes down hard on a hapless private citizen.” Id.

Such claims are difficult to prove, as the plaintiff bears a “substantial burden” to

show that “others similarly situated in all material respects were treated differently

and that there is no objectively reasonable basis for the defendant’s action.” Id. at

1217 (internal quotation marks omitted). “It is therefore imperative for the class-of-

one plaintiff to provide a specific and detailed account of the nature of the preferred

treatment of the favored class.” Jennings v. City of Stillwater, 383 F.3d 1199, 1214

(10th Cir. 2004).

       Zia Shadows identifies three areas in which it believes it was treated

differently from other mobile-home parks: first, that Zia Shadows was the only

mobile-home park that was required to comply with the new zoning ordinance;

second, that Zia Shadows’ PUD application was subjected to greater financial

scrutiny and conditions on approval of its PUD than other applicants; and third, that



                                            11
the new owner of the mobile-home park previously operated by Zia Shadows has not

been required to comply with the requirements the City imposed on Zia Shadows.

      Zia Shadows’ first two theories fail because the crux of those arguments is that

the City failed to demonstrate that others were subjected to the same requirements as

Zia Shadows. Zia Shadows argues that “the City’s witnesses could not identify a

single mobile home park that had come into compliance with the new Zoning

Ordinance” and “[t]he City cannot point to any other [PUD] applicant who was

treated as were appellants.” With these arguments, Zia Shadows attempts to put the

burden on the City to prove its actions were legitimate. But in a class-of-one case, the

burden lies not on the government defendant but on the plaintiff, who must prove

actual differential treatment in materially similar situations. Jennings, 383 F.3d at

1215. Zia Shadows has not cited any evidence to show it was similarly situated to

any mobile-home parks that were not required to comply with the new zoning

ordinances. Nor has Zia Shadows identified any evidence showing that similarly

situated PUD applicants received more favorable treatment and were not subjected to

a similar level of financial scrutiny.4 Because Zia Shadows has not met its burden to

show actual differential treatment in materially similar situations, the district court

properly rejected these aspects of Zia Shadows’ class-of-one claim.


      4
        To support its claim that no other PUD applicant was required to disclose
financial information, Zia Shadows cited below and on appeal to deposition
testimony from a City employee. But Zia Shadows failed to include the relevant
pages of the transcript with its summary-judgment briefing. That portion of the
transcript is therefore not in the summary-judgment record, and we cannot consider it
on appeal.
                                           12
         Zia Shadows comes closest to meeting its burden on its third theory: that it

was treated worse than the current owners of its property, whose situation presumably

resembles Zia Shadows’ in many ways. However, its assertion appears to rest entirely

on the following two paragraphs from an affidavit5 by Zia Shadows’ owner, Alex

Garth:

                31. The current proprietor of the Property has not had to comply
         with any of the requirements which the City imposed on plaintiffs in this
         case.

                32. For example, the current proprietor of the Property keeps the
         South gates locked, which I was required to keep open so that emergency
         vehicles could have access to the Property. The current proprietor of the
         Property also is allowed to place metal (reflective) roofs and/or metal sided
         mobile homes on the Property without having to obtain a change in zoning
         or a variance.

This evidence is inadequate to support a class-of-one claim because it fails to

meaningfully address the City’s actions or the reasons for the City’s differential

treatment. To prevail, Zia Shadows must show both that it was treated differently and that

the City has no objectively reasonable basis for its actions under the circumstances. Kan.

Penn Gaming, 656 F.3d at 1217. While Mr. Garth avers that the current proprietor “keeps

the South gates locked” and “is allowed to” have mobile homes with metal sides or roofs,

it is unclear whether he is asserting the City explicitly gave the new owner permission it

had denied Zia Shadows, or merely that the new owner has not been punished for flouting

the rules. And even if we assume the City affirmatively gave such permission to the new

         5
        In its appellate briefs, Zia Shadows cited to trial testimony in support of this
argument. Because that evidence was not before the district court when it granted
summary judgment, it is not relevant to our decision here. We instead consider only
the evidence put forth by Zia Shadows in its summary-judgment briefing.
                                              13
owner, Zia Shadows has put forth no evidence regarding the circumstances under which

such permission was given. Without some evidence on this point, there is no way to

evaluate the reasonableness of the City’s actions. The absence of such evidence is fatal to

Zia Shadows’ claim of disparate treatment under a class-of-one theory, and the district

court properly granted summary judgment to the City.

  B. The District Court Did Not Abuse Its Discretion in Modifying the Retaliation
                       Instruction After the Close of Evidence.

       With respect to the trial on its retaliation claim, Zia Shadows first argues that

the district court erred by modifying the jury instruction on Zia Shadows’ First

Amendment retaliation claim after the close of evidence. “We review a district

court’s decision to give a particular jury instruction for abuse of discretion, but we

review de novo legal objections to the jury instructions.” Lederman v. Frontier Fire

Prot., Inc., 685 F.3d 1151, 1154 (10th Cir. 2012) (internal quotation marks omitted).

An instructional error mandates reversal, however, “only if the error is determined to

have been prejudicial, based on a review of the record as a whole.” Sherouse v.

Ratchner, 573 F.3d 1055, 1059 (10th Cir. 2009).

       Before the trial, the parties sought to finalize the jury instruction explaining

the elements of Zia Shadows’ retaliation claim. Zia Shadows proposed an instruction,

modeled after our decision in Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000), that

included the following element: “To prevail on a claim for retaliation for exercise of

First Amendment rights, plaintiffs must prove that . . . adverse action was taken

against them which would deter a person of ordinary firmness from continuing to


                                            14
engage in [constitutionally protected] conduct.” The City objected to this version of

the instruction and proposed a new version requiring only that “the Defendant took

action against the plaintiff”—not that the action taken “would deter a person of

ordinary firmness.” The parties eventually stipulated to the City’s version of the

instruction and submitted it to the court.

       After the close of evidence, the City changed its mind. The City argued, in

effect, that Zia Shadows’ original statement of the law had been correct. It asked the

court to replace the stipulated language with a requirement that the City’s action

against Zia Shadows “would chill the person [of ordinary] firmness from continuing

to engage in [constitutionally protected] activity.”

       Zia Shadows objected. It pointed out that the erroneous instruction was the

City’s idea and that the City had stipulated to it. Zia Shadows further claimed it had

presented its case on the assumption that it would not have to prove any chilling

effect: “So all along I’ve relied on [the City’s stipulation] in my questioning . . . .

And so now I’m in a situation where I can see the defendant saying, you never heard

any testimony about chilling ordinary firmness . . . .” Zia Shadows accordingly

argued the district court should leave the stipulated instruction in place or, at a

minimum, prohibit the City from taking advantage of the new instruction in its

closing argument. The district court overruled Zia Shadows’ objections, and the City

briefly contended in closing argument that the City’s actions would not have

“chill[ed] a person of ordinary firmness.”



                                             15
       While this sequence of events is unusual, we see no grounds for reversal. Zia

Shadows has not challenged the district court’s ruling permitting the City to argue a

lack of chilling effect in closing. Rather, Zia Shadows challenges only the district

court’s decision to give the instruction containing that requirement. And Zia Shadows

does not claim the instruction, as given, was legally incorrect. Indeed, the law in this

circuit is clear: a First Amendment retaliation claim requires a showing that the

defendant’s actions “caused the plaintiff to suffer an injury that would chill a person

of ordinary firmness from continuing to engage in [constitutionally protected]

activity.” Worrell, 219 F.3d at 1212 (internal quotation marks omitted).

       Instead, Zia Shadows relies on two procedural arguments: first, the district

court should have enforced the City’s stipulation; and second, the district court

should not have allowed the City to change its legal position after the close of

evidence. Neither argument has merit.

       With respect to the first argument, we cannot agree the district court was

required to enforce the City’s stipulation on the elements of Zia Shadows’ retaliation

claim. “[I]t is well-settled that a court is not bound by stipulations of the parties as to

questions of law.” Koch v. U.S., Dep’t of Interior, 47 F.3d 1015, 1018 (10th Cir.

1995) (quoting Dimidowich v. Bell & Howell, 803 F.2d 1473, 1477 n.1 (9th Cir.

1986)). The jury instructions on the elements of a claim are a statement of the law,

and mandating that a court enforce a stipulation to an erroneous or incomplete jury

instruction would effectively require the court to commit legal error. The case law

Zia Shadows relies on says nothing to the contrary—rather than requiring trial courts

                                            16
to honor stipulations of law, it holds merely that a party, having stipulated to a

particular jury instruction at trial, may not challenge that instruction on appeal.

EarthGrains Baking Cos. v. Sycamore Family Bakery, Inc., 573 F. App’x 676, 681

(10th Cir. 2014) (unpublished). The district court was therefore not bound by the

City’s stipulation to the original jury instruction. Instead, it was obligated to correctly

instruct the jury on the law.

       Zia Shadows’ second argument is that the City should not have been allowed

to change its position after Zia Shadows had relied on it. But the legal basis for this

argument is murky. Zia Shadows’ brief claims that the City “did not timely object to

the jury instruction,” but that is not correct. The City objected precisely when the

rules required: at the hearing where the court “must give the parties an opportunity to

object on the record and out of the jury’s hearing before the instructions and [closing]

arguments are delivered.” Fed. R. Civ. P. 51(b)(2); id. 51(c)(2) (providing that an

objection raised at that time “is timely”). And while Zia Shadows contended at oral

argument that this claim could be framed in terms of estoppel, it is not clear what

species of estoppel—if any—might apply in this situation.

       Regardless of its legal theory, Zia Shadows must show prejudice to justify

reversal on the basis of an instructional error. Sherouse, 573 F.3d at 1059. And it has

failed to do so here. Zia Shadows’ only effort to show the requisite harm is its

assertion that, had it known it would need to demonstrate a chilling effect, it would

have “prosecuted [its] case differently by asking different questions that addressed

the elements of a First Amendment retaliation claim set forth in the jury instruction.”

                                            17
But Zia Shadows does not say what sort of testimony it would have elicited, or from

whom. Moreover, because the jury was to consider the chilling effect of the City’s

actions by an objective standard—that is, whether the City’s action would chill a

person of ordinary firmness, not whether it, in fact, chilled the plaintiffs’ conduct—it

is unclear what additional testimony Zia Shadows could have elicited to establish this

element. Zia Shadows’ failure to demonstrate prejudice is fatal to this claim.

       The district court was not bound by the City’s stipulation to an erroneous jury

instruction, and Zia Shadows has failed to demonstrate prejudice stemming from the

district court’s correction of the jury instruction after the close of evidence. We

therefore conclude the district court did not abuse its discretion in instructing the

jury, and Zia Shadows is not entitled to a new trial on this basis.

 C. The District Court Did Not Err in Refusing to Strike a City Employee From the
                                        Jury.

       Zia Shadows’ most challenging argument is that a City employee who sat on

the jury should have been deemed impliedly biased and struck for cause. Generally,

we review a district court’s refusal to strike a juror for cause under an abuse-of-

discretion standard, as “the district court is in the best position to observe the juror

and to make a first-hand evaluation of his ability to fair.” Getter v. Wal-Mart Stores,

Inc., 66 F.3d 1119, 1122 (10th Cir. 1995). We therefore afford great deference to a

district court’s judgment in evaluating a juror’s actual bias, as that judgment must be

“based upon determinations of demeanor and credibility that are peculiarly within a

trial judge’s province.” United States v. Powell, 226 F.3d 1181, 1188 (10th Cir.


                                            18
2000). Whether a juror’s bias should be implied from the circumstances is,

conversely, a legal question, “dependent on an objective evaluation of the challenged

juror’s experiences and their relation to the case being tried.” Id. (citation and

internal quotation marks omitted); accord Burton v. Johnson, 948 F.2d 1150, 1158

(10th Cir. 1991) (“Whether a juror’s bias may be implied from the circumstances is a

question of law for this court.”). We accordingly review de novo the question of

implied bias. Powell, 226 F.3d at 1188. Once a juror is found to be actually or

impliedly biased, the district court abuses its discretion if it denies a challenge to that

juror for cause.6 Getter, 66 F.3d at 1122.

       Zia Shadows argues that juror #8 (the Juror) should have been struck from the

jury because he is a City employee. After the jury was empaneled, Zia Shadows

moved to strike the Juror for cause, arguing “it would be difficult for him to rule

against his employer. He may have repercussions at the job later.” The district court

denied Zia Shadows’ for-cause challenge. Zia Shadows argues the district court

abused its discretion in refusing to strike the Juror for implied bias.7




       6
         Some of our cases have been less than meticulous in articulating the standard
of review on the specific issue of implied bias. However, to the extent later cases
suggest something less than de novo review on this issue, they must yield to Burton
v. Johnson, 948 F.2d 1150 (10th Cir. 1991), in which this court adopted a standard of
de novo review for implied-bias questions that has not been repudiated. See Hiller v.
Okla. ex rel. Used Motor Vehicle & Parts Comm’n, 327 F.3d 1247, 1251 (10th Cir.
2003) (“To the extent [two panel decisions] are in conflict, . . . we are obligated to
follow the earlier panel decision over the later one.”).
       7
         Because Zia Shadows has not challenged the Juror for actual bias, we do not
address that branch of juror bias.
                                             19
      “[A] finding of implied bias is appropriate where the juror, although she

believes that she can be impartial, is so closely connected to the circumstances at

issue in the trial that bias is presumed.” Powell, 226 F.3d at 1188 (internal quotation

marks omitted). This court has held that the implied-bias doctrine “is not to be lightly

invoked, but must be reserved for those extreme and exceptional circumstances that

leave serious question whether the trial court subjected [a party] to manifestly unjust

procedures resulting in a miscarriage of justice.” Id. (emphasis omitted). We

accordingly require claims of implied bias to meet a “high threshold.” Id. A litigant

can meet this threshold by showing a juror has “a direct financial interest in the

trial’s outcome.” Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1468 (10th Cir.

1994). Such a disqualifying interest might exist where “a prospective juror was a

stockholder in or an employee of a corporation that was a party to the suit,” Getter,

66 F.3d at 1122, but we have declined to find such an interest where the financial

interest was “more remote,” Vasey, 29 F.3d at 1468 (holding that district court did

not abuse its discretion in declining to excuse for cause a juror who was employed by

a company that had a consulting contract with the defendant).

      In Getter v. Wal-Mart Stores, Inc., we concluded the district court erred by

refusing to excuse a juror who held stock in the defendant corporation and whose

wife worked for the defendant. 66 F.3d 1119, 1123 (10th Cir. 1995). We reasoned that

“[d]ue to his stock ownership and his wife’s employment, [the juror’s] financial well-

being was to some extent dependent upon [the] defendant’s [financial well-being].”

Id. Accordingly, we held that the relationship between the juror and the defendant

                                           20
was “precisely the type of relationship that requires the district court to presume bias

and dismiss the prospective juror for cause.” Id. However, because the plaintiff used

a peremptory challenge to remove the juror, we ultimately concluded the error was

harmless. Id.

      Zia Shadows contends that our decisions in Getter and Vasey control the

outcome here, mandating a conclusion that the Juror was impliedly biased by virtue

of his employment with the City. In particular, Zia Shadows relies on the following

passage from Vasey:

      [C]ourts have presumed bias in extraordinary situations where a
      prospective juror has had a direct financial interest in the trial’s outcome,
      or where the prospective juror was an employee of a party to a lawsuit. In
      these situations, the relationship between the prospective juror and a party
      to the lawsuit points so sharply to bias in the particular juror that even the
      juror’s own assertions of impartiality must be discounted in ruling on a
      challenge for cause.

29 F.3d at 1468 (internal quotation marks, brackets, and citations omitted) (second

emphasis added). But Getter and Vasey addressed circumstances under which a

juror’s relationship to a private corporation may give rise to a claim of implied bias.

The Juror here, by contrast, was employed by a government entity. And our review of

the relevant case law persuades us that there exists no categorical bar on a

government employee serving as a juror in a case where the government employer is

a party. Thus, irrespective of whether Vasey would have mandated disqualification of

a privately employed juror under these circumstances, we conclude the district court




                                            21
did not err in declining to disqualify the government-employed juror here for implied

bias.8

         The United States Supreme Court first addressed this issue in the context of a

criminal case brought by the federal government in Crawford v. United States, 212

U.S. 183 (1909). There, the Supreme Court held that a druggist in the District of

Columbia who received compensation from the government for providing postal

services—and who was therefore technically a government employee—was

disqualified from sitting on the jury in a case brought by the United States for a

conspiracy to defraud the government. Id. at 192, 196–97. Although the defendant

initially sought to disqualify the juror on the basis of a municipal code, the Court

looked beyond the statutory claim to consider whether the juror was qualified to

serve under the common law. Id. at 195. Relying, in part, on Blackstone’s

Commentaries, the Court concluded that under the common law, “one is not a

competent juror in a case if he is master, servant, steward, counselor, or attorney of

either party.” Id. at 195. Applying this rule expansively, the Court held that the

district court erred in overruling the defendant’s challenge to the juror. Id. at 197.

         The Supreme Court revisited the issue of government-employee bias in United

States v. Wood, 299 U.S. 123 (1936). In response to Crawford, Congress had enacted

a statute explicitly permitting employees of the United States in various capacities to

serve as jurors in the District of Columbia. Id. at 132–33. The defendant, who had


         8
        Because the case before us involves only a government employer, we do not
address the scope of the implied-bias doctrine as it relates to private employers.
                                            22
been convicted of criminal charges by a jury that included two government

employees, argued the statute permitting their service deprived him of his right to an

impartial jury under the Sixth Amendment. Id. The Court, however, rejected

defendant’s contention that the Constitution requires “absolute disqualification in

criminal cases of a person employed by the government,” and it affirmed his

conviction. Id. at 134, 151.

      In reaching its conclusion, the Court first determined “there was no settled

practice under the English law establishing an absolute disqualification of

governmental employees to serve as jurors in criminal cases,” and thus such a

practice could not “be treated as embedded in the Sixth Amendment.” Id. at 137. And

with respect to the law as it developed in the colonies, the Court concluded that

Blackstone’s discussion of the issue was limited to “masters and servants of private

parties” and made no mention of “the practice in crown cases with respect to servants

of the crown.” Id. at 138, 139. The Court therefore declined to hold that “the

common-law rule was different in the colonies from that in England” or that the

Congress and States which proposed and ratified the Sixth Amendment “undertook to

establish an absolute disqualification of all governmental employees beyond the

control of the congressional power.” Id. at 139.

      The Court also distinguished and called into question the validity of the rule in

Crawford. Id. at 139–41. It observed that the Crawford Court “was not aided by a

careful or comprehensive presentation of the English precedents” and had relied on

Blackstone without recognizing the “rule which had obtained in England with respect

                                          23
to the qualifications of servants of the crown to serve as jurors in crown cases.” Id. at

140–41. After considering the common-law authorities, the Court concluded there

was no “settled rule of the common law prior to the adoption of the Sixth

Amendment that the mere fact of a governmental employment, unrelated to the

particular issues or circumstances of a criminal prosecution, created an absolute

disqualification to serve as a juror in a criminal case.” Id. at 141. The Court

accordingly held it was “unable to accept the ruling in the Crawford Case as

determinative” with respect to the question of whether government employment

mandated such disqualification. Id. “The ultimate question,” the Court concluded, is

whether “an absolute disqualification of governmental employees to serve as jurors in

criminal cases is essential to the impartiality of the jury.” Id. at 147–48. The Court

answered that question in the negative, stating “the imputation of bias simply by

virtue of governmental employment, without regard to any actual partiality growing

out of the nature and circumstances of particular cases, rests on an assumption

without any rational foundation.”9 Id. at 149.


      9
         The dissent bases its call for a more expansive view of the implied-bias
doctrine, in part, on the “general tendency” of jurors to “look somewhat more
favorably . . . upon the side of the person or corporation that employs them.” See
Crawford v. United States, 212 U.S. 183, 196 (1909). And the dissent finds evidence
of this “general tendency” in the voir dire transcript in this case. When the district
court asked, “[S]ince you work for the City, do you think everything the City does is
absolutely correct?” the Juror responded, “Well, it’s—being my employers, I would
say yes.” But the implied-bias doctrine asks whether an average person in the juror’s
position would be partial, not whether the juror was, in fact, partial to one side.
United States v. Powell, 226 F.3d 1181, 1188 (10th Cir. 2000). Thus, such testimony
betrays, if anything, actual bias on the part of the Juror, and the actual-bias inquiry is
“based upon determinations of demeanor and credibility that are peculiarly within a
                                           24
      Thus, Wood establishes that, as a general rule, government employment carries

with it no blanket assumption of implied bias in criminal cases. See also Baker v.

Hudspeth, 129 F.2d 779, 783 (10th Cir. 1942) (“It is now well established . . . by

modern authority that a fair and impartial trial does not necessarily demand the

exclusion of governmental employees from [a criminal] jury.”). Important to our

analysis here, Wood also recognized that the common-law rule was the same in

criminal and civil actions. 299 U.S. at 138–39, 140. And this court has applied Wood

in a civil condemnation action brought by the federal government to conclude that a

“prospective juror was not disqualified per se, merely because he was a government

employee.” United States v. Chapman, 158 F.2d 417, 419 (10th Cir. 1947); accord

D.C. Transit Sys., Inc. v. Slingland, 266 F.2d 465, 469 (D.C. Cir. 1959) (holding that

Wood “must be applied to civil as well as to criminal cases”). Wood therefore

controls here.

      In light of Wood, we cannot conclude that government employment, standing

alone, bars a prospective juror from serving in a case involving the government

employer. But in reaching this conclusion, we by no means hold that a government

employee could never be found impliedly biased on the basis of that employment.


trial judge’s province.” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)).
In response to the district court’s further questioning on this issue, the Juror stated
that he did not think city governments always make correct decisions, that he could
be fair to both sides, and that he would not favor the City even in light of Zia
Shadows’ request for a “large sum” in damages. The district court was apparently
satisfied the Juror harbored no actual bias, and Zia Shadows has not raised an actual-
bias challenge on appeal. Thus, the Juror’s voir dire statements do not meaningfully
illuminate the implied-bias issue before us on appeal.
                                          25
For example, this court has frequently referred to Justice O’Connor’s observation that

a juror who is “an actual employee of the prosecuting agency” might present the sort

of “extreme situation” that would call for an implication of bias. See, e.g., Skaggs v.

Otis Elevator Co., 164 F.3d 511, 517 (10th Cir. 1998) (quoting Smith v. Phillips, 455

U.S. 209, 222 (1982) (O’Connor, J., concurring)); Gonzales v. Thomas, 99 F.3d 978,

987 (10th Cir. 1996) (same). Such circumstances may also exist where, like in

Crawford, the potential juror is an employee of the very agency or department whose

conduct or interests are at issue in the case. See 212 U.S. at 189, 192. Or, through the

use of careful follow-up questions, counsel seeking to disqualify a juror may be able

to establish actual bias. See Ted A. Donner & Richard Gabriel, Jury Selection

Strategy and Science, § 32.1 (3d ed. 2015–16). The record here, however

demonstrates that the Juror maintained City swimming pools—a position completely

unrelated to the City’s zoning and planning activities at issue in the case. And, as the

district court observed, Zia Shadows declined to question the Juror to uncover

whether his employment with the City would have any effect on his ability to render

an impartial verdict. An implication of bias on the basis of the Juror’s government

employment alone is therefore not appropriate here.

      Zia Shadows does raise one argument that circumstances beyond the Juror’s

mere employment with the City should result in an implication of bias: it contends

the Juror “may have repercussions at the job later” and would “certainly fear that at

some point, the City would take retaliatory actions against him.” But the Supreme

Court in Wood rejected as “far-fetched and chimerical” the suggestion that “an

                                           26
employee of the government may be apprehensive of the termination of his

employment” in retaliation for deciding a case against his government employer. 299

U.S. at 150. Absent “reference to some special and exceptional case,” the Court

concluded this theory “belongs in the category of theoretic or imaginary interests—

remote and insignificant.” 299 U.S. at 150 (internal quotation marks omitted). We

therefore cannot agree with Zia Shadows that the Juror should have been disqualified

based on a hypothetical fear of retaliation from his government employer.

      Ultimately, Zia Shadows has failed to meet the “high threshold” to show that

the Juror was “so closely connected to the circumstances at issue in the trial” that we

must question the objectivity of a reasonable juror in his situation. Powell, 226 F.3d

at 1188. The district court therefore did not err in concluding the Juror was not

impliedly biased. Absent a showing of bias, the district court did not abuse its

discretion in denying Zia Shadows’ motion to strike the Juror.

 D. The Jury’s Verdict on Zia Shadows’ Retaliation Claim Is Not Against the Clear
                               Weight of the Evidence.

      Last, Zia Shadows argues it is entitled to a new trial because “the weight of the

evidence demonstrates that judgment should have been entered in favor of

appellants.” When a party challenges the jury’s verdict on appeal, “our review is

limited to determining whether the record—viewed in the light most favorable to the

prevailing party—contains substantial evidence to support the jury’s decision.”

Bangert Bros. Const. Co. v. Kiewit W. Co., 310 F.3d 1278, 1292 (10th Cir. 2002).

“Substantial evidence is something less than the weight of the evidence, and is


                                          27
defined as such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion, even if different conclusions also might be supported by the

evidence.” Id. Thus, we may reverse a jury’s verdict only “if the evidence points but

one way and is not susceptible to any reasonable inferences supporting” the verdict.

Abuan v. Level 3 Commc’ns, Inc., 353 F.3d 1158, 1168 (10th Cir. 2003).

      A plaintiff must prove three elements to establish a First Amendment

retaliation claim:

      (1) that the plaintiff was engaged in constitutionally protected activity;
      (2) that the defendant’s actions caused the plaintiff to suffer an injury
      that would chill a person of ordinary firmness from continuing to
      engage in that activity; and (3) that the defendant’s adverse action was
      substantially motivated as a response to the plaintiff's exercise of
      constitutionally protected conduct.

Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (internal quotation marks

omitted). The district court instructed the jury that Zia Shadows had engaged in

constitutionally protected activity and that the first element was therefore proven.

      We readily conclude the jury’s verdict here was supported by adequate

evidence. Zia Shadows’ briefing on this issue amounts to a list of supposedly

unjustified actions the City took and the supposedly suspicious circumstances in

which the City took them. Although Zia Shadows contends “the evidence was

overwhelming that the City’s actions were motivated by appellants’ speech,” every

point of evidence Zia Shadows cites is susceptible to various interpretations,

supporting Zia Shadows’ case only if viewed in a very particular light. But the jury

was not obliged to view the evidence in that light, and, given our standard of review,


                                          28
we are required to take a contrary approach of viewing the evidence in the light most

favorable to the verdict. Bangert Bros., 310 F.3d at 1292.

      Moreover, the evidence Zia Shadows has put forward to show the City’s

improper motive, if believed, demonstrates that City officials took adverse action

against Zia Shadows due to “personal animosity” toward its owners. But Zia

Shadows must show more than an improper purpose behind the City’s actions; it

must show that the City’s actions were specifically motivated by Zia Shadows’

criticism of the City. Worrell, 219 F.3d at 1212. Zia Shadows has identified no

“overwhelming” evidence to support such a claim.

      It is possible that, in handling Zia Shadows’ PUD application, the City violated

its own zoning procedures or New Mexico law. It might even be possible, one could

imagine, that some nefarious purpose was at work: a personal animus against Zia

Shadows’ owners or a conspiracy to profit from their financial ruin. But even if all

this were true, it does not establish a First Amendment retaliation claim unless the

City’s acts were substantially motivated by Zia Shadows’ protected speech. And on

that issue the record evidence in this case does not “point[] but one way” such that a

reasonable jury would necessarily find that Zia Shadows’ speech substantially

motivated the City to act as it did. Abuan, 353 F.3d at 1168. Accordingly, we cannot

conclude the verdict was contrary to the evidence.

                                IV. CONCLUSION

      Zia Shadows failed to demonstrate that the City deprived it of a

constitutionally protected property interest or that the City treated Zia Shadows
                                          29
differently from similarly situated mobile-home parks. The district court thus did not

err in granting summary judgment to the City on Zia Shadows’ due-process and

equal-protection claims. Neither did the district court err in instructing the jury or in

declining to strike a City employee from the jury on the basis of implied bias. And

the jury’s verdict against Zia Shadows on its First Amendment retaliation claim is

supported by substantial evidence. We accordingly AFFIRM the district court’s

judgment.




                                            30
15-2009, Zia Shadows, LLC v. City of Las Cruces
McKAY, Circuit Judge, dissenting in part:


       I join the majority’s opinion except as to the city employee’s bias. As to that issue,

I do not suggest that ruling for Las Cruces violates any binding precedent. Neither this

court nor the Supreme Court has decided whether municipal employees may be jurors in

cases involving their employers, and, consequently, we have some flexibility to reach an

appropriate answer to the question. Nevertheless I respectfully cannot agree with the

answer the majority has reached.

       I begin my analysis with the traditional common-law rule requiring us to impute

bias to the parties’ employees. As the Supreme Court has held, this rule does not apply to

the employees of the federal government. But the reasons for the traditional rule apply

with full force in this case, while none of the Supreme Court’s reasons for exempting

federal employees have any relevance to municipal corporations like Las Cruces. We

should therefore impute bias to Las Cruces’ employee and reverse the district court for

allowing him to serve on the jury.


                                       DISCUSSION

       In Crawford v. United States, the Supreme Court endorsed the ancient common-

law rule that “one is not a competent juror in a case if he is master, servant, steward,

counselor, or attorney of either party. In such case a juror may be challenged for

principal cause as an absolute disqualification of the juror.” 212 U.S. 183, 195 (1909)
(citing 3 William Blackstone, Commentaries on the Laws of England 363 (Thomas M.

Cooley & Andrew James DeWitt, eds., 4th ed. 1899)).

       As the majority points out, the Supreme Court later acknowledged an exception to

the traditional rule: at common law, servants of the crown were not categorically

disqualified from serving as jurors in crown cases. The Supreme Court applied this

exception to “Government employees,” but in doing so it did not question the traditional

rule. Dennis v. United States, 339 U.S. 162, 164–67 (1950). So far as I can tell,

Crawford is still good law where the “masters and servants of private parties” are

concerned. United States v. Wood, 299 U.S. 123, 138 (1936).

       Certainly the Tenth Circuit has never questioned Crawford. Instead, we have

acknowledged that “courts have presumed bias in extraordinary situations,” such as

“where a prospective juror . . . was an employee of a party to a lawsuit. In these

situations, the relationship between the prospective juror and a party to the lawsuit points

so sharply to bias” that the juror should be disqualified. Vasey v. Martin Marietta Corp.,

29 F.3d 1460, 1468 (10th Cir. 1994) (brackets and citations omitted) (citing Francone v.

S. Pac. Co., 145 F.2d 732, 733 (5th Cir. 1944) (applying the traditional rule)).

       Nor should we question Crawford now. Even if we had authority to overturn

Supreme Court precedent, this is not a doctrine whose only justification is that “so it was

laid down in the time of Henry IV.” Oliver Wendell Holmes, Jr., The Path of the Law, 10

Harv. L. Rev. 457, 469 (1897). Instead its purposes remain as vital as they have always

been. As the Crawford Court wrote,



                                             -2-
      Modern methods of doing business . . . have not wrought any change in
      human nature itself, and therefore have not lessened or altered the general
      tendency among men . . . to look somewhat more favorably . . . upon the
      side of the person or corporation that employs them, rather than upon the
      other side.
Crawford, 212 U.S. at 196. This “general tendency” was acknowledged in this very case,

by the very city employee whose jury service is being challenged:

       THE COURT: . . . [S]ince you work for the City, do you think everything the City
       does is absolutely correct?

       JUROR: Well, it’s -- being my employers, I would say yes.

(Appellants’ App. at 250.)

       But, important as such general tendencies are, they are not the only reason for the

common-law rule. There is also simple self-interest. Crawford justified its holding in

part by pointing out the consequences the employee–juror might face if his employer lost

the case. “[H]is employment was valuable to him,” the Crawford Court acknowledged,

and even if “cessation of that employment would [not] actually follow a verdict, . . . [i]t is

enough that it might possibly be the case.” Id. at 196–97. “[T]he juror ought not to be

permitted to occupy a position of that nature” and thus put the trial’s fairness—or the

juror’s livelihood—at risk. Id at 197.

       Again, the Tenth Circuit has recognized the wisdom of this reasoning. As we

wrote in Vasey v. Martin Marietta Corp., “courts have presumed bias in extraordinary

situations where a prospective juror has had a direct financial interest in the trial’s

outcome.” 29 F.3d at 1468. We applied this principle in Getter v. Wal-Mart, where we

concluded that a juror was impliedly biased because his “financial well-being was to

some extent dependent upon [the] defendant’s.” Getter v. Wal-Mart Stores, Inc., 66 F.3d

                                              -3-
1119, 1122 (10th Cir. 1995). Such financial dependence, we held, was “precisely the type

of relationship that requires the district court to presume bias and dismiss the prospective

juror for cause.” Id.

       Admittedly, Vasey did not actually involve parties’ employees and thus did not

actually hold that parties’ employees must be disqualified. But Vasey plainly assumed

that it did not need to make such a holding—that a rule disqualifying parties’ employees

already existed. It said so explicitly, it cited a case explaining the traditional rule, and it

chose not to disqualify a juror in part because, although he had some economic

relationship to a party, he was not actually the party’s employee. See Vasey, 29 F.3d at

1467–68.

       Likewise, Getter did not involve a party’s employee and therefore did not directly

hold that parties’ employees must be disqualified; rather, Getter specifically held only

that a particular juror was disqualified because he owned Wal-Mart shares and was

married to a Wal-Mart employee. But the whole thrust of Getter’s reasoning supports the

traditional rule: Getter held that the juror needed to be disqualified because his “financial

well-being” was “dependent” on Wal-Mart. 66 F.3d at 1122. I believe this reasoning

would apply with no less force to a Wal-Mart employee than to the shareholding spouse

of a Wal-Mart employee.

       Two circuit courts, including this one, have considered whether Getter disqualified

jurors who were not shareholders but merely employees of a party. See Hatfield v. Wal-

Mart Stores, Inc., 335 F. App’x 796, 801–02 (10th Cir. 2009); Caterpillar, Inc. v. Sturman



                                               -4-
Indus., 387 F.3d 1358, 1372–73 (Fed. Cir. 2004). Both said yes, and I believe they are

right.

         Of the two relationships at stake in Getter—the juror’s shareholding and the

employment of the juror’s spouse—shareholding gave the juror only the most negligible

financial interest in the verdict. Wal-Mart’s total outstanding stock is worth hundreds of

billions of dollars. Even a juror who owned ten million dollars of Wal-Mart shares would

bear only a few thousandths of a percent of any verdict against the company. But a Wal-

Mart employee, like the spouse of a Wal-Mart employee, could lose his livelihood if Wal-

Mart chose to retaliate.1 Crawford was right: no juror should be put in that position.

         Turning then to the actual issue before us, I note that this issue—unlike the

implied bias of employees of private parties—is open to fair debate. I ultimately reach a

different conclusion than the majority, and I thus respectfully dissent from the majority’s

holding.

         Under our precedents, this case requires us to resolve the following question: does

a municipal employee have more in common with a private employee, who would be

disqualified, or with a federal employee, who would not? Based on my reading of United

States v. Wood, the case in which the Supreme Court recognized the federal-employee

exception, I conclude that municipal employees and federal employees have little in




         1
        Admittedly, such retaliation may be illegal. But the distant and uncertain
prospect of winning a retaliation suit would be cold comfort to someone facing
termination.

                                              -5-
common at all. Thus, I conclude that the Crawford rule must be applied to municipal

employees, disqualifying them from jury service in cases involving their employers.

       The Wood Court alluded to six reasons for exempting federal employees from the

common-law rule. None of them are relevant here.

       1. Common-law tradition. First, Wood relied on a traditional exception to the

common-law rule: at common law, “servants of the crown” could be jurors in “crown

cases.” 299 U.S. at 139. It was only logical to extend this exception to employees of the

federal government, since the federal government is the American institution most similar

to the British sovereign.

       But municipal corporations are not “the crown” and never have been. In

Blackstone’s day as now, they were merely creatures of the crown—self-governing

societies established by a sovereign, but not sovereigns themselves, and lacking any

natural claim to the sovereign’s special privileges.2 Thus Wood’s historical reasoning,

though perfectly sensible as applied to federal employees, has nothing to do with

municipal governments.

       2. Difficulty finding jurors. Second, Wood explained the reason behind the

traditional exception for “crown servant[s]”: “from the extensive variety of the king’s

connections with his subjects through tenures and offices, if favour to him was to prevail

as an exception to a juror, it might lead to an infinitude of objections, and so operate as a


       2
        According to tradition, the first municipal corporation was created in 1439, when
a young Henry VI incorporated Kingston-upon-Hull. 1 Eugene McQuillin, A Treatise on
the Law of Municipal Corporations § 51, at 109 (1911).

                                             -6-
serious obstruction to justice in suits in which he is a party.” Id. at 137.3 Wood noted a

similar problem in the District of Columbia, where disqualifying federal employees had

“narrow[ed] the eligible list of jurors . . . to the point where it sometimes became difficult

to secure jurors possessing the necessary qualifications.” Id. at 133. Allowing federal

employees to be jurors served “a public need.” Id. at 148.

       There is no “public need” here. No municipality in this circuit is so large as to

employ more than a small fraction of the potential jurors in its district.

       3. Legislative judgment. Third, Wood dealt with an Act of Congress. Because

courts were having difficulty finding jurors in the District of Columbia, Congress passed

a statute allowing federal employees to serve on D.C. juries even when the federal

government was a party. Id. at 130–32. This statute, the Wood Court wrote, was

“tantamount to a legislative declaration that the [disqualification of federal employees]

was artificial and not necessary to secure impartiality.” Id. at 148–49.

       No Act of Congress concerns us here. No legislative body has concluded that

disqualifying municipal employees is “artificial” or “not necessary to secure

impartiality.”

       4. Differences between civil and criminal cases. Fourth, Wood was a criminal

case and relied in part on differences between criminal and civil cases. The Wood Court


       3
         Here the Supreme Court quotes a comment on Coke’s Institutes by Francis
Hargrave, who produced annotated editions of the Institutes in the late eighteenth and
early nineteenth centuries. The full quote can be found at 1 Edward Coke, The First Part
of the Institutes of the Laws of England, book 2, ch. 12, § 234 n.4 [§ 156.a. n.4] (Francis
Hargrave & Charles Butler eds., 19th ed. 1832).

                                             -7-
asked, “Why should it be assumed that a juror, merely because of employment by the

Government, would be biased against the accused? In criminal prosecutions the

Government is acting simply as the instrument of the public in enforcing penal laws for

the protection of society.” Id. at 149. In other words, although the federal government is

technically a party in federal criminal prosecutions, we assume it seeks justice rather than

its own self-interest. Because the government’s self-interest was not at stake, according

to Wood, its employees would not be tempted to prejudge the case for their employer’s

benefit.

       This reasoning has no relevance to municipal employees in a civil case. Las

Cruces is being sued for millions of dollars, it wishes to keep its millions of dollars, and

its employees might have any number of reasons for sharing its wish.

       5. Implausibility of retaliation. Fifth, Wood rejected the suggestion “that an

employee of the Government may be apprehensive of the termination of his employment”

if the government loses its case. Id. at 150. The Court thought that a federal employee

would fear for his job only in “some special and exceptional case,” and thus the

possibility of bias arising from such a fear was “remote” and “insignificant.” Id.

       Today’s majority quotes this language as if it applied universally to all

governments—as if governments, merely by virtue of being governments, were unlikely

to retaliate against employees who displeased them. But merely glancing at Wood’s facts

suggests otherwise. In Wood, the jurors were clerks in the Weather Bureau, the Federal

Emergency Administration, the Treasury, and the Navy Yard. Id. at 131. Why would the

Weather Bureau care if the government lost a petit larceny case? Why would it even

                                             -8-
know? The idea that agencies like these would take revenge on behalf of the D.C. police

is indeed “far-fetched and chimerical.” Id. at 150.

       But in our case the juror was employed by the same municipal corporation that

was being sued; his livelihood was at the mercy of the same city council that would have

to satisfy any judgment. I do not know whether Las Cruces would have retaliated, but I

am certain there are cities that would. Moreover, even if a city would not in fact retaliate,

its employee might reasonably fear retaliation in a way a federal employee would not.

Even if “cessation of [the juror’s] employment would [not] actually follow a verdict, . . .

[i]t is enough that it might possibly be the case.” Crawford, 212 U.S. at 196–97. No one

facing such a risk should be allowed to sit on a jury. Id.

       6. Public respect for the judicial process. Finally, the Wood Court rejected the

argument that allowing federal employees to serve as jurors would “impair the public

respect in which the processes of the law should be held.” 299 U.S. at 150. It did so

because it was so hard to imagine that the jurors’ employment would improperly

influence their verdict.

       In contrast, it is not hard at all to imagine that a municipal employee’s verdict

might be influenced by fear of retaliation or by concern for his employer’s financial well-

being. Further, while I agree that no one would doubt the Wood jurors’ impartiality based

solely on their employment, I believe many reasonable people would wonder whether Zia

Shadows got a fair trial. And as Crawford put it,

       To maintain [the system of trial by jury] in the respect and affection of the
       citizens of this country it is requisite that the jurors chosen should not only


                                             -9-
       in fact be fair and impartial, but that they should not occupy such relation to
       either side as to lead, on that account, to any doubt on that subject.

212 U.S. at 195.

       In short, all of the reasons for disqualifying parties’ employees are relevant today:

an employee’s subconscious tendencies to favor his employer, to which our juror frankly

admitted; his financial dependence on his employer; his possible fear of retaliation;4 and

the need to preserve public confidence in the jury process by disqualifying not only jurors

who are actually biased, but even those who reasonably look biased.

       In contrast, none of the Supreme Court’s reasons for exempting federal employees

have any force here. The common-law exception Wood relied on does not apply.

Disqualifying municipal employees will not lead to a juror shortage. Congress has not

spoken, and Las Cruces’ self-interest is most certainly at stake. Finally, because the

possibility of retaliation is much more than “chimerical,” the idea that city employees do

not fear retaliation—simply because they work for the government—is itself “far-

fetched.” A municipal employee should never be allowed to decide a civil case in which

her employer is a party.


                                     CONCLUSION

       While the reasons for disqualifying parties’ employees have not changed since

Crawford, one thing has changed: it has become much more expensive to obtain a jury

       4
         Indeed the likelihood of retaliation might actually be greater for a municipal
employee than for the employee of a private corporation like Wal-Mart: verdicts against
private corporations do not lead to tax increases, or to the public outrage they sometimes
provoke.

                                            -10-
verdict. It has thus become a much weightier decision to vacate a jury verdict—a

decision that inflicts immense cost and inconvenience on parties and jurors, a decision

that appellate courts instinctively prefer to avoid unless a real injustice has been done.

       This instinct, conscious or not, might make an appeals court uncomfortable with

clear implied-bias rules. Implied bias rulings are reviewed without deference, and if the

trial court seats an impliedly-biased juror over a party’s objection, the appellate court

must reverse even if the juror was not actually biased, and even if the verdict is plainly

correct. The only way to avoid reversal is to avoid finding implied bias.

       Thus, the instinct to avoid reversal tempts appeals courts to make the implied bias

doctrine flexible and context-sensitive rather than specific and defined—in short, to turn

appellate review of implied bias rulings into a second search for actual bias. With such

flexibility, the appeals court can choose to find bias only when it is confident, based on

the specific facts of the case, that it should reverse.5

       This temptation toward flexibility should be resisted. The whole reason for the

implied bias doctrine is that certain categories of individuals, due to their relationships

with the parties or other “extraordinary situations,” cannot serve on a jury without calling

       5
         For example, under the Ninth Circuit’s implied bias doctrine, an accused bank
robber may not be convicted by jurors who are employed at another branch of the bank
he is accused of robbing. United States v. Allsup, 566 F.2d 68, 71–72 (9th Cir. 1977).
But a court applying that doctrine concluded that it did not disqualify a maintenance
supervisor employed by the company whose gas station had been robbed—on the
grounds that gas station robberies are not as frightening to maintenance supervisors as
bank robberies are to employees at a bank branch. Caviness v. Runnels, No. CIV S-04-
2629 MCE JFM P., 2007 WL 1454279, at *10–11 (E.D. Cal. May 17, 2007). This sort of
fact-intensive, contextual inquiry should be left to trial courts examining jurors for actual
bias, and then reviewed only deferentially thereafter.

                                              -11-
the verdict’s fairness into question. Vasey, 29 F.3d at 1468. A specific, defined implied

bias rule allows a trial court to decide, quickly and easily, whether a juror belongs to such

a category. In contrast, a flexible, context-dependent rule requires extensive fact-

finding—the facts needed to prove a real likelihood of retaliation against a specific juror,

for example, are not fundamentally different from the facts needed to prove a whole

retaliation claim. And even after this extensive fact-finding, fact-finding totally out of

place in the hurried context of voir dire, a trial court would have little certainty whether it

faced an “extraordinary” situation or just an unusual one.

       A flexible implied bias doctrine thus does little to protect the fairness of the trial in

advance, when jurors can be dismissed without invalidating a verdict. Then, on appeal, a

flexible implied bias doctrine invites courts to issue context-sensitive affirmances, based

on the totality of the evidence, even in those few “extraordinary situations” where a

reasonable person could not help but question the juror’s impartiality. Such context-

sensitive affirmances, with their necessarily vague holdings, cannot possibly assuage the

doubts of the public or of the losing party. Rather the opposite is true.

       An employment relationship with a party is an extraordinary situation requiring

exclusion of a juror for implied bias. This court has said so. The Supreme Court has said

so. I would thus remand for a new trial.




                                             -12-
