         RECOMMENDED FOR FULL-TEXT PUBLICATION
              Pursuant to Sixth Circuit Rule 206
     ELECTRONIC CITATION: 2000 FED App. 0019P (6th Cir.)
                 File Name: 00a0019p.06


UNITED STATES COURT OF APPEALS
                FOR THE SIXTH CIRCUIT
                  _________________


                                 ;
                                  
 SARAH GABLE,
                                  
          Plaintiff-Appellee,
                                  
                                  
                                       No. 98-3819
           v.
                                  
                                   >
 RONALD G. LEWIS; KENNETH 
                                  
      Defendants-Appellants, 
 T. WOEHRMYER,

                                  
                                  
                                  
 ROGER HANNAY, et al.,
                  Defendants. 
                                 1
      Appeal from the United States District Court
     for the Southern District of Ohio at Cincinnati.
     No. 96-00973—Susan J. Dlott, District Judge.
                Argued: November 3, 1999
            Decided and Filed: January 13, 2000
     Before: MERRITT and NELSON, Circuit Judges;
                COHN,* District Judge.




 *
  The Honorable Avern Cohn, United States District Judge for the
Eastern District of Michigan, sitting by designation.


                               1
2     Gable v. Lewis, et al.                       No. 98-3819

                     _________________
                          COUNSEL
ARGUED: Todd R. Marti, OFFICE OF THE ATTORNEY
GENERAL, CORRECTIONS LITIGATION SECTION,
Columbus, Ohio, for Appellants. Alphonse A. Gerhardstein,
LAUFMAN, RAUH & GERHARDSTEIN, Cincinnati, Ohio,
for Appellee. ON BRIEF: Jeffery W. Clark, Allen P. Adler,
O F FICE OF THE ATTORNEY G E N E R A L,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellants. Alphonse A. Gerhardstein, LAUFMAN,
RAUH & GERHARDSTEIN, Cincinnati, Ohio, for Appellee.
  MERRITT, J., delivered the opinion of the court, in which
COHN, D. J., joined. NELSON, J. (pp. 7-9), delivered a
separate dissenting opinion.
                     _________________
                         OPINION
                     _________________
   MERRITT, Circuit Judge. In this § 1983 case, plaintiff
Sara Gable, who operates an automobile towing company in
Lebanon, Ohio, claimed that the defendant, Ronald Lewis, an
official of the Ohio Highway Patrol, retaliated against her by
removing her from the patrol’s towing referral list because
she had filed with the state agency an official written
complaint of sex discrimination in the allocation of the
patrol’s automobile towing business. Her retaliation claim
was brought as a violation of the petition clause of the First
Amendment which bars government from “abridging . . . the
right of the people . . . to petition the government for a redress
of grievances.” After a three-day trial, the jury found that the
defendant was guilty of violating the petition clause when he
removed her from the towing list in retaliation for filing her
discrimination complaint. The jury awarded damages of
$55,000. On appeal, we take as true these facts as found by
the jury.
No. 98-3819                        Gable v. Lewis, et al.      3

   The defendant presents two issues of law on appeal: First,
he argues that the petition clause is inapplicable to her
grievance filed with the patrol because “only speech
concerning matters of ‘public concern’ is protected from
retaliatory conduct” by the petition clause and that plaintiff’s
discrimination complaint is personal to her and is not such a
matter of “public concern,” as required by Connick v. Myers,
461 U.S. 138, 145-48 (1983). Second, he argues that the
defendant is entitled to qualified immunity because the
“constitutional right [asserted] must be clearly established in
a particularized sense” under Anderson v. Creighton, 483 U.S.
635, 640 (1987), in order for a state official to be held
personally liable in damages for a constitutional tort and that
the constitutional right claimed in this case under the petition
clause was not “clearly established” at the time of the
retaliatory conduct.
   Although historically the right of “petition” was confined
to seeking legislative or judicial relief, see Higginson, A Short
History of the Right to Petition Government for the Redress
of Grievances, 96 YALE L. J. 142 (1986), and although some
scholars insist that the scope of the petition clause should
remain so limited through judicial interpretation, Strauss,
Public Employees’ Freedom of Association, 61 FORDHAM L.
REV.473, 486 (1992), the Supreme Court has held to the
contrary. In California Transport v. Trucking Unlimited, 404
U.S. 508, 510 (1972), the Court, after explaining the
philosophy underlying the petition clause, said that the “same
philosophy governs the approach of citizens or groups of
them to administrative agencies,” and concluded that “the
right to petition extends to all departments of the
Government.” In extending the right of petition to
administrative agencies, the Court stated “that it would be
destructive of rights of association and of petition to hold that
groups with common interests may not . . . use the channels
and procedures of state and federal agencies and courts to
advocate their causes and points of view respecting resolution
of their business and economic interests viz-a-viz their
competitors.” Id. at 510-11. The petition clause is
analytically distinct from, although related to, the free speech
4    Gable v. Lewis, et al.                       No. 98-3819      No. 98-3819                       Gable v. Lewis, et al.     9

clause; and the California Transport case clearly establishes        One relationship “analogous to an employment
that the submission of complaints and criticisms to                relationship,” as it happens, is the relationship between a
nonlegislative and nonjudicial public agencies like a police       police force and a towing company to which the police force
department constitutes petitioning activity protected by the       has historically referred business. See White Plains Towing
petition clause.                                                   Corp. v. Patterson, 991 F.2d 1049 (2d Cir. 1993), where the
                                                                   Second Circuit assumed for First Amendment analysis
   The question before us is whether we should read into the       purposes that the assignment of work to a towing company by
petition clause the “public concern” test established in           the New York State Police “was tantamount to employment.”
Connick v. Myers, 461 U.S. 138, 145-48 (1983), a case              Id. at 1059.
brought by a public employee under the speech clause of the
First Amendment. In Connick the Court said that a                     The towing company that brought the White Plains suit
governmental agency may discipline or impose punishment            could not recover damages for an allegedly retaliatory
against a public employee for speech if the sanctioned speech      termination of its referral arrangement, the Second Circuit
is a matter of “private” concern rather than “public concern.”     held, absent a showing that the “speech” for which the
The Court made it clear that the reason for this distinction       company claimed it had been delisted – primarily demands for
between “private” and “public” matters is to enable                an increase in towing referrals – rose to the dignity of
governmental agencies, like private employers, to maintain         “comments upon a matter of public concern.” Id. It was
order, discipline and civility in the workplace and to allow       partly because the communications at issue flunked the
supervisory officials to discipline employees for offensive,       public-concern test that a judgment entered in favor of the
insulting, or disruptive speech unrelated to expressions of        plaintiff towing company was reversed by the Second Circuit.
opinion about policy matters. On the other hand, the Court
sought to retain the right of all citizens, including public         We must, of course, give defendants the benefit of the
employees, to comment and express their views on matters of        qualified immunity doctrine in any case where the doctrine is
governmental policy. In Connick, the Court did not apply the       properly raised and to which it properly applies. The doctrine
“public concern” test to the petition clause, nor has it decided   applies, as I understand it, with respect to any legal issue on
since Connick a case raising that point. Nor has the Court         which there is no controlling Supreme Court or circuit
applied the test to citizens who are not governmental              precedent and on which “officers of reasonable competence
employees.                                                         could disagree. . . .” See Malley v. Briggs, 475 U.S. 335, 341
                                                                   (1986). The underlying issue in the case at bar – whether the
   We believe that the law is clearly established that the         First Amendment prohibits termination of a business
“public concern test” does not apply to the petitioning activity   relationship in retaliation for the assertion of a private
in the instant case. First, in the California Transport case the   grievance – is one on which there has heretofore been no
Supreme Court included within the scope of the petition            controlling Supreme Court or Sixth Circuit authority and as
clause complaints “respecting resolution of their [petitioners’]   to which federal judges of reasonable competence could
business and economic interests . . . .” 404 U.S. at 511.          disagree and in fact have disagreed. Because I do not think
Thus, the petition clause itself is not generally limited to       we ought to require Highway Patrol officers to be more
matters of “public concern” as described in the Connick case       prescient than Article III judges when it comes to divining
but includes the petitioner’s private business interests.          future developments in the law, I would recognize the
Second, the reason for the “public concern” test in Connick —      defendants’ right to qualified immunity here.
to maintain order and avoid disruption in the governmental
8    Gable v. Lewis, et al.                      No. 98-3819      No. 98-3819                        Gable v. Lewis, et al.     5

late as March of 1997 – some seven months after Ms. Gable’s       workplace — does not apply in this case because the plaintiff
name was removed from the towing referral list – a judge of       was not a governmental employee subject to the discipline of
this court was able to maintain without qualification that “the   a governmental employer. She was simply a citizen offering
right to petition is limited to matters of public concern.” See   services to a state agency. Since the reason for the test is
Valot v. Southeast Local School District Board of Education,      missing in the present case — maintaining order in the
107 F.3d 1220, 1226 (6th Cir. 1997) (lead opinion by Engel,       governmental workplace — the test should not be applied
J.). Judge Engel marshalled a number of cases in support of       here, and the district court was correct in not including in its
this point of view, and noted only one case – San Filippo v.      instructions to the jury a limitation on liability based on the
Bongiovanni, 30 F.3d 424, 440-43 (3d Cir. 1995) – to the          Connick public concern test. Third, we find no authority in
contrary. Id.                                                     the Sixth Circuit limiting petitioning activity by public
                                                                  employees to matters of “public concern” either generally or
  It is true that the other members of the Valot panel (Merritt   in the governmental employment context. In Valot v.
and Ryan, JJ.) disagreed with Judge Engel. Judge Ryan             Southeast Local School District Board of Education, 107 F.3d
reached the same result by a different analytical route, see      1220 (1997), one judge believed that the petition clause
Valot, 107 F.3d at 1230-31 (Ryan, J., concurring), and Judge      should be so limited in actions by public employees against
Merritt, in dissent, said that he would follow San Filippo.       their employers, but two other judges of the court did not
Valot, 107 F.3d at 1234 (Merritt, J., dissenting). But if         agree. See also San Filippo v. Bongiovanni, 30 F.3d 424 (3rd
reasonable members of this court could disagree in March of       Cir. 1995)(holding that the “public concern” test does not
1997 over the applicability of the public-concern test in the     apply to petitioning public employees), discussed and
Petition Clause context, how can we say that the law was so       analyzed extensively in Shea, San Filippo v. Bongiovanni:
clearly established seven months earlier that there was no        The Public Concern Criteria and the Scope of the Modern
room at that time for disagreement among reasonable               Petition Right, 48 VAND. L. REV.1697 (1995), and Thaddeus-
Highway Patrol officials?                                         X v. Blatter, 175 F.3d 378, 392 (6th Cir. 1997, en
                                                                  banc)(holding that a prisoner’s right to petition the
  I must acknowledge, to be sure, that the Valot plaintiffs –     government for redress of grievances is not subject to the
untenured substitute bus drivers – were sometime employees        public concern limitation imposed in free speech actions
of the public body that stood accused of having retaliated        involving public employees). Thus there is no basis in our
against them, while Ms. Gable was not an employee of the          First Amendment jurisprudence for applying Connick’s public
Ohio State Highway Patrol. But as the Court of Appeals for        concern test to petitioning activity by a private business
the Fifth Circuit observed in Blackburn v. City of Marshall,      woman who is simply supplying services to a governmental
42 F.3d 925, 932 (5th Cir. 1995), “[a]lthough the                 agency as an independent contractor.
Pickering/Connick [public-concern] test arose in the context
of public employment, courts have not strictly cabined its          The fact that there is a judge somewhere, as imagined by
application. . . . Courts have extended [its] analysis to cases   our dissenting colleague, who in this case might conclude
involving relationships analogous to an employment                erroneously that a private citizen like plaintiff, who tows cars
relationship.” See, in this connection, Copsey v. Swearingen,     for a living and receives no compensation from the state, is
36 F.3d 1336, 1344 (5th Cir. 1994) (a blind operator of a         “tantamount” or “analogous” to a government employee, does
concession stand in a public building “was more like a public     not persuade us. After many years watching judges, we agree
employee than an ordinary citizen,” so the public-concern test    that a judge or judges somewhere might so conclude. But
had relevance to his situation).                                  when such a ruling would be clearly contrary to a Supreme
6     Gable v. Lewis, et al.                        No. 98-3819       No. 98-3819                            Gable v. Lewis, et al.         7

Court case like California Transport, supra, and entirely                                    _________________
inconsistent with the Supreme Court’s orderly-public-
workplace reasoning in the Connick case, we should not be                                        DISSENT
dissuaded by the error of such a hypothetical judge. This is                                 _________________
especially true when we recognize that government retaliation
for filing a petition violates the literal language of the Petition     DAVID A. NELSON, Circuit Judge, dissenting. With the
Clause which forbids “abridging . . . the right of the people         publication of the court’s opinion in this case, it becomes a
. . . to petition the government for a redress of grievances.”        settled rule of law in the Sixth Circuit that even where a
Most cases can be imagined to be “tantamount” or                      plaintiff cannot meet the “public concern” test of Connick v.
“analogous” to some other case. We should not split hairs             Myers, 461 U.S. 138 (1983), government officials may not
when the conduct literally violates the language of the               withdraw a business advantage in retaliation for the plaintiff’s
Petition Clause and when the Supreme Court seems to be                exercise of the First Amendment right to petition for a redress
clear on the subject.                                                 of grievances. It is unlikely, in my opinion, that the Supreme
                                                                      Court would disagree with our holding on this point.
  For these reasons, we conclude that the law interpreting the
petition clause protects the plaintiff in filing a complaint with       I part company with my colleagues on the panel, however,
the Ohio Highway Patrol claiming sex discrimination, and              when it comes to the proposition that the non-applicability of
this law was clearly established prior to the retaliatory             Connick’s public-concern test in Petition Clause cases had
conduct found by the jury in the present case. We also                been clearly established by July of 1996, the point at which
conclude that the law was clearly established that the “public        the name of towing company operator Sara Gable was
concern” test does not apply to plaintiff’s petitioning activity.     removed from the Ohio State Highway Patrol’s referral list.1
Hence the doctrine of official immunity is inapplicable, and          And if the rule announced today was not clearly established
the jury verdict should not be set aside for either of the two        in July of 1996 – in other words, if the state of the law was
reasons advanced by the defendant.                                    such that officials of reasonable competence could disagree as
                                                                      to the applicability of the public-concern test in a Petition
 Accordingly, the judgment of the district court is                   Clause situation – the defendants are entitled to qualified
AFFIRMED.                                                             immunity.
                                                                        I am not prepared to say that the non-applicability of the
                                                                      public-concern test in Petition Clause cases was clearly
                                                                      established in mid-1996. To begin with, neither the Supreme
                                                                      Court nor the Sixth Circuit had ever decided the question.
                                                                      The answer given by this court today was not clearly
                                                                      foreshadowed by the Supreme Court’s opinion in California
                                                                      Transport v. Trucking Unlimited, 404 U.S. 508 (1972), so as


                                                                       1
                                                                         Ms. Gable failed to prove that her sex was a motivating factor in her
                                                                      removal from the list, but we must take it as given, the jury having so
                                                                      found, that the filing of her complaint of sex discrimination was a
                                                                      motivating factor insofar as defendant Lewis was concerned.
