                 UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                              No. 91-6207



CHRISTOPHER JAMES MYLETT,
                                                Plaintiff-Appellant,


                                versus


DAVID M. MULLICAN, ET AL.,
                                                Defendants-Appellees.




          Appeal from the United States District Court
               for the Southern District of Texas

                       (     May 28, 1993   )


Before POLITZ, Chief Judge, GARWOOD and DAVIS, Circuit Judges.

POLITZ, Chief Judge:

     This appeal by Christopher James Mylett poses first amendment

free speech and fourteenth amendment due process questions.      For

the reasons assigned we affirm the judgment of the district court.



                              Background

     Mylett was a police officer for the City of Pasadena, Texas.

He was assigned to canine duty and, with permission, frequently

moonlighted at school functions with his drug sniffing dog, Duke,

to locate and apprehend drug violators.     When he arrested a fellow
officer's      son     and   insisted   on       pursuing   criminal   distribution

charges he claims that forces within the department lined up

against him.         Tensions escalated when fellow officers made him the

subject of what Mylett claims were baseless criminal charges.1

          Without first pursuing grievance procedures or even informing

his       superiors,    Mylett   responded        by   filing   suit   against   the

officers. The police chief, David Mullican, initiated disciplinary

action against Mylett for not advising his superiors before filing

suit and transferred him to desk duty pending resolution of the

disciplinary proceedings.          Mylett was instructed that during this

pendency he was not to take the matter outside of the department,

to either the mayor or the media.

          For reasons that remain unclear, one day a local television

news crew arrived unannounced at Mylett's home seeking permission

to film Duke.           Mylett testified that he initially refused the

request but eventually acquiesced. Mylett did not speak during the

course of the filming and pointedly explained that he did not

intend to convey any message by allowing the filming.                     The news

segment ran that evening and dealt exclusively with the police

department's suspension of its use of Mylett's dog and the amusing

fact that Duke was represented by a lawyer.                  The story ended with

the reporter placing a microphone in front of Duke, posing a

question; Duke cooperatively barked a response.

          The next day a former city council member intervened on

      1
          The charges stemmed from Mylett's supposed refusal to pay
for belt buckles.


                                             2
Mylett's behalf during a meeting between the mayor and Mullican.

Mylett was indefinitely suspended for disobeying a direct order.

That       decision   was   reviewed   and   upheld   by   the   Civil   Service

Commission.       Mylett unsuccessfully appealed to all three levels of

the state courts of Texas.

       Mylett then filed the instant action against Mullican, three

fellow police officers, the members and director of the Civil

Service Commission, and seven members of the city council, invoking

42 U.S.C. §§ 1983 and 1985, alleging conspiracy and violation of

his free speech and due process rights.

       The claims against the municipality and Mullican were tried to

a jury; the other defendants were dismissed before trial.                 At the

close of the evidence the court found Mylett's conduct to be

protected only to the extent it dealt with police department policy

and left to the jury the decision whether the firing was motivated

by this aspect of his appearance.            Both sides objected to the form

of the jury submission.2         Although the jury found Mylett was not

fired for exercising free speech rights, the court mooted that

finding and, consequently, annulled any concerns with respect to

its submission, when it later ruled that Mylett's conduct was not

       2
          Mylett objected to the form of the submission because it
required the jury to determine whether some part of his speech was
protected before it could answer the question related to causation.
See Wilson v. University of Texas Health Center, 973 F.2d 1263 (5th
Cir. 1992) (holding that question whether employee speech is
protected and concomitant determination whether it touches a matter
of public concern are for the court and to be answered with
reference to the form, context, and content of the claimed speech
as revealed by the record as a whole), cert. denied sub nom. Hurst
v. Wilson, 113 S.Ct. 1644 (1993).


                                        3
entitled to first amendment protection.

       Mylett   timely    appeals,      contending   that     his   speech   was

protected as a matter of law, and that the court erred in its

submissions to the jury, and in dismissing the claims against the

officers and Civil Service Commissioners.



                                   Analysis

       A.    "Speech" on a matter of public concern.

       In   order   to   prevail   on   his   free   speech    claims,   Mylett

initially bore a bifurcated burden.3             He had to show that he

engaged in speech, or at least expressive activity, and that his

"speech" was protected by the first amendment.4                He then had to

       3
          Dennison v. County of Frederick, Va., 921 F.2d 50 (4th
Cir. 1990), cert. denied, 111 S.Ct. 2828 (1991).

   4
          Obviously, not all speech receives such protection, e.g.,
Frohwerk v. United States, 249 U.S. 204 (1919) ("[T]he First
Amendment while prohibiting legislation against free speech as such
cannot have been, and obviously was not, intended to give immunity
for every possible use of language . . . ."), indeed, not all forms
of speech receive the full panoply of protections available to
others. E.g., Capital Broadcasting Co. v. Mitchell, 333 F.Supp.
582 (D.D.C. 1971), aff'd without op. sub nom. Capital Broadcasting
Co. v. Acting Attorney General, 405 U.S. 1000 (1972) (commercial
speech).

          Speech by a public employee, as an employee, on a matter
purely of private concern falls outside the protective radius of
the first amendment. Wilson, supra; Caine v. Hardy, 943 F.2d 1406
(1991) (en banc), cert. denied, 112 S.Ct. 1474 (1992). Moreover,
in the case of otherwise protected speech by a public employee, an
additional question arises:    whether the employer's legitimate
interest in promoting efficiency in public services outweighs the
individual's interest in free speech. Connick v. Myers, 461 U.S.
138, 150 (1983); Pickering v. Board of Educ., 391 U.S. 563, 568
(1968). The employer bears the burden of production with respect
to this last question. Moore v. City of Kilgore, Tex., 877 F.2d
364 (5th Cir.), cert. denied, 493 U.S. 1003 (1989).

                                         4
establish    that   his   exercise   of   free   speech   rights   was    "a

substantial factor" in his firing5 and resulted in damages.6             The

threshold questions are purely legal and unless they are answered

in Mylett's favor the jury is not presented the substantial factor

and damages questions.7

     Our review of the record persuades beyond peradventure that

Mylett did not engage in speech, much less protected speech.             We

review that issue de novo8 and need look no further than Mylett's

testimony that he had no desire or intent to communicate with

anyone and that he came out of his house and allowed the news crew

to film his dog only because his wife had become agitated by the

presence of the camera crew and curious on-lookers.9



    5
          Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274 (1977); Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir.
1991).

     6
            Carey v. Piphus, 435 U.S. 247 (1978).

     7
            Coughlin.

     8
          Fyfe v. Curlee, 902 F.2d 401 (5th Cir.), cert. denied,
498 U.S. 940 (1990).

     9
            On cross-examination he testified as follows:

     Q:     Mr. Mylett you were intending to speak out
            that day about the situation regarding you and
            your dog?      You participated with the TV
            station for the purpose of doing that didn't
            you?
     A:     I appeared on TV to get the TV people off my
            property and allow them to get what they
            wanted.

                                     5
     It is obvious that Chief Mullican opted to keep Mylett on a

very short leash while the disciplinary proceedings were pending.

Reasonable   minds    could     easily     find    that    his   firing   was

inappropriate to the point of being draconian.             Having concluded,

however, that no protected speech was implicated, our inquiry on

this point must end.10

     B.   Claims against members and employees of the Civil
          Service Commission.

     Mylett sued Charles Beckman, Leon Phillips, and Wayne Taylor,

all members of the Pasadena Civil Service Commission, in their

individual and official capacities.         He asserts that Mullican met

with each member before the hearing to persuade them to uphold the

termination decision.    He also asserts that Bill Storey, Director

of the Civil Service Commission, intentionally deprived him of the

testimony of a witness by causing a subpoena to issue with an

incorrect date.    Mylett sought compensatory and punitive damages

from the three Commissioners and Storey.            The district court, as

noted, dismissed     those    claims   before     trial.    We   review   that


     Q:   Is that really the only reason why you did it,
          Mr. Mylett?
     A:   To get rid of them?
     Q:   Yes, sir.
     A:   Yeah. It was pretty much creating a crowd in
          front of my home and making my wife upset.

     10
          Connick, 461 U.S. at 146 ("Perhaps the government
employer's dismissal of the worker may not be fair, but ordinary
dismissals from government service" are not properly the subject of
federal judicial review.); Coughlin, supra. We stress that our
review is limited to those questions raised below and asserted as
error in this court, in this instance, the impairment of free
speech rights.


                                       6
decision    de   novo.       We   must    first      examine    the     Commission's

structure.

      1.    The statutory framework

      Chapter 143 of the Texas Local Government Code authorizes

municipalities with populations of 10,000 or more to establish a

Civil Service Commission to supervise police and fire fighter

hiring, promotion, and retention.11              The City of Pasadena adopted

Chapter 143 by general election.                The Commission is composed of

three persons, appointed by the chief executive of the municipality

and confirmed by the governing body.12               The members serve staggered

terms and    can be removed only for misconduct.                        They may be

suspended only if charged with a crime of moral turpitude and no

one   may   be   appointed    who   has       held   public    office    within   the

preceding three years.

      The Commission has the authority to adopt its own rules of

procedure and rules governing the hiring of police officers.13                     It

must adopt rules that prescribe removal for cause which comply with

the grounds for removal listed in Chapter 143, including "violation

of an applicable . . . police department rule or special order."14

The Commission must publish its rules and make them available on

      11
            Tex. Loc. Gov't Code Ann. § 143.002 (Vernon 1988).

      12
            Id. at § 143.006.

      13
            Id. at § 143.008.

      14
            Id. at § 143.051(12).


                                          7
demand.

     Of particular present relevance, the Commission is vested with

adjudicative powers being, inter alia, solely responsible for

determining fact questions pertaining to claims of misconduct.   In

so doing, the Commission is clothed with all of the procedural

trappings typically associated with a common-law finder of fact.

It may compel and hear relevant testimony,15 administer oaths with

the same force as a magistrate judge,16 cause the deposition of

witnesses in accordance with procedures applicable in federal

district court,17 make findings of fact,18 and conclude whether, in

a given case, discipline, including termination, is in order.19 Any

judgment rendered by the Commission is subject to de novo appellate

review in the state district court.20   In essence, its composition

and functions are very similar to those of a federal agency




     15
          Id. at § 143.009(b).

     16
          Id.

     17
          Id.

     18
          Id. at § 143.053.

     19
          Id. at § 143.010(g); Connor v. Klevenhagen, 726 S.W.2d
205 (Tex.App. -- Houston [14th Dist.] 1987, writ ref'd n.r.e.)
(finding the Civil Service Commission a quasi-judicial body and
also finding no need to join it as a party to an appeal).

     20
          Tex. Loc. Gov't Code Ann. § 143.015 (Vernon 1988).


                                 8
delegated both rulemaking and adjudicative powers.21

     Chapter 143 directs the Commission's fact-finding process.

For instance, the chief of police must inform the officer in

writing of the factual basis for any disciplinary action and must

inform the Commission within 120 hours of the disciplining of any

officer.22   The Commission must thereafter hold a hearing.23   During

this hearing the Commission may not answer pure questions of law24

and may only consider those factual issues detailed in the chief's

original letter;25 no amendments are allowed.     The Commission may

consider only the evidence presented at the hearing26 and must

render its decision in open session within 30 days of the officer's




     21
          See James R. Eissinger, Judicial Review of Findings of
Fact in Contested Cases Under APTRA, 42 Baylor L.Rev. 1 (1989)
(noting Texas courts review judgments of the Commission for
substantial evidence despite statutory direction for trial de
novo); Firemen's & Policemen's Civ. Serv. Comm'n v. Brinkmeyer, 662
S.W.2d 953 (Tex. 1984) (discussing limited nature of review of
police officer's appeal from adverse Commission ruling and
reviewing it under traditional principles of administrative law).

     22
             Tex. Loc. Gov't Code Ann. § 143.052 (Vernon 1988).

     23
             Id. at § 143.053.

     24
          City of Wichita Falls v. Harris, 532 S.W.2d 653
(Tex.Civ.App. -- Fort Worth 1975, writ ref'd n.r.e.).

     25
             Tex. Loc. Gov't Code Ann. § 143.053 (Vernon 1988).

     26
             Id. at § 143.010.


                                   9
notice of appeal.27   The officer has a right to be represented by

counsel at this hearing, to cross-examine witnesses,28 and to have

witnesses placed under "the rule."29   Should the officer prevail on

appeal attorney's fees may be awarded.30

     Of particular note, Chapter 143 safeguards against the very

abuse alleged here, ex parte contact.31    Section 143.102 prohibits

such contact and provides for automatic judgment in favor of the

non-offending party. Mylett did not secure this relief in his trip

through the entire Texas court system. We must now resolve whether

quasi-judicial immunity precludes advancing those same claims under

federal law.

     2.   Judicial and quasi-judicial immunity

     Section 1983 of 42 U.S.C. embraces traditional notions of

immunity;32 so does section 1985.33   It is generally understood that

     27
          Id. at § 143.053. The Commission must make specific,
written findings of fact, signed by each Commissioner and kept on
file for public inspection. Id. at § 143.011.

    28
          Richardson v. City of Pasadena, 513 S.W.2d 1 (Tex. 1974).

     29
          Id. at § 143.010.   See Tex.R.Civ.Evid. 614.

     30
          Tex. Loc. Gov't Code Ann. § 143.015(c) (Vernon 1988).

     31
          See also Richardson, supra (applying identical
requirement pursuant to due process guarantee).

     32
          Wyatt v. Cole, 112 S.Ct. 1827 (1992).

     33
          Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), cert.
denied, 383 U.S. 913 (1966).

                                 10
a judge, and those similarly situated, have absolute immunity for

judicial acts.34     The role and duties of a "judge" cannot always be

neatly compartmentalized; not all acts by one bearing that title

are judicial,35 nor are all judicial acts deserving of the immunity

granted exclusively to judges.36

     Advances   in    dispute   resolution   have   spread   adjudicative

responsibilities more widely37 while the judiciary lends itself at

the same time to a broader range of responsibilities traditionally

considered executive or legislative in nature.38         Mindful of the

priority of substance over form, we must resolve whether Texas

Civil Service Commissioners are entitled to absolute immunity

against charges of corruption stemming from their decision in a

termination proceeding.     That question is res nova for this court.



     34
          Pierson v. Ray, 386 U.S. 547 (1967).

    35
          E.g., Forrester v. White, 484 U.S. 219 (1988); Harper v.
Merckle, 638 F.2d 848 (5th Cir.), cert. denied, 454 U.S. 816
(1981).

    36
          E.g., Mullis v. United States Bankruptcy Court, 828 F.2d
1385, 1390 (9th Cir. 1987), cert. denied, 486 U.S. 1040 (1988)
("Court clerks have absolute quasi-judicial immunity from damages
for civil rights violations when they perform tasks that are an
integral part of the judicial process.").

     37
          E.g., Commodity Futures Comm'n v. Schor, 478 U.S. 833
(1986).

     38
          E.g., Mistretta v. United States, 488 U.S. 361 (1989).
This experience is not limited to the federal system. See Markham
v. Clark, 978 F.2d 993 (7th Cir. 1992).


                                    11
      When determining whether a state governmental officer is

entitled to absolute immunity we examine the character of the

officer's duties and the relationship to the parties.39                If the

officer's duties are of a judicial nature40 we must then weigh the

costs and benefits of denying or affording absolute immunity.                Our

analysis    is    informed   by   reference    to   the   following   factors:

(a) the need to assure that the individual defendant can perform

his functions without harassment or intimidation; (b) the presence

of safeguards that reduce the need for private damages as a means

of   controlling      unconstitutional     conduct;   (c)   insulation       from

political influence; (d) the importance of precedent; (e) the

adversary nature of the process; (f) the correctability of error on

appeal.41        No   one   factor   is    controlling    and   the   list    of

considerations is not intended to be exclusive.42 After considering


      39
            Stump v. Sparkman, 435 U.S. 349 (1978).

      40
          We think the answer to this question is obvious. Texas
courts recognize the judicial nature of the Commission's
fact-finding mission. See Vick v. City of Waco, 614 S.W.2d 861
(Tex.Civ.App. -- Waco 1981, writ ref'd n.r.e.). Our review above
of the makeup of the Commission and of the record in this case
confirms that this view is consistent with federal law.        The
Supreme Court has noted that "[a] judicial inquiry investigates,
declares and enforces liabilities as they stand on present or past
facts and under laws supposed already to exist."       Prentis v.
Atlantic Coast Line Co., 211 U.S. 210, 226 (1908). The essential
question before us is whether, as a matter of sound policy, the
Commissioners should be afforded absolute or qualified immunity.

      41
            Cleavinger v. Saxner, 474 U.S. 193 (1985).

      42
            Id. at 202.


                                      12
these factors and the Commission's role in this case, we conclude

and hold that the individual Commissioners are entitled to absolute

immunity for the performance of their official duties.

      The     Supreme       Court's    decision    in    Butz    v.    Economou43    is

instructive. There the Court emphasized that the judicial process,

by its nature, inexorably leaves one party willing to "accept

anything but the soundness of the decision in explanation of the

action of the judge"44 and applied absolute immunity to federal

administrative     officers       and    hearing   examiners,         likening   their

responsibilities to those of a judge.                   The Court noted that, as

here,      extensive    safeguards      checked    against      the   likelihood    of

unconstitutional excesses.

      Citing concerns about the lack of independence of prison

officials charged with reviewing disciplinary claims in Cleavinger

v. Saxner and school board members who reviewed student violations

of school regulations in Wood v. Strickland,45 the Supreme Court

refused to extend absolute immunity.               Unlike those officials, the

Commissioners herein serve in a politically protected capacity and

their actions are constrained in detail by their enabling statute.

We   hold that,        on   balance,    absolute    immunity      best    serves    the

efficacy of the Commission's adjudicatory function. Our conclusion

      43
              438 U.S. 478 (1978).

      44
              Id. at 509 (citing Bradley v. Fisher, 13 Wall. 335, 348
(1872)).

      45
              420 U.S. 300 (1975).


                                          13
accords with rationales of decisions by other courts.46

     The current state of the record does not permit consideration

of whether Storey's act of preparing a subpoena is entitled to

absolute immunity.47    As an employee of the Commission that act,

however, is entitled at least to qualified immunity.48           The bare

allegation   almost    five   years   after   filing   suit   that   Storey

intentionally misdated a subpoena so as to deny Mylett the benefit

of testimony is insufficient to overcome qualified immunity.49

     C.   Claims against the officers.

     Mylett's claims against three police officers under 42 U.S.C.

§ 1983 for denial of due process and § 1985 for conspiracy need not

long detain us. We agree with the district court's conclusion that

Mylett failed to assert a cognizable class-based animus to support

a claim under section 1985 and failed to establish an enforceable


    46
          E.g., Brown v. Griesenauer, 970 F.2d 431 (8th Cir. 1992)
(finding alderman absolutely immune from civil liability for having
impeached a mayor for misconduct); Lentsch v. Marshall, 741 F.2d
301 (10th Cir. 1984) (providing absolute immunity to a witness in
a hearing before a Civil Service Commission and noting the judicial
nature of the proceedings); Hollowell v. Gravett, 703 F.Supp. 761
(E.D.Ark. 1988) (attorney practicing before the Civil Service
Commission); Burton v. Peartree, 326 F.Supp. 755 (E.D.Pa. 1971)
(Federal Civil Service Commissioner).

    47
          Williams v. Wood, 612 F.2d 982 (5th Cir. 1980) (immunity
of court personnel varies depending on whether they are acting
pursuant to a court decree or under explicit direction of the
judge).

     48
          Id.

     49
          Mitchell v. Forsyth, 472 U.S. 511, 526-28 (1985).


                                      14
property interest as against these defendants.

     The judgment of the district court is, in all respects,

AFFIRMED.




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