Gilbert v. Flandreau Santee Sioux Tribe

#23733-a-JKM

2006 SD 109

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

HELEN GILBERT, Plaintiff and Appellant,

v.

FLANDREAU SANTEE SIOUX TRIBE, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
MOODY COUNTY, SOUTH DAKOTA

* * * *

HONORABLE DAVID R. GIENAPP
Judge

* * * *

TODD D. EPP of
Todd D. Epp Law Office, PLLC Attorney for plaintiff
Harrisburg, South Dakota and appellant.

ROLLYN H. SAMP of
Samp Law Firm Attorney for defendant
Sioux Falls, South Dakota and appellee.

* * * *

ARGUED ON OCTOBER 4, 2006

OPINION FILED 11/29/06
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MEIERHENRY, Justice

[¶1.] Gilbert was denied unemployment insurance (UI) benefits after a

referee determined she had been terminated for work-related misconduct under

SDCL 61-6-14.1. Gilbert claimed the South Dakota Department of Labor

Unemployment Insurance Division’s (Department) denial violated her state and

federal constitutional rights of free speech. The circuit court affirmed the denial

and Gilbert appeals. We affirm.

FACTS

[¶2.] Helen Gilbert (Gilbert) was employed by the Flandreau Santee Sioux

Tribe (Tribe) as an education coordinator from November 13, 2000 to August 10,

2004. Gilbert supervised a federal wellness program for grades 7-12. Gilbert’s

discharge was based on a letter she wrote to the Tribal Executive Committee in

reference to the committee’s political appointment of Donalda “Neldie” Montoya

(Montoya) to the Office of Tribal Secretary, an office also sought by Gilbert. The

letter sharply criticized Montoya’s appointment. Gilbert’s complaint about Montoya

stemmed from an earlier incident concerning defamatory statements Montoya

allegedly had made about Gilbert.

[¶3.] After learning of Montoya’s appointment and before writing the letter,

Gilbert telephoned Montoya. In the phone call, Gilbert told Montoya that she was

going to “sue her for slander for the statement she made in May, and that she

should write this conversation date and time down and let. . . her supervisor know.”

[¶4.] After the phone call, Gilbert wrote a letter during work hours on tribal

stationery to the Tribal Executive Committee. The heading of the letter indicated

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that it was to the Flandreau Santee Sioux Tribe from Helen Gilbert, education

coordinator, in reference to “8/10/04 Incident-Neldie Montoya appointment as FSST

Secretary.” The letter began with the following paragraph:

I received a phone call at approximately 2:00 pm on 8/10/04 from
an employee who stated that they were just told that Neldie
Montoya has just been appointed as Secretary for the tribe.
Neldie, during the election petition process had stated to
Elizabeth Shortman that the Council was going to block my
nomination based on allegations that I was charged as a
prostitute. The knowingly false charge such as this sent me over
the edge. I have never received any follow up after I complained
about Neldie’s statement.

Additionally, the letter criticized the tribal chairman of neglect of duty as follows:

[He is] unwilling and neglectful in upholding the duties of Tribal
Chair by not managing the problems that fall within the
purview of his office. Problem employees literally get away with
murder, employees who are vocal and know their rights are
persecuted.

She then went on to name several other employees who she thought were problem

employees and pointedly accused the employees of such things as “violent,

hysterical public performances,” “violence in the workplace,” “violation of the

political activity policy,” “embezzlement,” drug and alcohol violations, and

incompetence.

[¶5.] Before sending the letter, Gilbert had her supervisor review it. When

asked whether her supervisor okayed the letter, Gilbert stated, “her only reaction or

statement was, ‘oh my God, Helen,’ that was it.” As a result of sending the letter to

the executive committee, the Tribe decided to suspend Gilbert for violating the

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political activity policy. 1 Gilbert was admittedly aware of the policy but felt that

writing the letter was within the parameters of her employment and refused to

accept the suspension order. The Tribe subsequently terminated Gilbert’s

employment.

[¶6.] As a result, Gilbert filed for UI benefits with the Department on

September 2, 2004. The Department initially determined that the conditions of

Gilbert’s termination did not disqualify her from receiving UI benefits. The Tribe

appealed the Department’s determination.

[¶7.] Gilbert claimed that she wrote the letter to the tribal council in her

capacity as education coordinator and followed the chain of command before

submitting it. After a hearing on the matter, the referee denied Gilbert UI benefits

based on a finding that she had been discharged for work-connected misconduct as

defined by SDCL 61-6-14.1. 2 The referee specifically found that Gilbert was aware

1. The Tribe instituted the political activity policy because of a compact the
Tribe entered into with the State of South Dakota on gambling which also
prohibits the Tribe and its employees from engaging in political activity.

2. Misconduct is defined by SDCL 61-6-14.1 as:

1. Failure to obey orders, rules or instructions, or failure to discharge
the duties for which an individual was employed; or
2. Substantial disregard of the employer’s interest or of the employee’s
duties and obligations to the employer; or
3. Conduct evincing such willful or wanton disregard of an employer’s
interests as is found in deliberate violations or disregard of
standards of behavior which the employer has the right to expect of
the employee; or
4. Carelessness or negligence of such degree or recurrence as to
manifest equal culpability or wrongful intent.
However, mere inefficiency, unsatisfactory conduct, failure to perform
as the result of inability or incapacity, a good faith error in judgment
(continued . . .)
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of the Tribe’s political policy, that she wrote a letter to the executive committee on

tribal stationary while she was at work, that the letter was critical of the tribal

chairman and other tribal employees and that her conduct violated the Tribe’s

political activity policy. Gilbert appealed the referee’s decision to circuit court.

[¶8.] On appeal, Gilbert did not claim that the referee’s findings were

clearly erroneous. Gilbert’s only contention was that she could not be denied UI

benefits based upon work-connected misconduct, i.e. violation of the political

activity policy, because of her constitutional right to freedom of speech. The circuit

court noted that the basic facts were not in dispute, that there was no question that

Gilbert’s letter violated the political activity policy and that she violated the policy

during working hours utilizing tribal stationery. The circuit court affirmed the

referee’s decision and concluded that there was no violation of Gilbert’s

constitutional right to freedom of speech. Gilbert appeals the decision claiming that

her letter to the tribal council is constitutionally protected free speech for which she

cannot be disqualified from receiving UI benefits.

DECISION

[¶9.] The Tribe’s reason for dismissing Gilbert was that the letter she wrote

to the Tribe allegedly violated its political activity policy. 3 Gilbert does not dispute

___________________
(. . . continued)
or discretion, or conduct mandated by a religious belief which belief
cannot be reasonably accommodated by the employer is not
misconduct.

3. The Tribe’s political activity policy reads as follows:

(continued . . .)
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that she wrote the letter on tribal stationery during work hours using tribal

equipment. In fact, she does not appear to dispute the referee’s and trial court’s

conclusions that her actions and complaints violated the Tribe’s policy.

Consequently, the only issue before us is whether her federal or state constitutional

right to freedom of speech protects her from being denied UI benefits.

[¶10.] This Court has never analyzed the First Amendment right to free

speech in the context of a state’s denial of UI benefits. The United States Supreme

Court has, however, recognized that the First Amendment protects religious

freedom in the context of UI benefits. In Sherbert v. Verner, the Court found that a

claimant’s refusal to work on her faith’s Sabbath day was protected and could not

serve as a basis for denying UI benefits. 374 US 398, 403-04, 83 SCt 1790, 1793-94,

___________________
(. . . continued)
The tribal administration must be able to operate as fairly and
effectively as possible and to protect the rights of its employees by
ensuring that they are free from political influence and are able to
administer programs without bias or favoritism. It is therefore the
policy of the Tribe that employees not engage in political activities
during work hours. Employees are strictly prohibited from engaging in
political activity during work hours or from using tribal equipment or
property for political activity as defined below. Employee shall not be
subject to influence or pressure from Executive Committee members or
candidates for office.

Political activity includes, but is not necessarily limited to, the
following: preparing, circulating, signing, or soliciting signatures to
petition for recall, referendum or initiative, enrollment petitions,
election petitions or any other petition involving tribal matters or
affairs; any activity intended to influence the out-come of a tribal
election or a vote on a matter involving tribal affairs, whether verbal or
written, that is intended to be divisive towards the tribal government.

Violation of this policy will result in disciplinary action, up to and including
termination.

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10 LEd2d 965 (1963). Additionally, the Court has long recognized a public

employee’s protection of freedom of speech in cases of discharge from employment.

As recently stated in Garcetti v. Ceballos, “It is well settled that ‘a State cannot

condition public employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of expression.’” 126 SCt 1951, 1955,

164 LEd2d 689 (2006) (quoting Connick v. Myers, 461 US 138, 142, 103 SCt 1684,

1687, 75 LEd2d 708 (1983)). “[T]he First Amendment protects a public employee’s

right, in certain circumstances, to speak as a citizen addressing matters of public

concern.” Id. Thus in determining whether Gilbert can be denied UI benefits, we

follow the method of inquiry set forth by the United States Supreme Court. The

Court identifies two inquiries that guide a constitutional analysis as follows:

Pickering and the cases decided in its wake identify two
inquiries to guide interpretation of the constitutional protections
accorded to public employee speech. The first requires
determining whether the employee spoke as a citizen on a
matter of public concern. If the answer is no, the employee has
no First Amendment cause of action based on his or her
employer’s reaction to the speech. If the answer is yes, then the
possibility of a First Amendment claim arises. The question
becomes whether the relevant government entity had an
adequate justification for treating the employee differently from
any other member of the general public. This consideration
reflects the importance of the relationship between the speaker’s
expressions and employment. A government entity has broader
discretion to restrict speech when it acts in its role as employer,
but the restrictions it imposes must be directed at speech that
has some potential to affect the entity’s operations.

Id. (citing Pickering v. Board of Ed. of Tp. High School Dist. Will. Co., Ill., 205, 391

US 563, 568, 88 SCt 1731, 20 LEd2d 811 (1968) and Connick, 461 US at 147, 103

SCt at 1690).

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[¶11.] Accordingly, our first inquiry is whether Gilbert spoke “as a citizen on

a matter of public concern.” Id.; see also Rankin v. McPherson, 483 US 378, 384,

107 SCt 2891, 2897, 97 LEd2d 315 (1987); State v. Springer-Ertl, 2000 SD 56, ¶¶16-

17, 610 NW2d 768, 773. The employee bears the initial burden of demonstrating

that the speech involves matters of public concern. See Connick, 461 US 138, 103

SCt 1684. The United States Supreme Court defined public concern “as relating to

any matter of political, social, or other concern to the community.” Id. at 146, 103

SCt at 1690. In evaluating whether statements are a matter of public concern, we

look to their content, form, and context, as revealed by the entire record. Rankin v.

McPherson, 483 US 378, 385, 187 SCt 2891, 2897, 97 LEd2d 315 (1987). An

employee acting “as a concerned citizen interested in bringing problems to light

more likely raises a matter of public concern than one who attempts to rectify work-

place problems.” Wilson v. Washington, 929 P2d 448, 454 (Wash 1996). Statements

concerning internal grievances are an example of such attempts to rectify work-

place problems and are not generally considered matters of public concern. See

Connick, 461 US at 147-48, 103 SCt at 1690-91. Likewise, an employee that offers

his or her personal opinions or beliefs, especially in the work setting, does not

implicate matters of public concern. Wilson, 929 P2d at 454; see also Koch v. City of

Hutchinson, 847 F2d 1436, 1446-47 (10thCir 1988) cert. denied, 488 US 909, 109

SCt 262, 102 LE2d 250 (1988); Keating v. University of South Dakota, 386 FSupp2d

1096, 1107 (DSD 2005). We cannot “presume that all matters which transpire

within a government office are of a public concern. . . [because] every remark - and

certainly every criticism directed at a public official- would plant the seed of a

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constitutional case.” Connick, 461 US at 149, 103 SCt at 1691. Instead, the

content, context and form of the letter determine whether the speech addresses a

matter of public concern thereby implicating the First Amendment.

[¶12.] In Connick v. Myers, the United States Supreme Court found that a

questionnaire distributed by an assistant district attorney during work hours to

other assistant district attorneys containing questions about office transfer policy,

office morale, the need for a grievance committee, and the level of confidence in

supervisors did not address a matter of public concern. Id. at 148, 103 SCt at 1690

(finding, however, that the question of whether employees felt pressured to work in

political campaigns was a matter of public concern). Although the dispute with her

supervisor centered on office transfer policy, the Court viewed many of the

additional issues addressed by the questionnaire as mere extensions of that dispute.

Id. The fact that the employee dispersed these questionnaires during work hours

because she was upset over her recent transfer led the Court to determine that her

concerns were simply “one employee’s dissatisfaction with a transfer and an

attempt to turn that displeasure into a cause celebre.” Id. at 148, 103 SCt at 1691.

[¶13.] Gilbert claims in her response letter to the Department that she wrote

the letter to the tribal council in her “capacity as education coordinator.” In

Garcetti v. Cebellos, the United States Supreme Court held that “when public

employees make statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes.” 126 SCt at 1960. While

Gilbert’s official duties as education coordinator did not require her to criticize the

tribal chairman or her fellow employees, she claims that her position as education

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coordinator gave her the authority to make such a critique. While not dispositive,

this fact is relevant to the context and content of Gilbert’s letter. See id. at 1959.

Gilbert also indicated that the context of the letter involved her complaint about

Montoya’s alleged statement about her and Montoya’s recent appointment as

secretary to the tribal council. Gilbert explained her motive in her reply letter to

the Department:

In May of 2004, prior to run-off elections for the tribe, it was
reported to me that Donalda Montoya, Payroll Clerk, made a
statement to an employee at the Clinic, that she was told by a
member of Council that if I decided to run for election for a
position on Council that my nominating petition would be
thrown out due to my conviction as a prostitute. This statement
was made on company time, was vicious, untrue and malicious
slander. I reported the incident to my supervisor and expected
Donalda to be disciplined. I later found that nothing was done,
by my supervisor or HR, Deb Wakeman on my behalf.

Nothing in her explanation to the Department or in her testimony indicated that

she was speaking as a citizen on a matter of public concern. In fact, she claimed to

be speaking in her capacity as education coordinator.

[¶14.] Additionally, the content and form of Gilbert’s letter involved internal

complaints about other employees and particularly the political appointment of

Montoya as tribal secretary. Gilbert addressed these internal complaints to the

Tribe’s executive committee. Although the internal nature of her letter is not

dispositive, when coupled with the nature of her complaints, we conclude that when

Gilbert wrote the letter, she was not speaking as a citizen on matters of public

concern. See id.

[¶15.] Thus considering the context, content and form of Gilbert’s letter, we

cannot say that the trial court erred when it concluded that the letter did not

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contain matters of public concern. Since Gilbert’s statements were not of public

concern, the First Amendment of the United States Constitution is not applicable

and our inquiry ends.

Violation of Gilbert’s Right to Free Speech Under Article VI, Section 5 of the South
Dakota Constitution

[¶16.] Gilbert contends that Article VI, Section 5 of South Dakota’s

Constitution provides broader protection than the United States Constitution’s

First Amendment. 4 Based on this contention, Gilbert argues that the Department’s

denial of UI benefits violated her right to freedom of speech under South Dakota’s

Constitution. While we have held that the press is afforded no greater rights under

Article VI, Section 5, the facts before us present a matter of first impression. See

Rapid City Journal Co. v. Circuit Court of the Seventh Judicial Circuit, 283 NW2d

563, 568 (SD 1979) (considering the right afforded to members of the press to access

jury voir dire proceedings).

[¶17.] In considering whether to apply a broader interpretation of our state

constitution, we consider the text, history, and purpose of the constitutional

provision. State v. Schwartz, 2004 SD 123, ¶57, 689 NW2d 430, 445 (Konenkamp,

J., concurring). In doing so, we are not bound to reach the same result as the

United States Supreme Court finds in the Federal Constitution. See City of

4. In its entirety, Article VI, Section 5 of South Dakota’s Constitution provides:

Every person may freely speak, write, and publish on all subjects,
being responsible for the abuse of that right. In all trials for libel, both
civil and criminal, the truth, when published with good motives and for
justifiable ends, shall be a sufficient defense. The jury shall have the
right to determine the fact and the law under the direction of the court.

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Mesquite v. Aladdin’s Castle, Inc., 455 US 283, 293, 102 SCt 1070, 1077, 71 LEd2d

152 (1982). The provisions of South Dakota’s Constitution have legal force apart

from the federal constitution. Schwartz, 2004 SD 123, ¶33, 689 NW2d 430, 438

(Konenkamp, J., concurring).

[¶18.] The best argument for interpreting our State Constitution differently

from the Federal Constitution is that the texts of the parallel provisions are

different. The relevant portion of Article VI, Section 5 reads as follows:

Every person may freely speak, write and publish on all
subjects, being responsible for the abuse of that right.

The federal counterpart to Article VI, Section 5, the First Amendment to the United

States Constitution, reads:

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.

US Const amend I. Although worded differently, both provisions guarantee

freedom of speech and the press. However, it is not clear whether this difference in

language was intended to provide broader protection under South Dakota’s

Constitution.

[¶19.] Article VI, Section 5 of South Dakota’s Constitution originated at

South Dakota’s Constitutional Convention of 1885. On September 14, 1885, the

committee on the Bill of Rights submitted a draft of the Bill of Rights to the

convention. The proposed language of Article VI, Section 5 mirrored the language

in South Dakota’s Constitution, which was adopted on October 1, 1889 by popular

vote. Article VI, Section 5 remains the same today.

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[¶20.] On September 17, 1885, the Convention discussed a report on the Bill

of Rights and addressed each provision of South Dakota’s Bill of Rights individually.

However, the original manuscript of the discussions regarding Article VI, Section 5

was lost and could not be included in the published debates. 5 This unfortunately

gives us no insight into the thoughts and reasoning of the individuals who debated

Section 5 of South Dakota’s Bill of Rights.

[¶21.] Despite the absence of this particular debate, it is clear that whatever

debate took place regarding Section 5, there were no changes made to the language

of Section 5 proposed by the committee on September 14, 1885. We also note that

the manuscripts of the debates regarding other provisions in the Bill of Rights

centered on the language of similar guarantees found in other state’s constitutions

at that time. 6 Therefore, we find no indication that the framers intended to provide

more expansive protection through South Dakota’s Bill of Rights than that provided

by the First Amendment of the United States Constitution.

[¶22.] It is also evident that other states’ constitutions played a role in the

drafting of South Dakota’s Bill of Rights since the majority of states have free

speech provisions similar to that of South Dakota. In the early part of the twentieth

century, this Court noted that nearly all of the American states had adopted a

5. In volume one, page 281, of South Dakota’s Constitutional Debates, there is a
note from the Editor that reads: “A page of the original manuscript of the
debates has evidently been lost at this point, covering the consideration of
Sections 2, 3, 4 and 5, of the bill of rights.”

6. When a comparison was made, it was usually with the constitutions of
California, Illinois, or Iowa.

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similarly worded free speech amendment. State v. Kirby, 36 SD 188, 154 NW 284,

286 (1915); see also American Bush v. City of South Salt Lake, 140 P3d 1235, 1247

(Utah 2006)(noting that “[a]s of the year 2000, 43 state constitutions contained the

‘freedom of speech’ tempered by a ‘responsibility for abuse’ clause.”); State v.

Wicklund, 589 NW2d 793, 799 (Minn 1999) (noting that 33 states’ free speech

provisions contained the following language: “all persons may freely speak . . . on

all subjects being responsible for the abuse of such right.”). The majority of states

with almost identical language have interpreted their state constitutional free

speech provisions as coextensive with their federal counterparts. 7 As pointed out by

Justice Konenkamp, although we must address questions of constitutional

interpretation “autonomously [to] develop a coherent body of South Dakota

constitutional law,” we do look to other states for guidance. Schwartz, 2004 SD 123,

¶33, 689 NW2d 430, 438 (Konenkamp, J., concurring).

[¶23.] The only authority Gilbert advances for a broader interpretation of

South Dakota’s Constitution is California’s interpretation of their similarly worded

7. See, e.g., Fiesta Mall Venture v. Mecham Recall Committee, 767 P2d 719, 724
(ArizCtApp 1988); Citizens for Ethical Government, Inc. v. Gwinnett Place
Assocs., L.P., 392 SE2d 8, 9-10 (Ga 1990); People v. DiGuida, 604 NE2d 336,
344-45 (Ill 1992); State v. Milner, 571 NW2d 7, 12 (Iowa 1997); Woodland v.
Michigan Citizen’s Lobby, 378 NW2d 337, 346-47 (Mich 1985); State v.
Wicklund, 589 NW2d 793, 799-801 (Minn 1999); State v. Felmet, 273 SE2d
708, 712 (NC 1981); Eastwood Mall Inc. v. Slanco, 626 NE2d 59, 61 (Ohio
1994); Charleston Joint Venture v. McPherson, 417 SE2d 544, 548 n7 (SC
1992); Southcenter Joint Venture v. National Democratic Policy Comm., 780
P2d 1282, 1291-92 (Wash 1989); Jacobs v. Major, 407 NW2d 832, 836-37 (Wis
1987).

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constitutional provision on free speech. 8 However, California has made such

determinations in the context of compelled speech, obscene speech, and the absence

of state action. See Gerawan Farming, Inc. v. Lyons, 12 P3d 720, 735 (Cal 2000)

(stating that the California right to free speech, unlike the First Amendment, runs

against the world and is unlimited in scope). In Gilbert’s case, there is no question

that there is state action because the South Dakota Unemployment Insurance

Division denied Gilbert UI benefits. Furthermore, even if we interpret “public

concern” liberally, we could not conclude that her speech was more than the airing

of internal grievances. Interpreting South Dakota’s constitution as affording

greater protection than the Federal Constitution is a “significant undertaking for

any state court.” Wicklund, 589 NW2d at 799. Under the facts of this case, we do

not find greater protection in Article VI, Section 5 and decline to extend its

protection further than the First Amendment of the United States Constitution.

[¶24.] Gilbert also argues that the administrative law judge’s findings were

“clearly erroneous in light of the entire evidence in the record.” However, Gilbert

cites to nothing in the record nor any authority to support her argument. Therefore,

we find her argument is without merit. Chapman v. Chapman, 2006 SD 36, ¶31,

713 NW2d 572, 580.

8. Article I, Section 2 of California’s Constitution provides: “Every person may
freely speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain or abridge
liberty of speech or press.”

The California Court of Appeals recently noted that the “state Constitution’s
free speech clause is at least as broad, and in some ways broader, than the
comparable provision of the federal Constitution.” ARP Pharmacy Serv., Inc.,
v. Gallagher Basset Serv., Inc., 138 CalApp4th 1307, 1314 (CalCtApp 2006).

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[¶25.] Affirmed.

[¶26.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

ZINTER, Justices, concur.

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