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Daniel T. Galena, Individually and On Behalf of the Citizens of Erie v. Fiore Leone

April 13, 2011


On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 1-07-00089) Honorable Sean J. McLaughlin, District Judge

The opinion of the court was delivered by: Greenberg, Circuit Judge.


Argued December 15, 2010




This matter comes on before this Court in this 42 U.S.C. § 1983 First Amendment action on plaintiff Daniel T. Galena‟s appeal from the District Court‟s orders entered on March 5, 2010, vacating a jury‟s verdict in his favor, granting defendant Fiore Leone judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), and denying Galena‟s motions for an award of attorney‟s fees and costs. In his amended complaint, Galena alleged that Leone, at a time that he was the chairperson of the Erie County, Pennsylvania, Council, the County‟s legislative body, violated his First Amendment rights to free speech and to petition the government by ejecting him from a Council meeting when Galena attempted to object to the Council‟s procedure in adopting an ordinance. At the end of a two-day trial, the jury returned a verdict in Galena‟s favor, and awarded him $5,000 in compensatory damages, as it found that Leone intended to suppress Galena‟s speech by reason of Galena‟s viewpoint or identity when he had Galena ejected from the meeting. On Leone‟s post-trial motion, however, the Court vacated the verdict, and granted Leone judgment as a matter of law, as it held that the evidence was insufficient to support the liability verdict. The Court also denied Galena‟s motions for attorney‟s fees and costs. Inasmuch as we agree with the District Court that the evidence was insufficient to support the jury‟s finding that Leone‟s actions violated the First Amendment and section 1983, we will affirm the orders of March 5, 2010.


In 2006 Galena, a resident of Erie County, began attending meetings of the Erie County Council because of his interest in government and his desire to observe how the Council was spending public tax dollars. The Council held meetings every two weeks and Galena estimates that between early 2006 and March 20, 2007, he attended its meetings at least once a month.

The Council has adopted an Administrative Code that provides for the order of business at a typical Council meeting to be as follows: (1) Pledge of Allegiance; (2) Optional Prayer or Invocation; (3) Roll Call; (4) Hearing of the Public; (5) Approval of the Minutes of Previous Meetings; (6) Reports of County Officials, Committees, or Special Advisory Groups; (7) Unfinished Business; (8) New Business; and (9) Adjournment.*fn1

The Council permits members of the public to comment on any subject they wish to address during the Hearing of the Public portion of the meeting, allowing a speaker who has provided advance written notice of a desire to speak five minutes and a speaker who has not provided such advance notice three minutes. The Council applies the Code to preclude a member of the public from speaking at any time during a Council meeting other than during the Hearing of the Public portion of the meeting.*fn2 The Code provides that the presiding officer may bar a member of the public from the meeting if the individual becomes boisterous or makes offensive, insulting, threatening, insolent, slanderous, or obscene remarks.

The Council takes up the adoption of ordinances during the "New Business" portions of meetings in accordance with a formal procedure in the Code. In this regard, the Code provides that proposed ordinances be introduced in writing, and, except for emergency ordinances, which may be adopted sooner, may be adopted at a meeting held at least one week after the meeting at which they were introduced. The Code requires that all ordinances related to the levying of taxes, before being adopted, are to be read at least once in each of two separate meetings of the Council.

Galena has spoken during the Hearing of the Public portion of Council meetings approximately 14 or 15 times, primarily addressing Erie County‟s expenditure of tax revenues. Galena testified that when speaking his custom has been to begin by stating his name and address to the Council, and then turning to the audience and greeting them by stating, "[G]ood evening taxpayers." App. at 26. Next, his custom is to face the Council and, "more often than not, [he] . . . kind of pan[s] the seven members of County Council with [his] arm . . . and say[s] "good evening tax spenders.‟" Id. Galena testified that Leone, on hearing the latter greeting, often would "grimace and scowl." Id. Galena also testified that while he was speaking, Leone would "more often than not . . . grin, and almost laugh" at his comments, though he did not react that way when other members of the public spoke. Id. at 27.

This litigation arose from events at the March 20, 2007 Council meeting. During the Hearing of the Public portion of that meeting four members of the public addressed the Council:

(1) Gil Rocco criticized the Council for its decision making process and for breaking the law by passing a ban on smoking in the county;*fn3 (2) Renee Vendetti accused the Council of wasting money on trips to Washington D.C. and Harrisburg, Pennsylvania, and stated that the smoking ban was improper under Roberts Rules of Order and that those rules must be followed in the preparation of Council minutes; (3) Kenneth Francis Simon Przepierski stated that the smoking ban was a "smoke screen" so that the Council can "fly through agendas bumping first readings to second readings," criticized the Council‟s tax exoneration of certain properties, and stated that the budget should be trimmed, id. at 141; and (4) Maria Foster stated that the Council was breaking the law in various ways and that it allowed the Office of Children and Youth to violate the law even though the agency is under the Council‟s and the Erie County executive‟s*fn4 jurisdiction. Furthermore, Foster accused Council members of taking pleasure trips to Washington D.C. and receiving cash and extra perks. All four persons spoke without interruption or other incident.

Following the Hearing of the Public, the Council approved the minutes of the previous meeting and received reports from various committees and Council members. The minutes of the meeting recite that Leone then addressed the public comments regarding the smoking ban and also made the following statement:

Mr. Leone then addressed Ms. Vendetti, Ms. Foster and Mr. Przepierski. Mr. Leone keeps hearing that Council breaks the law. He cautioned these individuals to be careful when they tell Council they want to be taken seriously; because Council should be taken seriously as well. It seems that no matter what, some people cannot be pleased. He recalled a story his father told him -- if you pass out ten dollar bills, people will complain that they‟re not twenties, and he feels his father was probably right. This seems to be the situation here; no matter what Council does, it just isn‟t enough. People think Council Members should be available 24 hours a day, doing everything they possibly can.

Although he probably puts in more time than other members, it is because Mr. Leone has the time. He reminded the audience that this is a part-time job. Council Members are legislators, and Council is getting tired of some of the issues being brought up. He again cautioned people to be careful, because, if necessary, Council will take the matter to court.

App. at 144-45.

Next, the Council considered several ordinances. During this consideration, a Council member made a motion to move a newly introduced ordinance from the first reading to a second reading. At that point Galena and Leone had the following exchange:

Mr. Leone: Next item, second reading of Ordinance 28, in its entirety, please.

Mr. Smith: Second reading of Ordinance Number 28, 2007, "Fifth 2007 Public Health Fund Budget Supplemental Appropriation for Public Health Preparedness Grant.‟ (Mr. Smith reads ordinance body)

Mrs. Loll: So moved.

Mr. Mitchell: Second.

Mr. Leone: Moved by Mrs. Loll, seconded by Mr. Mitchell. Comments?

Mr. Galena: Mr. Chairman, I have an objection . . .

Mr. Leone: (uses gavel)

Mr. Galena: Mr. Chairman, I have an objection

Mr. Leone: You‟re out of order.

Mr. Galena: You are in violation . . .

Mr. Leone: I said you‟re out of order, if you keep it up I‟ll have you taken out.

Mr. Galena: I object. You are in violation of Pennsylvania Sunshine Act.

Mr. Leone: Deputy, I want him taken out of here.

Mr. Galena And Erie County‟s Administrative Code.

Mr. Leone: And I want him charged.

Mr. Galena: You are in violation of the Pennsylvania Sunshine Act.

Mr. Leone: I want him charged. Do you hear, that‟s harassment. You‟re not going to get away . . .

Mr. Galena: I‟m part of the assembly, I object to your proceedings.

Mr. Leone: We‟ll file charges ...

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