identical issues of fact and law pertaining to the rights, duties, and legal relations of the Town of East Hampton and Councilman Cooper.
On October 28, 1994, this Court also denied from the Bench Cooper's motion for partial summary judgment in Cooper I and dismissed the case sua sponte for lack of federal jurisdiction. Upon reconsideration, however, the Court hereby finds: (1) that it has subject matter jurisdiction over Cooper I because of the First Amendment claims therein, and (2) that the case shall remain in federal court.
The Complaint in Cooper I contains the following charges: (1) the Town violated Cooper's First Amendment right to freedom of speech by denying him a legal defense in retaliation for his "outspokenness" against the East Hampton Police; (2) The Town violated Cooper's rights of freedom of expression under Article I, Section 8 of the New York State Constitution; (3) The Town deprived Cooper of a property and liberty interest without due process of law as guaranteed by the Fifth Amendment; (4) The Town violated 42 U.S.C. § 1983 by denying Cooper a legal defense in violation of New York public Officer's Law § 18 and § 20-6 of the East Hampton Town Code; (5) The Town violated § 20-6 of the East Hampton Town Code; (6) the Town negligently inflicted emotional distress upon Cooper; (7) the Town violated 42 U.S.C. § 1983 by not granting Cooper equal protection under the Fourteenth Amendment.
On October 28, 1994, this Court ruled from the bench that Cooper had failed to stare a valid claim upon which relief could be granted pursuant to either 42 U.S.C. § 1983, the First Amendment, or the equal protection or due process clauses of the United States Constitution. Upon reconsideration of Cooper's First Amendment claims alone, however, this Court hereby finds that Cooper has sufficiently pleaded a violation of his First Amendment rights to warrant federal jurisdiction over Cooper I.
Specifically, on the basis of Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994), this Court finds that Cooper has sufficiently pleaded the "requisite nexus" between the exercise of his First Amendment rights and the Defendants' subsequent "retaliatory" conduct in abstaining from voting on, or voting against, the Resolution regarding Cooper's legal defense. To establish a retaliation claim under the two-prong Gagliardi test, a plaintiff must] show (1) ". . . that [his/her] conduct is protected by the First Amendment," and (2) that "defendant's conduct was motivated by or substantially caused by [plaintiff's] exercise of free speech." Id., at 194 (quoting Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991), cert. denied, 504 U.S. 911, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992)).
A public official's right to speak to the press and the public about his/her concerns or views is certainly protected by the First Amendment. It is, indeed, "beyond cavil that the First Amendment encompasses a freedom of expression that extends to political speech and the right to petition the government for a redress of grievances." Plaintiff's Memorandum of Law in Support of its Motion for Partial Summary Judgment at 12 (quoting Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969)). Thus, Cooper has sufficiently pleaded the first prong of the Gagliardi test.
With regard to the second prong of that test, the Gagliardi Court wrote that:
The ultimate question of retaliation involves a defendant's motive and intent, which are difficult to plead with specificity in a complaint . . . [yet] it is sufficient to allege facts from which a retaliatory intent on the part of the defendants reasonably may be inferred.