163139P.pdf   09/07/2017  Roger Lee  v.  William Driscoll
   U.S. Court of Appeals Case No:  16-3139
                          and No:  16-3236
   U.S. District Court for the District of South Dakota - Sioux Falls   
   [PUBLISHED] [Kelly, Author, with Smith, Chief Judge, and Colloton, Circuit 
   Judge] 
   Civil case - Civil rights. The district court did not err in denying 
   individual defendants' motion for summary judment based on qualified 
   immunity on plaintiffs' claim they retaliated against plaintiffs for 
   exercising their First Amendment right to criticize township board 
   decisions and return FEMA funds as defendants did not argue to the 
   district court that persons of ordinary firmness would continued to 
   exercise their rights, and the court would not consider their ordinary 
   firmness argument for the first time on appeal;restrictions on an elected 
   official's ability to perform her duties violates her right to freedom of 
   association, and the district court did not err in denying qualified 
   immunity to the individual defendants on plaintiff Mary Lee's claim she 
   was excluded from board meetings despite her position as board clerk; 
   there is no First Amendment right to participate in a non-public meeting 
   as a member of the public, and the district court erred in denying the 
   individual defendants' motion for summary judgment on plaintiffs' claim 
   defendants violated their right to petition; only one issue in plaintiffs' 
   cross-appeal is inextricably intertwined with an issue raised in the 
   individual defendants' appeal and therefore appealable - whether the 
   plaintiffs had a clearly established right under the First Amendment 
   free-speech clause to participate in non-public Township Board meetings; 
   as the court has already concluded that there is no such right, the 
   district court's grant of summary judgment is affirmed. Judge Colloton, 
   concurring in part and dissenting in part.