Misjuns argues 'bias' led to dismissal of lawsuit against city (2024)

Lynchburg City Councilman Martin Misjuns asked a federal appeals court on Friday to overturn a lower court’s decision, and reinstate his lawsuit against the City of Lynchburg in which he argued the city violated his rights to free speech and religion when he was terminated from the city’s fire department.

The case revolves around several political cartoons Misjuns posted on one of his Facebook pages in 2021 that local LGBTQ organizations and Lynchburg community transgender members said were transphobic.

Misjuns, who was a captain in the Lynchburg Fire Department, was suspended from his job in March 2021 and then terminated in October 2021.

In a 44-page brief filed with the U.S. Court of Appeals for the Fourth Circuit in Richmond on Friday, Misjuns’ lawyers — Rick Boyer of Intregity Law Firm PLLC and James Fairchild of Fairchild & Yoder PLLC — spent several pages contrasting their client’s treatment with how the city handled Lynchburg Fire Chief Gregory Wormser attending a Black Lives Matter protest in July 2020 in full uniform.

“Since Wormser’s speech is [at least judging by the number of complaints alleged] more publicly popular, it is protected. Since Appellant’s has drawn complaints [whether spontaneous or not], it is unprotected,” Misjuns’ lawyers said in the appeal.

The lawyers argued that the U.S. District Court for the Western District of Virginia erred earlier this year when it dismissed all of Misjuns’ claims against the city. They want the case remanded to the District Court so that Misjuns’ claims can be heard again.

“The court’s repeatedly demonstrated bias caused it to apply the wrong legal standard, and to depart from the Supreme Court’s oft-expressed First Amendment jurisprudence,” Misjuns’ lawyers said.

According to the briefing schedule, the City of Lynchburg has about 30 days, or until Nov. 19, to file a reply brief to Misjuns’ appeal. Misjuns’ lawyers will then have 21 days to submit a final brief after the city’s reply brief is filed. The appeals court will then decide whether to schedule oral arguments in the case.

Misjuns was elected to Lynchburg City Council in November 2022, where he now serves as one of the body’s three at-large members. Misjuns, a Republican, has been censured twice over the past year by city council, where Republicans hold a 5-2 majority.

In April 2023, U.S. District Court Judge Norman Moon dismissed most of the claims in Misjuns’ lawsuit, but allowed his First Amendment claims against the city to proceed.

U.S. District Court Judge Robert Ballou, who took over the case from Moon, noted in a July 17 opinion that the court in April 2023 allowed Misjuns’ claim to proceed against Lynchburg “based on the actions taken by the individual defendants in their official capacities.”

“Such a claim is not permissible,” Ballou said in the opinion dismissing the final claim in the lawsuit, only a week before the case was scheduled to go to a jury trial.

In his lawsuit, Misjuns argued he was terminated from the fire department in violation of his constitutional rights and in retaliation for expressing protected political and religious speech on his Facebook social media page.

At the time he posted the political cartoons, Misjuns maintained two Facebook pages: one a “personal” page and one a “public figure” page identifying him as “Ward I Chair – Lynchburg Republican City Committee.” Neither page identified Misjuns as a fire captain, or as a city employee, according to the brief filed with the appeals court.

On Jan. 26, 2021, Misjuns posted on his public figure Facebook page four editorial cartoons drawn by nationally syndicated cartoonist A.F. Branco. Two of the cartoons depicted a person with facial hair coming out of a women’s bathroom to the consternation of female figures drawn nearby.

Another cartoon depicted a large person with facial hair and dressed in women’s clothing saying, “Hey federal government! Get out of our bedroom… We need you in the bathroom.” The fourth depicted an exaggeratedly large person with an “Equality Act” T-shirt playing sports against an exaggeratedly small woman who yells, “Not fair!”

Above the cartoons on his public figure Facebook page, Misjuns posted his own explanatory statement: “#BidenErasedWomen — Coming to your daughter’s high school locker room in the near future.”

A few days later, Misjuns posted a meme on his public figure Facebook page that read: “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God.”

Misjuns contended the meme expressed his “deeply held religious beliefs.”

In the appeals court filing on Friday, Misjuns’ lawyers said that Lynchburg’s employee handbook protects the rights of city employees to engage in protected political speech, but that such activities must be conducted on personal time.

All of Misjuns’ speech took place “off duty, out of uniform and not on the premises of [his] employment with the City,” his lawyers wrote.

Throughout his litigation against the city, Misjuns has noted that Wormser engaged in political activity by attending a Black Lives Matter protest at Miller Park on July 6, 2020, just over a month after a Minneapolis police officer killed George Floyd, in full Lynchburg Fire Department uniform.

Walter Erwin, who was city attorney at the time, said it did not violate any code for a city official to be at a city event in uniform, and engaging with the community. While he said public employees are not allowed to engage in partisan political activity in uniform, he said the Black Lives Matter event was not a partisan political activity.

In Friday’s filing with the appeals court, Misjuns’ lawyers said his “claim for violation of Equal Protection should be reinstated,” and that the “district court erred in finding that Misjuns and Wormser were not similarly situated. The artificial ‘classifications’ invented by the City, and adopted by the district court were utterly irrational.”

Boyer said he is “fairly optimistic” that the appeals court will rule in Misjuns’ favor, and send the case back to the District Court, where he expects the case will then go to trial before a jury.