ir public duties.          The apparent majority of the

court held that when motive or intent is an essential element of a

constitutional tort claim, the plaintiff, in opposition to a motion

for summary judgment based on qualified immunity, has to present

clear and convincing evidence that the defendant acted with an

unconstitutional motive. The court split with regard to the amount

of discovery to be allowed to plaintiffs on the intent or motive

issue before the trial court rules on such motions.                While the

number of concurring opinions makes it difficult to ascertain the
holdings of the court, at least one commentator has stated that

while Judge Williams' "opinion for the court" adopted the clear and

convincing standard, Judge Ginsburg's opinion prevailed as to the

amount    of   discovery      allowed.         Judge   Ginsburg    wrote    that   "a

plaintiff [should be allowed] to pursue limited discovery only upon

a showing that he has a reasonable likelihood of turning up

evidence that a jury could consider clear and convincing proof of

the defendant's unconstitutional motive...." It appears that Judge

Silberman apparently stood alone in his view that there should be

only   an    objective     inquiry      into    the    pretext    of   an   asserted

legitimate motive.       Judge Silberman would apparently hold that if

a defendant articulates any reasonable motive for his actions, he

is entitled to summary judgment unless a jury might find that such

a suggested motive, whether true or false, would be unreasonable.

Apparently a jury would not be allowed to determine the true

motive.      Judge Silberman's view is close to the holding in Foy.

       In note 5 of Foy, the court remarked on the difference between

constitutional torts which require proof of intent or motive and

those that don't.        The court stated:

       But, many constitutional torts do not require the plaintiff to
       prove that the defendant possessed discriminatory intent in
       acting. F