Tuesday, October 19, 2010

Supreme Court May Decide Whether the First Amendment’s Petition Clause Trumps Garcetti

On October 12th, the Supreme Court took cert in Guarnieri v. Borough of Duryea, 364 Fed. Appx. 749 (3d Cir. 2010), to resolve a circuit split over whether the First Amendment protects a public employee from retaliation for petitioning the government about a matter of purely private concern.  All circuits, except the Third Circuit, have held that in the retaliation context “a public employee’s petition, like his speech, is constitutionally protected only when it addresses a matter of public concern.”  Kirby v. City of Elizabeth City, 388 F.3d 440, 448 (4th Cir. 2004); accord Jenkins v. Rock Hill Local Sch. Dist., 513 F.3d 580, 587 (6th Cir. 2008); Martin v. City of Del City, 179 F.3d 882, 887-889 (10th Cir. 1999); Grigley v. City of Atlanta, 136 F.3d 752, 755-756 (11th Cir. 1998); Tang v. Department of Elderly Affairs, 163 F.3d 7, 11-12 (1st Cir. 1998); Rendish v. City of Tacoma, 123 F.3d 1216, 1220-1223 (9th Cir. 1997); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993); Hoffmann v. Mayor of Liberty, 905 F.2d 229, 233 (8th Cir. 1990); Belk v. Town of Minocqua, 858 F.2d 1258, 1261-1262 (7th Cir. 1988); Day v. South Park Indep. Sch. Dist., 768 F.2d 696, 701-703 (5th Cir. 1985). All state courts of last resort that have addressed this question also agree that “in order for a public employee to have a viable § 1983 claim [under the Petition Clause], the petition must address a matter of public concern.”  Pratt v. Ottum, 761 A.2d 313, 320-321 (Me. 2000); accord Harris v. Mississippi Valley State Univ., 873 So. 2d 970, 984 (Miss. 2004); McDowell v. Napolitano, 895 P.2d 218, 225-226 (N.M. 1995); Smith v. Bates Technical Coll., 991 P.2d 1135, 1145-1147 (Wash. 2000).  The Third Circuit has rejected those holdings, stating that “a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.”  Guarnieri, 364 Fed. Appx. at 753 (citing Foraker v. Chaffinch, 501 F.3d 231, 236 (3d Cir. 2007); San Filippo v. Bongiovanni, 30 F.3d 424, 435-442 (3d Cir. 1994)).  See also Julie M. Spanbauer, The First Amendment Right to Petition Government for a Redress of Grievances:  Cut from a Different Cloth, 21 Hastings Const. L. Q. 15 (1993); Norman B. Smith, “Shall Make No Law Abridging . . .”:  An Analysis of the Neglected, But Nearly Absolute, Right of Petition, 54 U. Cin. L. Rev. 1153 (1986).

Paul Secunda on the Workplace Prof Blog points out that a similar issue arises over whether the Connick / Pickering / Garcetti framework should apply in association claim cases under the First Amendment.  Professor Secunda in his article entitled Reflections on the Technicolor Rights in American Labor and Employment Law, states:  “There is some dispute over whether an association claim must relate to a matter of public concern before the Pickering balance applies. See Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138 n.3 (not reaching the question but observing that “[f]ive Circuits have adopted the public concern requirement for freedom of association claims and two have not”).”  See also D’Angelo v. School. Bd. of Polk County, Fla., 497 F.3d 1203, 1212 (11th Cir. 2007) (holding that Garcetti does apply to associational claim); Cindrich v. Fisher, No. 05-1348, 2007 WL 1576403, at *7 (W.D. Pa. May 31, 2007) (same); William A. Herbert, “The First Amendment and Public Sector Labor Relations,” The Labor Lawyer Vol. 19, No. 3 (2004):  325-51.

A tip of the hat to Paul Secunda and the Workplace Prof Blog for bringing this to our attention.

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