Could petition shield outspoken public employees?

Wednesday, October 13, 2010

WASHINGTON — The Supreme Court will again grapple with the contentious issue of First Amendment rights for government employees, this time in the context of the rarely invoked petition clause.

The Court on yesterday granted review in Borough of Duryea v. Guarnieri, which asks whether the right to petition the government shields a public employee from retaliation for filing a grievance.

The Pennsylvania borough filed the appeal after losing in a dispute with onetime police chief Charles Guarnieri. After he was dismissed in 2003, he filed a grievance and was eventually reinstated after arbitration. But disagreements continued and Guarnieri filed a federal lawsuit claiming he had been retaliated against for exercising his right to petition the government.

The 3rd U.S. Circuit Court of Appeals, citing one of its own precedents from 1994, agreed with Guarnieri’s petition-clause argument. Now Duryea has appealed to the Supreme Court. In its petition for review, the borough told the Court that 10 other circuit courts of appeals have ruled that the petition clause offers no protection to government employees when their petitions involve matters of private, not public, concern.

Duryea also noted that in the 1983 decision Connick v. Myers, the Supreme Court rejected a similar argument for protection against retaliation based on the free-speech clause of the First Amendment. Allowing the 3rd Circuit ruling to stand, the borough argued, would elevate the petition clause above the rest of the First Amendment and would permit public employees to “make an end run” around Connick by “couching their expression in the form of a petition.”

The petition was filed by University of Virginia law professor Daniel Ortiz.

Lawyers for Guarnieri urged the Court not to review the case, asserting that only a small number of cases would fit into the category of petitions that the 3rd Circuit ruling would protect. There has been no “avalanche of sham lawsuits or grievances used to concoct Petition Clause protections” since the 3rd Circuit first adopted its position in 1994, wrote Guarnieri’s lawyer, Eric Schnapper, a University of Washington law professor who often represents employees in workplace disputes before the Supreme Court.

The case will be scheduled for argument in the next several months.

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