Court delves into history in rare petition case

Wednesday, March 23, 2011

WASHINGTON — The Supreme Court yesterday was treated to an hourlong tour of the history of the rarely invoked petition clause of the First Amendment. By the end of the hour, however, it did not appear the Court was ready to breathe new life into the hoary right of the people to “petition the government for a redress of grievances.”

The discussion came in oral arguments in the case of Borough of Duryea v. Guarnieri. Charles Guarnieri, a fired Pennsylvania police chief, filed a grievance against his discharge and was reinstated under new restrictions on how to perform his job. Guarnieri filed another grievance protesting those restrictions, and then filed suit claiming that he had been retaliated against illegally in violation of his First Amendment petition right. The 3rd U.S. Circuit Court of Appeals, running against the tide of most other state and federal courts, ruled in favor of Guarnieri’s petition-clause claim.

The justices yesterday spent most of the hour wondering whether the petition clause offers any more protection to litigants like Guarnieri than the free-speech clause, which is cited far more often. Under that part of the First Amendment, the high court has sharply limited protection for public employees who speak out on internal workplace matters rather than on matters of public concern.

Daniel Ortiz, a law professor at the University of Virginia who argued on behalf of the Pennsylvania town that Guarnieri sued, urged the Court to apply those same free-speech limits to petition-clause claims, so as not to “constitutionalize, under the Petition Clause, large parts of the law of public employee discipline.”

At first, Justice Antonin Scalia seemed to resist that argument, asserting that “you’re either petitioning the government or not petitioning the government.” Whether the content of the petition had to do with public or private matters, he seemed to suggest, was not of primary importance.

In fact, Scalia suggested, petitioning at the time of the framing of the Bill of Rights involved mostly private matters — not the more public efforts at changing government policy that petitions are used for today.

But Scalia retreated, it seemed, after Ortiz acknowledged that filing a lawsuit was also “definitely a form of petitioning activity.” Ortiz noted that a brief on Guarnieri’s side cited historical research by Professor Carol Andrews of the University of Alabama suggesting that Congress used to be a “clearinghouse” for all kinds of petitions and private bills, which Congress eventually turned over to the courts.

Scalia called that a “slender” argument, adding that if in fact the petition clause protected lawsuits, then “why is it that in the innumerable cases this Court has had concerning what due process of law consists of, we’ve never mentioned what the petition clause requires?” Suddenly, the prospect of giving the petition clause more potency was turning Scalia off.

Joseph Palmore, assistant to the U.S. Solicitor General, also arguing on behalf  of the Pennsylvania town, sought to reinforce those concerns by asserting that upholding the 3rd Circuit ruling would provide “a potential First Amendment claim in federal court to any employee who has filed a grievance on a matter of only private interest.”

Justice Elena Kagan offered a hypothetical that showed she was keeping up with the latest news from Wisconsin. “Suppose a state legislature passes a law depriving all state employees of collective-bargaining rights, and a state employee files a lawsuit saying that this law violates the state constitution, and the state employee is thereupon fired. Is that a matter of public concern or not?”

It probably would be, Palmore said, though the form and content of the complaint would have to be considered.

University of Washington law professor Eric Schnapper argued for Guarnieri. Schnapper has already won two Supreme Court cases this term, including one, Thompson v. North American Stainless, that involved a worker’s retaliation claim.

But his chances of success in the Guarnieri case seemed dimmer. An early sign of trouble was that Chief Justice John Roberts Jr., in a series of questions, kept referring to the free-speech clause as “the First Amendment,” as if the two were equivalent and overwhelmed the petition clause. For example, Roberts said, “All of our cases have equated the Petition Clause reach with that of the First Amendment, and our cases under the First Amendment have made clear that we don’t want to constitutionalize the employee grievance procedure.”

Schnapper said that “every gripe that an individual employee might have, in fact most of them, wouldn’t be covered by the Petition Clause.” But justices seemed unconvinced.

In the 3rd  Circuit, which first ruled in 1994 that employee complaints are protected under the petition clause, there has not been “an avalanche, tsunami, an overwhelming number of new lawsuits,” Schnapper told the Court.

Roberts interjected, “Well, but things will be a lot different if we give the sanction to your theory. I think the idea that it hasn’t happened in 17 years … it’s not very compelling.”

Justice Sonia Sotomayor also said, “People get upset about how they are treated all the time, and they file suits about that treatment.”

Schnapper said history supported his argument that the petition clause protects petitions that are of concern to an individual. “It does not matter whether the public cares a lot.” And court actions are also protected, he said. When the right to petition emerged 600 years or so ago, Schnapper said, “there were not courts to which people could seek redress against the crown … . Over time the courts did become available to do that. Insofar as they did, on our view, the Petition Clause would now apply.”

Justice Anthony Kennedy, a history buff, got into a debate with Schnapper over whether petitions in earlier stages of American history were mostly individual pleas or wider efforts, such as petitions seeking abolition of slavery.

Justice Ruth Bader Ginsburg intervened to say, “Mr. Schnapper, let’s come to the century in which we are now living.” It is not a century in which, based on the arguments, Schnapper probably wanted to be at that moment.