State and Local Legal Blog

Garcetti, per se

May 29, 2012
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The Garcetti opinion added a new wrinkle to the Pickering-Myers analysis of the free speech protection of public employees. The Court, speaking through Justice Souter, said:

[P]roper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expression made pursuant to official duties.  Garcetti at 424.

The reasoning provided by the Court was that when an employee speaks as an employee, there is “no relevant analogue to speech by citizens who are not governmental employees” and thus the First Amendment protections for citizens should not apply.  The Court said that the memorandum which Ceballos wrote (which got him into trouble in the first place) fell within the penumbra of his official duties and thus this speech was unprotected.

How should subsequent courts define “official duties”?  The Court did not say.

How have courts defined “official duties” in light of Garcetti?  Stay tuned to find out.


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Scaling Back Public Employee’s First Amendment Rights

May 21, 2012
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In 1983, in the case of Connick v. Myers, 461 U.S. 183,  the Supreme Court again addressed public employee First Amendment protection.  In this case, Myers, an attorney, circulated an interoffice “questionnaire concerning internal office affairs”.  She was fired for this action.  The U.S. District Court and the Court of Appeals determined that Myers’ First Amendment rights had been violated; not so the Supreme Court.

In considering the memo, the Court found that the issues addressed in the memo (office morale, transfer policies, etc.) were not matters of public concern and thus did not warrant the Pickering analysis but that the content “greatly affected efficient office operation”.   Consider this language:

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters of only personal interest,…a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency….Connick at 147.

What’s next?  Tune in next week…

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Foundations of Public Employees’ First Amendment Rights

May 14, 2012
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The Supreme Court established the foundation of First Amendment protections for speech for public employees in Pickering v. Board of Education, 391 U.S. 563 (1968).  A factually simple case, Pickering, a school teacher, wrote a letter to the editor of the local newspaper which criticized the proposed uses of bond issue finances and the resulting allocation of fiscal resources.  In response, the School Board fired Pickering.

In litigation filed by Pickering arguing that his firing violated his First and Fourteenth Amendment rights, the Court weighed Pickering’s interest in commenting as a citizen on matters of public interest against efficient administration of government services.  The Court found that the content of the letter to the editor would not interfere with the smooth functioning of the school district, nor would it interfere with Pickering’s ability to effectively teach in the classroom.  Then it determined that the content of Pickering’s letter fell within the purview of “matters of public interest” and determined that it did.

The bright line standard:  If the speech focused on a matter of public concern in a manner that did not impede with the performance of his duties or interfere with the operation of the employer generally, then the employee’s interest in free speech outweighed the government’s efficiency interests and the speech was protected.

Following Pickering, the Supreme Court considered Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), a case which arose out of Mississippi.  In this case, Givhan privately expressed complaints regarding the lack of desegregation of the school district to her principal.  She was fired as a result of this private complaint.  The U. S. District Court of Appeals for the Fifth Circuit determined that Givhan’s speech did not warrant protection because it was made in a private forum and to a superior while not under duress.  The Supreme Court reversed the Fifth Circuit, noting that statements made in a private forum to a supervisor did not remove First Amendment protections.  Writing for the Court, Justice Rehnquist said:  “Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his view before the public.  We decline to adopt such a view of the First Amendment.

The bright line standard:  the private nature of a public employee’s speech does not preclude First Amendment protection.

However,  by the 1980s, the Court was scaling back the availability of First Amendment protection to public employees.  Want to know how?  Stay tuned next week.


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How about that tort reform?

May 11, 2012
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Almost a decade after “tort reform”, Mississippi is reaching where the rubber meets the road.  Last year the 5th Circuit asked the Mississippi Supreme Court to rule on the law limiting non-economic damages to $1 million in a civil case is constitutional.  The defendant in that case is Sears and Roebuck Co.  The plaintiff, Learmonth, sustained injuries and was awarded $4 million in damages, of which the parties agreed that $2.2 miooion were non-economic.  The trial judge reduced the $2.2 to $1 million and Learmonth appealed that decision.  Examining the issue, Chief Judge Edith H. Jones of the 5th Circuit wrote:  “This is an important question of state law determinative of the non-economic damages issues in this case for which there is no controlling precedent from the Supreme Court of Mississippi.”

This certified question to the Mississippi Supreme Court remains pending (since January 2011) and I suspect no response will issue until after the November elections.  But, perhaps in an effort to urge on a response, Judge Webster ruled in a Coahoma County case that a $6 million non-economic damage verdict in the death of a child in an apartment fire was a valid non-economic award because the 2004 tort legislation is an unconstitutional legislative invasion of the authority of the judicial branch of government.  Judge Webster acknowledged the pending certified question and indicated that he had waited for the outcome before he ruled in this case, but the parties to the litigation in Coahoma County needed a decision and therefore he ruled.

We need to watch carefully for what the Supreme Court does with the certified question and its effect on literally dozens of cases like Judge Webster’s which are on appeal.




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Avian Flu (H5N1) in the News Again

May 11, 2012
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Since 2006 I have been talking relatively irregularly about the danger of Avian Flu as the next pandemic that will surge around the world. Here’s an example:

And folks have irregularly laughed at me for my concerns.

So I felt a bit validated when I determined that research going on in Rotterdam by Ron Fouchier, who has worked on vaccines for five different avian flu mutations currently circulating in the wild, published a paper on transmission to ferrets.  Ferrets work as a good surrogate for humans, Fouchier believes, because H5N1 kills about half the ferrets it infects, as well as about half the humans — a mortality rate 5 times that of the Spanish Flu epidemic of 1918-19.

Interestingly, in December, authorities in our country had recommended withholding the results of Fouchier’s research, as well as the concomitant research by Yoshihiro Kowaoka a the University of Wisconsin-Madison (both funded by the American National Institutes of Health.  And perhaps here’s the rub:  Dr. Fouchier and his team created a mega-flu virus by combining those strains already loose in the environment as a portion of his research.  Now he wants other scientists to be aware of his mega-flu variation in order to begin to research ways to stop the pathogen.  The justification for the restriction was that the research was more valid and vital for military use than for current civilian ends.

The excitement generated this past week was a result of restrictions that the Dutch have placed on the dissemination of Dr. Fouchier’s research.  I, myself, an excited about the dissemination of these pathogens and I do not want any restrictions which would cause researchers not to avail themselves of cures and preventive measures.

The fact is that humans have an incredible ability to respond to infections that they have previously been exposed to.  Our immune system works somewhat like muscle memory when it runs into a pathogen to which we have already encountered.  But it is pathogen mutation as well as a variety of host populations which, although not human, can, have an ability to translate into a human pathogen.

I reiterate my warning that avian flu and its mutant strains are not only out there, but have already evidenced their ability to mutate into pathogens which can invade human host populations.  The rapidity with which the mutation of a pathogen into a human host population can spread can only be speculated upon but most researchers suggest that a serious outbreak of H5N1 in this country, which mutates to human hosts, could bring communities to their knees within 8 weeks.

We live with all kinds of terrors for which it is difficult for us to prepare.  This one is not.  Let’s get ready.

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Immigration: Following Arizona

May 10, 2012
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The Arizona immigration bill is now in the breast of the US Supreme Court.  This is the most conservative of the various states’ tries to crackdown on immigration.    However, may other states, including our own, are shaping or have shaped their take on state immigration legislation by using the Arizona mold.

The large question is whether the Arizona law creates impermissible intrusions on Congress’s power to set immigration policy or the executive’s ability to implement the policy established by the legislative branch.  But there are many sub-parts of this inquiry.  For example, the 9th Circuit has already blocked some of the key subsidiary positions.  These are a few of those aspects of the Arizona bill that are currently blocked from implementation by the federal courts:

  • A requirement that state and local law enforcement verify citizen status of anyone stopped, detained or arrested when there is “reasonable suspicion” that the individual is in the US illegally;
  • A requirement authorizing law enforcement to make arrests without arrest warrants when there is “probable cause to believe…that the person to be arrested has committed an offense that would make the person eligible to be removed from the US”
  • A requirement that noncitizens carry documents to prove they are in the country legally
  • A requirement making it a state crime for a person who is not lawfully in country to work or seek work here.

It follows that all states wrestling with the immigration issue should follow the course of the Arizona statute and be instructed by it’s outcome at the U.S. Supreme Court.

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A Second Look at Garcetti v. Ceballos

May 7, 2012
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In 2006, the Supreme Court issued Garcetti v. Ceballos, 547 U.S. 410 (2006).  This case altered public employees’ right to speech under the First Amendment, explaining that the First Amendment only protects speech made outside the course of an employee’s “official duty”.  The Court, of course, did not define “official duty”.  Six years later, several lower federal courts have defined “official duty” and their definitions are worthy of note.

The lower courts have analyzed “official duty” in various ways and have focused on two basic techniques.  One is to employ the chain-of-command analysis, which considers chiefly the forum in which the communication is made and the audience to whom the communication is directed.  The second, the assigned-responsibility analysis, focuses on the job responsibilities associated with the employee’s official position and job responsibilities and how the speech in question relates to that position and those responsibilities.

Interested in more about your rights of speech as a public employee?  Tune in next week.

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