June 20, 2011

Supreme Court Decides Borough of Duryea v. Guarnieri

On June 20, 2011, the Supreme Court decided Borough of Duryea v. Guarnieri, No. 09-1476, holding that a government employer's allegedly retaliatory action against an employee does not give rise to liability under the Petition Clause of the First Amendment unless the employee's petition relates to a matter of public concern.

Charles Guarnieri filed a union grievance challenging his termination as chief of police for the Borough of Duryea, a small town in northeastern Pennsylvania. An arbitrator ordered his reinstatement after a disciplinary suspension. Upon his return to the job, the borough council issued 11 directives instructing him in the performance of his duties. He filed a second union grievance challenging the directives, and testified that, because of them, his "coming back wasn't a warm welcome feeling." The second arbitration also produced a mixed result, partially in his favor.

After the second arbitration, Guarnieri filed a federal lawsuit against the borough, its council, and some individual council members claiming that his first union grievance was a petition protected by the Petition Clause and that the post-reinstatement directives were retaliation for that protected activity. A jury awarded him almost $100,000 in compensatory and punitive damages, and the district court awarded $45,000 in attorney's fees. On appeal, the Third Circuit affirmed, concluding 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."

The Supreme Court granted certiorari to resolve a conflict in the Courts of Appeals, and vacated and remanded the decision of the Third Circuit.

In prior cases, the Court has established that when a public employee sues a government employer under the First Amendment's Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern. Even if an employee does speak as a citizen on a matter of public concern, courts balance the First Amendment interest of the employee against the state's interest, as an employer, in promoting the efficiency of the public services it performs through its employees. The Guarnieri Court also stated that its "precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes."

The question presented in Guarnieri was whether the history and purpose of the Petition Clause justify the imposition of broader liability when an employee invokes its protection instead of the protection afforded by the Speech Clause. The Court recognized that there "may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis," and that "[o]utside the public employment context, constitutional protection for petitions does not necessarily turn on whether those petitions relate to a matter of public concern," but held that "claims of retaliation by public employees do not call for this divergence."

The Court held that the framework used to govern Speech Clause claims by public employees would be applied to the Petition Clause, thereby protecting both the interests of the government and the First Amendment rights. "The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts."

The Court remanded the case to the Third Circuit for a determination of how this analytical framework would apply in the context of this case.

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in the judgment. Justice Scalia filed an opinion concurring in the judgment in part and dissenting in part.

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