Thursday, December 2, 2010

2nd Circuit gives one to the public employees

Two strands of First Amendment law bob to the surface in this case. The plaintiff worked for Family Court in Onondaga County, where she was asked by an administrative judge to help defeat another Family Court judge's candidacy for State Supreme Court. Plaintiff said she would not "dish dirt" on the judicial candidate. After she said no, plaintiff suffered various indignities in the workplace, including a forced demotion. Does she have a case? Yes.

The case is Morin v. Tormey, decided on November 16. Both sides litigated this issue as if it implicated Garcetti v. Ceballos, 547 U.S. 410 (2006), which holds that you have no First Amendment case if your job-related speech arises from your official duties. Garcetti is the kiss of death in public-employee free speech claims, as the courts have interpreted Garcetti to swallow nearly all speech that in some way relates to your job duties. That is particularly the case in the Second Circuit.

But the Court of Appeals says this is not a Garcetti case at all, because unlike the usual Garcetti case, Morin did not express any viewpoints or opinions when she refused to dive into the political sewer with her superiors. Instead, this case implicates a different strand of public employee First Amendment law prohibiting the government from forcing you to engage in political activities. We call these Branti cases, after Branti v. Finkel, 445 U.S. 507 (1980), which prohibits retaliation based on political affiliation (or non-affiliation, as this case shows). Defendants are not entitled to qualified immunity under clearly-established law, i.e., Branti and its progeny.

The Second Circuit also rejects defendants' argument that the "policymaker" exception kills Morin's case. There is such an exception, which holds that high-ranking public employees with discretionary duties can in fact be disciplined and even terminated for refusing to get political. This is a complicated inquiry, as shown by the multi-factor test in Vezzetti v. Pellegrini, 22 F.3d 483 (2d Cir. 1994), a case I read every other day in the 1990's when I handled cases like this. The Vezzetti factors are sweeping, but Morin gets around it because no one would reasonably mistake her for a policymaker, or someone whose inherent job duties allow her to, for example, influence governmental programs or speak publicly on governmental policy. Put another way, party affiliation is not an appropriate requirement for the effective performance of her duties. It's been a while since the Second Circuit dusted off Vezzetti, but it's still good law, and it helps Morin get a trial.

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