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09-1476 Borough of Duryea v. Guarnieri

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2011//

09-1476 Borough of Duryea v. Guarnieri

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2011//

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Employment
Public employment; Petition Clause

A government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern.

The substantial government interests that justify a cautious and restrained approach to protecting public employees’ speech are just as relevant in Petition Clause cases. A petition, no less than speech, can interfere with government’s efficient and effective operation by, e.g., seeking results that “contravene governmental policies or impair the proper performance of governmental functions,” Garcetti v. Ceballos, 547 U. S. 410, 419. A petition taking the form of a lawsuit against the government employer may be particularly disruptive, consuming public officials’ time and attention, burdening their exercise of legitimate authority, and blurring the lines of accountability between them and the public. Here, for example, Guarnieri’s attorney invited the jury to review myriad details of government decisionmaking. It is precisely to avoid this sort of intrusion into internal governmental affairs that this Court has held that, “while the First Amendment invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’ ” Id., at 420. Interpreting the Petition Clause to apply even where matters of public concern are not involved would be unnecessary, or even disruptive, when there is already protection for the public employees’ rights to file grievances and litigate. Adopting a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the public concern test’s protections and aggravate potential harm to the government’s interests by compounding the costs of complying with the Constitution.

364 Fed. Appx. 749, vacated and remanded.

09-1476 Borough of Duryea v. Guarnieri

Kennedy, J.; Scalia, J., concurring in part and dissenting in part.

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