Opinion analysis: Limits on “Petition Clause”
on Jun 20, 2011 at 3:56 pm
Analysis
Solemnly fretting that lawsuits by government employees challenging their bosses might disrupt official activity by, among other ploys, an emotional appeal to a jury to think of the employee’s “little white fluffy dog,” the Supreme Court on Monday put a strict new limit on court cases based on the Constitution’s right-to-petition clause.  A public worker complaining of retaliation on the job, the Court decided, may sue under that clause, but only if the claim does not involve an “ordinary workplace grievance,” but rather involves a policy matter of community concern.
The ruling in Borough of Duryea v. Guarnieri (09-1476) makes the understanding of the scope of Petition Clause cases quite closely match the scope of the First Amendment’s Free Speech Clause. Just as a public employee can go to court with a claim that his or her bosses intruded on free-speech rights only if the complaint involves a “matter of public concern,” the same is true when the employee opts to bring the lawsuit under the right to petition government to “redress” a grievance, the Court said in an opinion by Justice Anthony M. Kennedy.
“The government’s interest in managing its internal affairs requires proper restraints on the invocation of rights by employees when the workplace or the government employer’s responsibilities may be affected,” Kennedy wrote. “There is no reason to think the Petition Clause should be an exception.”
The Court stressed that it was only ruling on lawsuits by public employees suing over alleged retaliation at their jobs, and thus “this case provides no necessity to consider the correct application of the Petition Clause beyond that context.” In fact, the Kennedy opinion hinted that the Court probably would not limit the use of the Petition Clause to disputes over “matters of public concern,” if the complaining person was a private citizen and not a government employee.
Even so, Kennedy suggested that the Petition Clause, based on its illustrious history going back to Magna Carta in 1215, has probably served the public interest more often when the complaint to the government (or the Crown) was on a matter of “interest to the community as a whole.” When a public employee joins in that kind of appeal to government, with a grievance that might well be shared by other citizens as citizens, the employee can exercise the same right as private citizens, the Court made clear. But if the public employee is only challenging an action taken against him or her in her employee capacity, that is beyond what the Clause will allow, the Court emphasized.
The ruling came in a case growing out of an unpleasant relationship within the local government of the small Pennsylvania town of Duryea, a community of about 4,600 people nine miles south of Scranton in the northeastern part of the state.  The running feud was between the town’s police chief, Charles J. Guarnieri, and the Borough Council. The Council fired him, but he won his job back in arbitration. The Council, apparently not reconciled at having him back on the job, imposed a series of limitations of how he could do his official work. Ultimately, he sued, claiming retaliation. The Third Circuit Court ultimately upheld his victory, calculating his money award at $24,358.
That Circuit Court is the only court at its level that has allowed Petition Clause lawsuits to be filed without the dispute being over a matter of public concern. Even a purely private grievance, such as Guarnieri’s beef about his mistreatment at the hands of the Council, is a proper subject for a lawsuit under that Clause, the Circuit Court ruled.
That is the ruling the Supreme Court oveturned Monday, finding a need to base such a lawsuit on a public policy issue of wider concern than the workplace.  The Court did not finally resolve Guarnieri’s case, sending it back to the Third Circuit to apply the new ruling.
In the course of analyzing why a purely private complaint in court against a governing body might be quite disruptive of governmental operations, the Kennedy opinion cited the appeal to the jury by Guarnieri’s lawyer, urging the jurors to take into account Guarnieri’s “little dog Hercules, little white fluffy dog and half Shitsu.” That is exactly the kind of “intrusion” on government operations, Kennedy wrote, that has led the Court to limit public employees’ right to sue over workplace complaints.
Justice Kennedy’s opinion had the full support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
Justice Clarence Thomas joined only the result, overturning the Third Circuit, while arguing that Petition Clause lawsuits by public employees should be allowed only when they make a claim against the government in its role as the sovereign, rather than simply as the worker’s employer.
Justice Antonin Scalia argued in a partial dissent that a lawsuit probably is not a form of “petition” within the meaning of that First Amendment clause. He said that notion was “quite doubtful.” He also disagreed with the conclusion that the “public concern” limitation should be incorporated into the Petition Clause.
