# Joseph H. Bieluch, Jr. v. Bernard Sullivan, Commissioner of Public Safety, I/o

> Court of Appeals for the Second Circuit · July 27, 1993 · 999 F.2d 666

URL: https://www.frixlaw.com/law-library/cases/9484542

## Case

- **Full name:** Joseph H. BIELUCH, Jr., Plaintiff-Appellant, v. Bernard SULLIVAN, Commissioner of Public Safety, I/O, Defendant-Appellee
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** July 27, 1993
- **Citations:** 999 F.2d 666; 1993 U.S. App. LEXIS 19368
- **Precedential status:** Published
- **Opinion:** Dissent by Knapp
- **Judges:** Pratt, Jacobs, Knapp, Southern, York
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9484542

## How later opinions describe it (automated extraction)

- holding speech concerning “tax expenditures” and “town budgets” concerned “matters of utmost public concern”
- applying Pickering balancing to speech on matters of public concern in the course of political community activities unrelated to job
- applying balancing test to speech made in course of political community activities unrelated to work

## Opinion text

WHITMAN KNAPP, Senior District Judge,
dissenting:
As the majority properly notes, the diatribe signed by nine citizens including the First Selectman contains many accusations that we must for present purposes deem to be have been unfounded. However, it sets forth two undisputed facts: (1) plaintiff has entangled the First Selectman in litigation; and (2) he conducted a vituperative campaign accusing him and his colleagues of, among other things, possible fraud.
In Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), an almost unanimous Court, speaking through Justice Marshall, set forth a balancing test by which could be determined the circumstance under which a State employee could exercise first amendment rights in attacking his or her employer despite the danger of jeopardizing the State’s interest in “promoting the efficiency of the public services it performs through its employees.” Id. at 568 , 88 S.Ct. at 1735 . The Court intended its opinion to provide “general lines along which” such a determination should be made. Id. at 569 , 88 S.Ct. at 1735 .
Using the facts before it as illustrative, it emphasized that the statements of the employee whose ease was under consideration were “in no way directed toward any person with whom [he] would normally be in contact in the course of his daily work”; and consequently that “no question of maintaining ... harmony • among coworkers” was presented. Id. at 570 , 88 S.Ct. at 1735 .
Since our plaintiffs conduct was precisely the opposite of that described in Justice Marshall’s guidelines, I can not see how a “reasonable person” in Sullivan’s position would have “known” that plaintiff had a constitutional right which Sullivan was violating by his reaction to such conduct. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 , 102 S.Ct. 2727, 2737-38, 73 L.Ed.2d 396 (1972).
I am also troubled by the form of the majority opinion. It seems to me that the majority is actually saying that, based on all the facts developed in the course of about two years of litigation, it has concluded that Sullivan made a mistake in ordering plaintiffs transfer. I find little in the opinion directed to the question of what a reasonable person in Sullivan’s position would have *674 “known” when the decision to effect the transfer was made.
Although the opinion recognizes (at page 671 lines 2-5) that the critical facts are those “known to Sullivan at the time he acted,” it proceeds to base its findings upon facts largely developed in the course of the ensuing lawsuit.
I therefore respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9484542. Public record. Not legal advice.