# Acevedo v. City of Muskogee

> Supreme Court of Oklahoma · April 11, 1995 · 66 O.B.A.J. 1341

URL: https://www.frixlaw.com/law-library/cases/9564486

## Case

- **Full name:** Art ACEVEDO, Appellant, v. the CITY OF MUSKOGEE, a Municipal Corporation, Appellee
- **Court:** Supreme Court of Oklahoma
- **Decided:** April 11, 1995
- **Citations:** 66 O.B.A.J. 1341; 897 P.2d 256; 1995 OK 37; 1995 Okla. LEXIS 49; 1995 WL 170222
- **Precedential status:** Published
- **Opinion:** Concurrence by Opala
- **Judges:** Kauger, Wilson, Hodges, Lavender, Simms, Hargrave, Opala, Watt, Chapel, Summers
- **Cited by:** 8 later opinions in the Frix Law Library

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## Opinion text

OPALA, Justice,
concurring.
Today’s opinion holds that because his disruptive statements are unprotected by the First Amendment to the United States Constitution, Art Acevedo’s [Acevedo] dismissal from employment by the City of Muskogee [City] was not in breach of his right to free speech. 1 The court correctly applies a First Amendment balancing test and notes that Waters v. Churchill was decided by a plurality. 2 I agree that Acevedo’s First Amendment right to communicate matters of public concern was outweighed by the City’s interest, qua employer, in promoting the efficiency of its police department. 3 The pronouncement rests upon the standards of Connick v. Myers, 4 the U.S. Supreme Court’s last prece-dential pronotmcement on the subject, which articulates the federal-law test still in force today. 5 When measured by Connick, Acevedo’s discharge is not constitutionally offensive. I hence concur in the court’s opinion but write separately to explain why Waters may not guide our consideration of Acevedo’s claim and to comment on his failure to press the protections afforded by this State’s free-speeeh guarantee, Art. 2, § 22, Okl. Const. Inasmuch as neither party invoked the provisions of § 22, 6 1 would decide this case solely on First Amendment grounds.
I
THE ANATOMY OF LITIGATION
Acevedo was dismissed, after a pretermin-ation hearing, from his job as a detective in the City’s police department. The employment termination was grounded on certain statements Acevedo had made to junior officers, intimating misconduct and widespread conniption in the department. It was the City’s position that these comments and accusations breached department and merit system rules and undermined the morale as well as effectiveness of the force. Acevedo appealed to the City Merit System Board [Board], which upheld his dismissal. He *264 sought district court review, urging he had been fired for engaging in constitutionally protected speech. The trial court affirmed the Board’s decision. The Court of Appeals ruled that Acevedo’s free-speech rights had not been unconstitutionally infringed. 7
II
THE WATERS “REASONABLE INVESTIGATION” ELEMENT
Connick teaches that for government employee speech to be protected by the First Amendment, the employee’s interest in expressing himself (or herself) on a matter of public concern must not be outweighed by the government’s own interest in promoting the efficiency of public services rendered through its employees. 8 The Waters plurality held that in pretennination stages the government employer must conduct a probe to ascertain if the First Amendment’s mantle extends to the offending employee’s utterances in controversy and to make its inquiry part of the documentation that is to accompany the dismissal action. 9 The discharge record so compiled must reveal the employer had pressed a reasonable inquiry and came to be objectively satisfied that its dismissal action would not violate First Amendment guarantees. The four-member plurality who endorsed the addendum calling for a pre-dismissal internal inquiry rested the new requirement on a need to ensure proper procedural safeguards in the critical pre-termi-nation stage. 10 I concur in the court’s conclusion that Acevedo’s communications here in contest underwent a pre-discharge investigation that meets the extraconstitutional 11 Waters plurality test.
Ill
ACEVEDO CANNOT SECURE THIS COURT’S REVIEW BASED ON THE WATERS PLURALITY STANDARDS
Although Acevedo sought a review upon the Waters’ standards, we cannot comply with his request. Were we to follow that plurality opinion we would be impermissibly dichotomizing federal law within this State. 12 *265 No plurality opinion is precedential. 13 It represents a minority view with no binding effect either for the federal- or the state-court systems. 14 This court’s pronouncements of federal law must never vary, however slightly, from precedential U.S. Supreme Court jurisprudence. In short, Waters may neither infhience nor govern our exposition of federal constitutional law. Today’s opinion avoids this pitfall by faithfully tracking Connick, which controls this case.
IV
ACEVEDO CANNOT SECURE THIS COURT’S REVIEW ON THE STANDARDS OF ART. 2, § 22 OKL. CONST. 15
Had Acevedo raised any state constitutional argument, I would not be hesitant today to adopt an expanded version of the Waters plurality command as this State’s prophylactic rule of due process under Art. 2, § 7 Okl. Const., 16 to be engrafted upon the free-speech guarantee of Art. 2, § 22 Okl. Const., which would provide added protection for state and local government employees against constitutionally impermissible dismissal, based solely on speech, by mandating a pre-discharge (or pre-suspension) adversary administrative hearing to be held before a neutral and detached agency official. 17 In Branti v. Finkel 18 the Court emphasized that before terminating an employee who claims First Amendment protection the government must demonstrate some overriding interest of vital importance in maintaining its efficiency, which outweighs any benefit to be derived from free speech. 19 I would put the State under like burden when the § 22 free-speech guarantee is invoked.
I would additionally observe that in administering the State’s fundamental law the employee’s often undisciplined conduct (in breach of internal regulations) must never be overfocused. Having to retain in public employment an impatient, though thoroughly principled “busybody loudmouth” — one with great zeal to expose covert wrongdoing — is not too large a price to pay for a genuinely valuable contribution to unmasking and rectifying political corruption. In the defense of government’s legitimacy some degree of individual insubordination should be forgiva *266 ble. There are ways to deal with it other than through ridding the workplace of those often conscientious and idealistic individuals who show little or no tolerance for questionable practices of officialdom. In their day-today venue, whistleblowers may seldom be the most admired people, but the cold neutrality of our balancing process will not allow their value to be diminished or ignored. The law must be ever mindful that the people as a whole reap a very significant benefit from human efforts that persuade or coerce government to abandon lawlessness and resume a law-charted course of operational management. Nothing less will do in a Nation like ours which takes enormous pride in its commitment to the rule of law. Unlike the present-day federal law, our own jurisprudential exposition of Art. 2, § 22 Okl. Const, should not be inhospitable to free-speech protection for public employee utterances legitimately connected with uncovering or targeting clandestine government operations of a legally-clouded nature. The State’s public policy weighs heavily against impunity for official wrongdoers. 20 Nor does it approve of chilling that free speech which would put a premium on government secrecy.
Y
SUMMARY
The court is correct in measuring Acevedo’s rights by reference to precedential federal case law and in upholding his dismissal. Its decision, which is entirely consistent with the Connick balancing-of-interests test, rightly notes that this State is not bound by the Waters plurality’s call for a documented internal pretermination inquiry. Waters, which garnered only four votes, is not entitled to this court’s obedience as a binding federal-law norm. Federalism does not require us to adopt standards more generous than those of Connick Had Acevedo, at some critical stage of this case, invoked state constitutional rights, I would today extend to him the opportunity for a full-scale administrative adversary pretermination hearing at which the State would be called upon to demonstrate some vital overriding interest that would clearly outweigh Acevedo’s First Amendment claim in a matter of public concern.
. Amend. 1, U.S. Const., provides in pertinent part:
"Congress shall make no law ... abridging the freedom of speech ....” (Emphasis added.)
Freedom of speech is among the fundamental personal rights and "liberties” protected from state impairment by the Due Process Clause of the Fourteenth Amendment. Gitlow v. People of the State of New York, 268 U.S. 652, 666-68 , 45 S.Ct. 625, 630 , 69 L.Ed. 1138 (1924); Stromberg v. People of the State of California, 283 U.S. 359, 366-69 , 51 S.Ct. 532, 535 , 75 L.Ed. 1117 (1931).
. 511 U.S. -, -, 114 S.Ct. 1878, 1884 , 128 L.Ed.2d 686 (1994) (opinion by O'CONNER, J., in which REHNQUIST, C.J., and SOUTER and GINSBURG, JJ., joined).
. See Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 569-70 , 88 S.Ct. 1731, 1735 , 20 L.Ed.2d 811 (1968).
. 461 U.S. 138, 141-42 , 103 S.Ct. 1684, 1687 , 75 L.Ed.2d 708 (1983).
. Connick, 461 U.S. 138 , 103 S.Ct. 1684 , supra note 4 at 141-42, 103 S.Ct. at 1687 (citing, Pickering, 391 U.S. 563 , 88 S.Ct. 1731 , supra note 3 at 566-68, 88 S.Ct. at 1734 ). See also United States v. National Treasury Employees Union, - U.S. -, -, 115 S.Ct. 1003, 1018 , 130 L.Ed.2d 964 (1995), where the Court invoked the Connick balancing test to void a regulation proscribing federal employees' acceptance of honoraria for public speeches.
. Art. 2, § 22 Okl. Const., provides in pertinent part:
"Every person may freely speak, write, or publish his sentiments on all subjects ...(Emphasis added.)
See State ex rel. Dept. of Transp. v. Pile, Okl., 603 P.2d 337, 340, 341 (1979); Hennessey v. Independ. Sch. Dist. No. 4, Lincoln Cty., Okl., 552 P.2d 1141, 1144 (1976), cert. denied, 453 U.S. 922 , 101 S.Ct. 3158 , 69 L.Ed.2d 1004 (1981).
. The Court of Appeals invoked sua sponte and then held unavailable the protections of Art. 2, § 22 Old. Const., supra note 6.
. Connick, 461 U.S. 138 , 103 S.Ct. 1684 , supra note 4 at 141-42, 103 S.Ct. at 1687 (citing Pickering, 391 U.S. 563 , 88 S.Ct. 1731 , supra note 3 at 567-68, 88 S.Ct. at 1734 ).
. Waters, 511 U.S. -, 114 S.Ct. 1878 , supra note 2 at -, 114 S.Ct. at 1889 .
. Id. at -, 114 S.Ct. at 1884 .
. Waters, 511 U.S. -, 114 S.Ct. 1878 , supra note 2 at -, 114 S.Ct. at 1895 (SCALIA, J„ with whom KENNEDY, and THOMAS, JJ., joined, concurring in judgment). Justice Scalia's separate writing decried the plurality’s creation of an internal investigation requirement, arguing that it would impose an unworkable burden upon public employers. It also expressly disavowed the plurality’s notion that, before terminating the employee, the government employer must "reasonably believe” that the employee's implicated speech is unprotected.
"Judicial inquiry into the genuineness of a public employer’s asserted justification for an employment decision — be it unprotected speech, general insubordination, or laziness— is all that is necessaiy to avoid the targeting of "public interest” speech.... Our cases have hitherto considered this sort of inquiry all the protection needed.” (Emphasis added.) Waters, [511 U.S. -], 114 S.Ct. 1878 , supra [at -, 114 S.Ct.] at 1895 (SCALIA, J., with whom KENNEDY, and THOMAS, JJ., joined, concurring in judgment), citing Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977).
.Absent any United States Supreme Court pronouncement, we follow as a matter of comity the substantive federal law decisions by the United States Court of Appeals for the Tenth Circuit and that court’s constitutional jurisprudence applicable to the states. Phillips v. Williams, Okl., 608 P.2d 1131, 1135 (1980), cert. denied sub nom., 449 U.S. 860 , 101 S.Ct. 162 , 66 L.Ed.2d 76 (1980). See also Lepak v. McClain, Okl., 844 P.2d 852 , 860 n. 8 (1980) (Opala, V.C.J., concurring in result); McLin v. Trimble, Okl., 795 P.2d 1035 , 1047 n. 17 (1990) (Opala, V.C.J., dissenting); Blanton v. Housing Authority, Okl., 794 P.2d 412 , 418 n. 5 (1990) (Opala, V.C.J., concurring in judgment). The voluntary deference we pay to our circuit’s jurisprudence prevents federal law within the State of Oklahoma from becoming dichotomized into one corpus of norms administered by federal courts sitting within this State and another body of precepts to be followed in Oklahoma state courts.
. By force of the Supremacy Clause, Art. 6, cl. 2, U.S. Const., state courts are bound by the U.S. Supreme Court’s jurisprudential exposition of federal law. See United States v. Home Federal S. & L. Ass'n of Tulsa, Okl., 418 P.2d 319, 325 (1966); Dean v. Crisp, Okl.Crim., 536 P.2d 961, 963 (1975).
. Though a ruling by a divided U.S. Supreme Court is conclusive for the parties then before it, the opinion is not authority for the resolution of any other cases either in that court or in any inferior court. No opinion garnering fewer than five votes can be considered precedential authority. See United States v. Friedman, 528 F.2d 784, 788 (10th Cir.1976), citing Hertz v. Woodman, 218 U.S. 205, 213-16 , 30 S.Ct. 621, 623 , 54 L.Ed. 1001 (1910); United States v. Pink, 315 U.S. 203, 214-16 , 62 S.Ct. 552, 558 , 86 L.Ed. 796 (1942); see also in this connection, John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 Duke L.J. 59 ; Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv.L.Rev 1127 (1981); Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Colum.L.Rev. 756 (1980).
. Art. 2, § 22 Okl. Const., supra note 6.
. Art. 2, § 7 Okl. Const, provides:
“No person shall be deprived of life, liberty, or property, without due process of law." (Emphasis added.)
. See in this connection Gagnon v. Scarpelli, 411 U.S. 778, 785-788 , 93 S.Ct. 1756, 1761-1762 , 36 L.Ed.2d 656 (1973), where the Court provided a similar safeguard to govern parole revocation, and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-546 , 105 S.Ct. 1487, 1495 , 84 L.Ed.2d 494 (1985), where the Court gave a tenured public employee the opportunity to present his (or her) side of the case before a permissible suspension awaiting termination may be effected. Important government interests would be advanced by requiring full-scale adversary process of administrative law to be utilized as a vehicle for separating legitimate whistleblowers from chronic or malcontent troublemakers.
. 445 U.S. 507 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980).
. Branti, 445 U.S. 507 , 100 S.Ct. 1287 , supra note 18 at 514-16, 100 S.Ct. at 1293 . See also Elrod v. Burns, 427 U.S. 347, 362-63 , 96 S.Ct. 2673, 2684 , 49 L.Ed.2d 547 (1976) (opinion by BRENNAN, J„ in which WHITE and MARSHALL, JJ., joined); Perry v. Sindermann, 408 U.S. 593, 596-97 , 92 S.Ct. 2694, 2697 , 33 L.Ed.2d 570 (1972).
. The provisions of 74 O.S.1991 § 841.7 state in pertinent part:
"Disciplinary actions ... shall not be taken against an employee for providing or offering to provide information or for communicating to others any substantiated claim of wrongdoing by or within a state agency.” (Emphasis added.)
See in this connection Vannerson v. Bd. of Regents of U. of Okl., Okl., 784 P.2d 1053, 1055 (1989); Burk v. K-Mart Corp., 956 F.2d 213, 214 (10th Cir.1991).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564486. Public record. Not legal advice.