# 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/9564487

## 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 Chapel
- **Judges:** Kauger, Wilson, Hodges, Lavender, Simms, Hargrave, Opala, Watt, Chapel, Summers
- **Cited by:** 8 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/9564487

## Opinion text

CHAPEL, Special Judge,
concurring in the judgment.
I concur in the Court’s decision that Art Acevedo’s First Amendment interest in expression was outweighed by the potential injury to the City of Muskogee. I write separately because I come to this conclusion after analyzing the case under the requirements of Connick v. Myers 1 as refined in Waters v. Churchill. 2 I believe the facts here show that the Muskogee Police Department reasonably believed in potential injury to the Department as a consequence of Acevedo’s speech and was justified in dismissing him on that basis.
Connick set forth the test for determining whether speech by a government employee may serve as a basis for discipline or discharge. To be protected, the speech must be on a matter of public concern, and the employee’s interest in expression on the matter must not be outweighed by any injury the speech could cause the interest of the State in promoting the efficiency of the public services it performs through its employees. This test must be applied to the facts of each case. Waters v. Churchill clarifies whether the Connick test should be applied to what the government employer thought was said, or to what the trier of fact ultimately determines to have been said. Waters determines that the Connick test should be applied to *267 the facts as the employer reasonably found them to be. 3 The plurality opinion in Waters also indicated that the employer must engage in some investigatory procedure, to be evaluated on a case-by-ease basis, in arriving at a reasonable belief. 4 While it is clear from the opinion that some procedure must justify an employer’s “reasonable” belief regarding employee speech, the suggested requirement for an investigation is not the heart of the opinion. Waters’ importance lies in its determination of how facts are to be determined under Connick.
The majority and concurring opinions decline to apply Waters because it was decided by a plurality. 5 I agree that a plurality decision is binding precedent only as to identical fact situations which would result in the same judgment. However, any plurality decision may be persuasive. Moreover, I cannot agree that a plurality decision has no binding effect. Lower state and federal courts must frequently parse the opinions included in plurality decisions to determine whether a decision contains any common statement of law, or reaches a common result, which can and should be applied in future cases. 6 Rather than reflexively abandoning Waters this Court should determine whether the decision has any precedential value. 7
My analysis of the various Waters opinions reveals a common principle. As Justice Souter explicitly notes in his concurrence, a clear majority supports the plurality opinion’s determination that the Connick test should be applied to the facts as the employer believed them to be and the plurality’s requirement that an employer reasonably believe the employee could be punished for the offending speech. 8 Justice Scalia’s opinion concurring in result quarrels only with the plurality’s suggested requirement for some sort of procedural investigation and would hold the employee’s First Amendment rights are adequately protected by determining whether a discharge was a pretext masking an impermissible purpose. 9 This opinion rejects only the plurality’s procedural requirements, not the basic requirement that an employer have a reasonable belief that the employee may be dismissed for his speech. As Justice Souter notes, employers whose conduct survives the plurality’s reasonableness test cannot be held liable under Justice Scalia’s formulation. 10 Justice Stevens insists the plurality goes too far in allowing employers to dismiss employees who engage in protected speech if the employers have a reasonable belief the speech is not protected, and would have the trier of fact rather than the employer determine what was actually said. 11 As Justice Souter notes, this opinion *268 offers a lowest common denominator for the plurality’s reasonableness test, since, no matter who determines what was said, an employer who fails the reasonableness test must be held liable under the First Amendment. 12
Seven Justices in Waters agree that the Connick test should be applied to the facts as the employer reasonably found them to be. This important addition to the Connick test should be applied by this Court. We need not adopt the plurality opinion’s suggested requirement for an investigation before an employee is terminated; indeed, in this case such a requirement is unnecessary as the record before us contains a report of the extensive and thorough investigation conducted by the City of Muskogee. 13
Waters clearly indicates the trier of fact is to accept the facts as the employer reasonably found them to be. Given this directive I believe it is inappropriate for this Court to sua sponte determine from the record before us that the potential injury to the City of Muskogee Police Department outweighed Acedevo’s interest in protected speech. Looking to the extensive record detailing the investigation undertaken by the City, I find that the City has amply demonstrated a reasonable belief that Acedevo’s remarks were unprotected and the City would potentially suffer injury from his exercise of speech. For that reason I concur in the judgment.
. 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983).
. 511 U.S. -, 114 S.Ct. 1878 , 128 L.Ed.2d 686 (1994).
. Waters, 511 U.S. at -, 114 S.Ct. at 1888-1889 , 128 L.Ed.2d at 700-701 .
. Waters, 511 U.S. at -, -, 114 S.Ct. at 1886, 1889 , 128 L.Ed.2d at 697, 701 .
. Three Justices joined Justice O’Connor's plurality opinion, one Justice also concurred separately, three Justices concurred in result, and two Justices dissented.
. 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 Harvard L.Rev. 1127 (1981); Note, The Precedential Value of Supreme Court Plurality Decisions, 80 Co-lum.L.Rev. 756 (1980). Cf. United States v. Friedman, 528 F.2d 784, 788 (10th Cir.1976), citing Hertz v. Woodman, 218 U.S. 205 , 30 S.Ct. 621 , 54 L.Ed. 1001 (1910) (lower court need not follow rule promulgated by only three Justices); United States v. Pink, 315 U.S. 203 , 62 S.Ct. 552 , 86 L.Ed. 796 (1942) (affirmance by equally divided court not authoritative precedent).
. In the Court’s most recent case on the issue of employee speech, the six-Justice majority, the concurring opinion, and the dissenting opinion all cite Waters as persuasive authority. United States v. National Treasury Employees Union, - U.S. -, 115 S.Ct. 1003 , 130 L.Ed.2d 964 (1995).
. Waters, 511 U.S. at -, 114 S.Ct. at 1893 , 128 L.Ed.2d at 706 (Souter, J., concurring).
. Waters, 511 U.S. at -, -, 114 S.Ct. at 1893, 1895-96 , 128 L.Ed.2d at 706, 709-10 (Scalia, J., concurring in result).
. Waters, 511 U.S. at -, 114 S.Ct. at 1893 , 128 L.Ed.2d at 706 (Souter, J., concurring).
. Waters, 511 U.S. at -, -, 114 S.Ct. at 1898, 1900 , 128 L.Ed.2d at 712, 714 (Stevens, J., dissenting).
. Waters, 511 U.S. at -, 114 S.Ct. at 1893 , 128 L.Ed.2d at 706 (Souter, J., concurring).
. I agree with Justice Opala's discussion of Ace-devo's potential claims under our state constitution, and would adopt investigative procedures as suggested by the Waters plurality if the issue were properly before us.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9564487. Public record. Not legal advice.