Petition — Sprague v. Fitzpatrick
Supreme Court brief1977
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[ Supreme Court, U,
R877
IN THE
Mi. EL RQDAK, J@., CLERK
Supreme Court of the United States
Ocroser TERM, 1976
No 76°1223
RICHARD A. SPRAGUE,
Petitioner,
vs.
F. EMMETT FITZPATRICK,
Respondent.
PetiITION FOR A Writ oF CERTIORARI TO THE
Unitep States Court oF APPEALS FOR THE THIRD Crrcurr
PETITION FOR WRIT OF CERTIORARI
THOMAS B. RUTTER,
Attorney for Petitioner,
1314 Chestnut Street, 15th Floor,
Philadelphia, Pennsylvania 19107
(215) 732-4610
N.J. Appellate Printing Co., Inc., South Plainfield, New Jersey (201) 753-0200
TABLE OF CONTENTS
A ES 0 6k. ne vcdweuctucweseucdudenyeonees
ED 6 switrd'n'souees sce aphsrns oeh eee eeae
Statement of the Question Presented ...............
ne been eabes
Reasons for Granting the Writ .. .................
I.
II.
IIL.
This Court should settle an important question of
Constitutional Law and state its view (heretofore
specifically reserved ) as to the competing consid-
erations involved in applying, and its resolution
of a specific question concerning, the balancing
test established in Pickering v. Board of Educa-
tion, 391 U.S. 563 (1968), where the dismissed
speaker's position in public employment is one in
which the relationship between superior and sub-
ordinate is of a personal and intimate nature and
the content of the speech is both truthful and cen-
tral to the public employment ................
The Court below applied the Pickering balancing
test in a way which conflicts with that decision,
and other decisions of this Court, because it gave
ascendancy in striking the balance to the alleged
disruptive impact of Petitioner Sprague’s state-
ments over their conceded truthfulness, their cen-
tral significance to the public office to which they
related and to the right of the public to be in-
formed as to the conduct of that elective public
Ss eos el. os aoe oan ne ae
The application of the Pickering balancing test by
the Court below conflicts with the application of
that same test by the Courts of other Circuits .. . .
ie: i I eo tad ee
15
17
20
26
TABLE OF CONYENTS
Cases CITED:
Amett v. Kennedy,
416 U.S. 134 (1974)
Buckley v. Coyle Public School System,
476 F.2d 92 (10th Cir. 1973)
Donahue v. Staunton,
471 F.2d 475 (7th Cir. 1972) cert. denied,
410 U.S. 955 (1973)
Elrod v. Burns,
424 U.S. 909 (1976)
Hirsch v. Green,
368 F. Supp. 1061 (D. Md. 1973 )
Illinois State Employees Union
Council No. 34, etc. v. Lewis,
473 F.2d 561 (7th Cir. 1972, Stevens, J.)
cert. denied 410 U.S. 942 (1973)
Janetta v. Cole,
493 F.2d 1334 (4th Cir. 1974)
Keyishian v. Board of Regents,
385 U.S. 589 (1967)
Kiiskila v. Nichols,
433 F.2d 745 (7th Cir. 1970)
Lamont v. Postmaster General,
381 U.S. 30 (1965)
Mancuso v. Taft,
476 F.2d 187 (1st Cir. 1973)
Mt. Healthy City School District
Bd. of Education v. Doyle,
No. 75-1278, 45 U.S. Law Week 4083 (1977) .
i. = 2 ee oe Fe 2 Oe he
ree eo 8 66606868 6 6 6 2 &
°e¢eee ee 08 606 6 6 b
_ 17
iii
TABLE OF CONTENTS
Cases CITED:
O'Malley v. Brierley,
477 F.2d 785 (3rd Cir. 1973) ..--------+ ++) 23
Pickering v. Board of Education, a i
391 U.S. 563 (1968) ......---e reer eee
Red Lion Broadcasting Co. v. FCC, ™
395 U.S. 367 (1970) ....-----e err etre
. Indiana University, .
—" rod 1364 (3d Cir. 1975) cert. denied,
—
We EON COIN ois as cass vee vx
Smith v. Losee, .
48% Fd 330 (Sth Cie. 1073) ......--. cece 23
Smith v. United States, |
- 502 F.2d 512 (5th Cir. | ee ee 23
United States v. Nardello, r
3903 U.S. 286 (1969) .....---- cere etree
Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, .
423 U.S. 814 (1976) .....--- reece rete
Ni . Kimbrough, ;,
tage Supp. 578 (W.D. La. 1969) cert. denied,
.. 23
396 U.S. 1061 (1970) .......--- eee errr
STATUTES CITED:
ane 2
98 US.C.A. §1254(1) 0. ee eee eee reer
98 U.S.C. §1343(3) .... cece eee center eee eee es ;
a) | a enrrrrrnrrrrrrt rr rie ;
iv
TABLE OF CONTENTS
U.S. ConstiTtuTION CITED:
First Amendment ........................ 20, 21, 23
Fourteenth Amendment ................... 21
RuLe CIrTep:
kg PE A 18
AUTHORITIES CITED:
Wright v. Miller, Federal Practice and Procedure
o0708 aot Oe. © .........0.45 7
The Unclear Boundaries of the Consiitutional Rights of
Public Employees, 44 University of Missouri
(Kansas City) Law Review 389 fj eee 23
APPENDIX
Agpendia & . o.oo vesexscsse la
Appendix B
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1976
No.
RICHARD A. SPRAGUE,
Petitioner,
vs .
F. EMMETT FITZPATRICK,
Respondent.
————
PETITION FOR A Writ OF CERTIORARI TO THE
UniTEep STATES CouRT OF APPEALS FOR THE THIRD CrrculitT
AND NOW, this Ist day of March, 1977, Richard A.
Sprague, your Petitioner, respectfully prays that this Hon-
orable Court grant a Writ of Certiorari to review a judg-
ment of the United States Court of Appeals for the Third
Circuit dated December 6, 1976, by which that court af-
firmed the judgment of the United States District Court
for the Eastern District of Pennsylvania which dismissed
your Petitioner's Complaint against Respondent.
OPINIONS BELOW
Attached hereto as Appendix A is a copy of the opin-
ion of the court below which is reported at 540 F.2d 560
(1976); attached hereto as Appendix B is a copy of the
opinion of the United States District Court for the Eastern
District of Pennsylvania which is reported at 412 F. Supp.
910 (1976).
JURISDICTION
This Honorable Court has jurisdiction to grant a Writ
of Certiorari pursuant to the Act of June 25, 1948, c. 646
7 Stat. 928, 28 U.S.C.A. § 1254(1), the judgment of the
| nited States Court of Appeals for the Third Circuit hav-
ing been entered on December 6, 1976 and the instant
Petition having been filed within ninety (90) days of that:
date.
STATEMENT OF THE QUESTION
PRESENTED
_ May the truthful statements of Mr. Sprague (Peti-
tioner here) in the exercise of his Constitutional right to
speak on an issue of public importance, i.e., the facts as
to the manner in which the elected District Attorney (Re-
spondent here) was conducting his public office—namel
that the District Attorney of Philadelphia had given false
public interviews on four separate occasions in justifica-
tion of his agreement to probation for a multiple felon
offender whom he had previously represented as nals
counsel in this Court—made at a time when Mr. Gane
was the appointed First Assistant District Attorney of
Philadelphia furnish a Constitutional basis for ran Mle
dismissal from public employment as First Assistant Dis-
trict Attorney simply because of the offensive personal
impact of that statement on the District Attorney?
STATEMENT OF THE CASE
This is an action for money damages brought under
the Civil Rights Act of 1871, 42 U.S.C. §1983, with federal
jurisdiction being founded on 28 U.S.C. §1343(3).
Factually, the case involves the firing of Petitioner
Sprague from his appointed position as First Assistant Dis-
trict Attorney by Respondent Fitzpatrick (the recently-
elected District Attorney) as the result of an interview
given at the instance ' of the Philadelphia Inquirer news-
paper in which Mr. Sprague truthfully commented on
various false public statements by Fitzpatrick explaining
how he, Fitzpatrick, had personally appeared in a court-
room and caused a multiple offender, one Joseph Nardello,
to receive probation contrary to the long-standing recom-
mendation for imprisonment noted on the official files of
the District Attorney's office.
The text of the interview as published by the Inquirer
(and agreed by both Sprague and Fitzpatrick to be a cor-
rect version of the interview) is as follows (R., pp. 44a-
45a):
“Nardello had been convicted by a jury in 1969 on
the stolen goods charge, but his sentencing had been
delayed until this year because of his health and legal
arguments over defense motions for a new trial.
“When Fitzpatrick ended the case last July, he rec-
ommended probation for Nardello in return for the
withdrawal of the motions for a new trial by Nardello’s
attorney, A. Charles Peruto.
1. Petitioner Sprague did not seek out the press in order to confront his
chief. Rather, when a representative of the press, in an unsolicited interview,
squarely put the question whether certain statements made by Fitzpatrick
accurately represented the facts, Mr. Sprague responded truthfully to those
questions. Unfortunately for Mr. Fitzpatrick, Mr. Sprague’s truthful answers
to the reporter's questions demonstrated that Mr. F itzpatrick had spoken
falsely.
Statement of the Case
“Since the story was first reported, Fitzpatrick has
twice appeared on talk shows on radio station WCAU
to explain his actions,
“Here are Girzpatrick’s [sic] statements, and Sprague’s
conflicting accounts:
[1] “‘There was a deal, an arrangement made before I
became district attorney, Mr, Nardello would withdraw
his ast for a new trial if the judge would impose
a probationary sentence. —Fitzpatrick, Nov.
— p ov. 21, 1974
“Sprague, who was first assistant also under the ad-
ministration of Arlen Specter, said he had consistently
ordered that a 2%-to-5 year prison sentence be recom-
mended for Nardello. The Fitzpatrick statement, he
said, ‘is not true.’
“Sprague said that on ‘numerous occasions’ Nardello’s
attorney had offered to withdraw his motions in ex-
change for a recommendation of probation.
““I opposed it, would not permit it, and instructed the
assistant district attorney (Judith Dean) that we would
not agree to that and, if we won the motions, she was
to ask for 2%-to-5 years in prison, Sprague said.
[2] ““This was one of a bunch of old, infirm cases that
had just kicked around and been maltreated in the
D.A.'s office for a number of years.’ —F itzpatrick, Nov.
21, 1974, WCAU.,
““Not true,’ said Sprague.
“After the conviction, we attempted to get the mo-
tions disposed of, but the case was constantly post-
poned by defense counsel in their attempt to get us
to change our mind on the sentence,’ Sprague said.
“He said he had ordered the case listed ‘almost
monthly in 1973 in an attempt to get the motions dis-
posed of, but ‘Peruto [defense counsel] was able to get
the judge to postpone it.’
““If there had been a deal, why would there have
been our constant attempts to dispose of it and their
constant attempts to postpone it?’ he asked,
Statement of the Case
[3] “‘I was told by Mr. Stevens ( William Stevens, chief
of the trial division) that this case was regarded by
the assistant district attorney assigned to it, a young
lady by the name of Dean, as a loser.’—Fitzpatrick,
Nov. 27, 1974, WCAU.
“Sprague said he did not know what Stevens may
have told Fitzpatrick, but he added: ‘I can tell you
what Miss Dean told me in Stevens’ presence.’
“Sprague said Miss Dean’s position, stated in a meet-
ing last June with Sprague and Stevens, ‘was that there
was one legal question of some difficulty, but she
wanted to argue it and felt she could win it’
“‘She never told me that the case was a loser or that
we should agree to probation,’ Sprague said.
[4] “‘You are asking me did I make the decision
whether or not probation was the proper sentence,
and the answer has to be that it was not my decision.’
_—Fitzpatrick, Oct. 31, 1974, interview with Inquirer
reporters.
“Last June, Sprague recalled ‘I got a call from Miss
Dean who said she did not know what was going on.
She told me she got a call from Stevens telling her to
arrange probation for Nardello.
“‘I called her and Stevens in, and I asked Stevens,
‘What the hell is going on?’ Sprague said.
“Stevens said that all he knew was that Fitzpatrick
told him to arrange probation for Nardello.
“‘I asked Stevens what he knew about the case and
if Fitzpatrick knew about the case and Nardello’s back-
ground.
“‘Stevens said he knew nothing—that he was just a
- conduit for Fitzpatrick’s instructions,’ Sprague said.
“Sprague added that he tried to call Fitzpatrick
‘immediately’ to find out what was happening, but was
unable to reach him.
Statement of the Case
“‘I then asked Miss Dean if there was any reason
to drop our motions and she said no, she wanted to
argue the case.
“I told her that since I wasn’t satisfied that Fitz-
patrick knew the background of the case, she was not
to go into court and arrange probation,’ Sprague said.
“Miss Dean then went to the hearing and told Com-
mon Pleas Judge Maurice Sporkin that she would not
recommend probation but, if asked, would recommend
2% to 5 years. The case was then continued again at
the defense lawyer's request.
“Stevens refused to discuss the case with the Inquirer.
[5] “‘Now all of the information that I got on the case,
I want you to understand, came from my chief of the
trial division.’'—Fitzpatrick, Nov. 21, 1974, WCAU.
“Sprague said however, that he had supplied informa-
tion to Fitzpatrick’s office some-[sic]
“Sprague said he had gone to Fitzpatrick’s office
sometime after the meeting with Miss Dean and
Stevens to discuss the case.
“IT hold [sic] him that Miss Dean had gotten instruc-
tions from Stevens, but I said I didn’t think he (Fitz-
patrick) knew of the background of Nardello,
““T told him that if asked in court for a recommen-
dation, she had been instructed by me to recommend
2% to 5 years in prison. I said Nardello is a bad apple,
that he should get 2% to 5 years, and that we had been
fighting the case for a long time.
“"IT made that very clear to him.’
“Within two weeks, Fitzpatrick personally appeared
in court and recommended that Nardello be placed on
probation,
“Sprague said he learned of it only after the sentenc-
ing had been completed.”
Statement of the Case 7
The facts relevant to the issues raised by this Petition
are set forth in a detailed Affidavit filed by Petitioner
Sprague with the District Court (R., pp. 22a-36a) :
“I. OFFICIAL RELATIONSHIP BETWEEN DIS-
TRICT ATTORNEY AND FIRST ASSISTANT
DISTRICT ATTORNEY
“In Philadelphia the District Attorney is elected for
a term of four years. He is the head of the District
Attorney's Office and sets the policy and programs to
be followed by the Office.
“The First Assistant District Attorney [is appointed
by the District Attorney and] . . . is the person who
acts in place of the District Attorney in the event the
District Attorney is unavailable or is out of the city.
In addition the First Assistant District Attorney is the
administrative head of the District Attorney's Office
whose job it is to see that the established policies are
carried out.
° ° e
“Thus it can be said that the District Attorney sets
policy for the District Attorney's Office, that the First
Assistant sees that the policies of the District Attorney
are carried out and that the day-to-day operations of
the Office are handled and carried out in a proper,
expeditious fashion. The First Assistant is also an
adviser to the District Attorney with regard to sugges-
tions and implementations of various programs within
a District Attorney's Office.
Il. RELATIONSHIP BETWEEN F. EMMETT
FITZPATRICK AND RICHARD A. SPRAGUE
“Upon Mr, Fitzpatrick’s election as District Attorney
of the City of Philadelphia he expressed an interest in
) i i i between Petitioner
2. While there are no differences in material facts ;
and Respondent as represented by their Affidavits, given the yep
ture of this case the statements of fact contained in among - + ta
courts below by Petitioner must be taken as true for — 7-7 oO y eae ;
Cf. bre ge v. Miller, Federal Practice and Procedure, § 2716 and the case
collected at ftn. 90 thereof,
3. Mr. Sprague first became employed as an Assistant District Attorney
in the City of Philadelphia in February 1958 and served as First Assistant
District Attorney at all times from June, 1966 through his firing in December,
1974.
Statement of the Case
having me continue as First Assistant District Attorney
over his new administration.’
lil. THE FACTS AS TO THE NARDELLO CASE
“In 1968 the District Attorney's Office prosecuted
Joseph Nardello on a charge of receiving stolen goods.
In this case, the evidence indicated that there had been
a substantial burglary and robbery from the DuPonts
in Florida. In the course of this crime—in which
$2,000,000 worth of bonds were stolen—a valuable
coin collection was taken. Some of the stolen coins
were subsequently traced to the possession of Joseph
Nardello in Philadelphia, who had attempted to sell
these coins back to the DuPonts for $50,000-$60,000.
“Nardello had a record of previous felony convictions
and never had gone to jail. He also had been con-
victed of receiving money in Philadelphia on previous
occasions for purposes of fixing cases in our City Hall
courts.
“In this circumstance, I assigned Richard G. Phillips
to try the case against Nardello with instructions that,
in the event he convicted Nardello, he was to recom-
mend a substantial term of imprisonment. Mr. Phillips
tried Nardello and convicted him. I ordered Mr, Phil-
lips to make a recommendation of 24-5 years in prison.
“Sentence thereafter was deferred by the Court.
Immediately after the conviction, defense counsel, A.
Charles Peruto, approached the District Attorney’s
Office saying that if they would agree to recommend
probation or agree to the judge’s imposing probation
for Nardello, he would not pursue motions for a new
trial, This offer by Mr. Peruto was rejected. We
opted to argue the motions for a new trial.”
Statement of the Case
“The matter eventually ended up in the hands of
Judith Dean, who had prepared and filed our brief
with the Court in opposition to the post-trial motions.
Mrs. Dean was instructed to recommend a sentence of
2% to 5 years. This same recommendation—24 to 5
years—had been written on the file immediately after
the conviction in 1969 by Detective Winchester. Dur-
ing the course of the years there were numerous at-
tempts by Mr. Peruto to persuade us to agree to proba-
tion for Nardello, contending that Nardello was a sick
man, and so forth. Nonetheless, my position—and the
position of the Office of the District Attorney—continued
throughout to be a recommendation of 2% to 5 years.
“When the election for District Attorney came up in
November, 1973, I again tried to get the case disposed
of; however, Mr. Peruto was able to get the case post-
poned in November (and again in December) for the
reason that there was a new District Attorney to con-
tact.
“In the Spring of 1974 Judith Dean was about to go
to court to argue the post-trial motions in the Nardello
case when she was contacted by William Stevens, the
Chief of the Trial Division, who told her that she was
to agree to probation, Mrs. Dean reported this conver-
sation to me; I called Mrs. Dean and Mr. Stevens into
my office and asked Mr. Stevens for an explanation.
He stated that he was a conduit for the District Attor-
ney, Mr, Fitzpatrick, who had told him to arrange for
probation for Nardello. When I inquired of Mr.
Stevens whether he knew what had been going on in
this case, Mr. Stevens said no, that he was merely a
conduit for Mr. Fitzpatrick. When I wanted to know
whether Mr. Fitzpatrick knew what the background
was, Mr. Stevens said that he did not know. I was
unable to reach Mr. Fitzpatrick by ‘phone; he was ap-
parently out of town,
“I then asked Mrs. Dean, as I had constantly,
whether there were any legal problems in the case. She
replied, as she had always previously replied, that there
was one issue on which a good argument could be made
10
Statement of the Case
on each side; she thought, however, we ought to win
the case and she wanted to argue the post-trial motions.
I then told Mrs. Dean that she was to go to court,
subject to the following instructions: in view of the
fact that Mr. Fitzpatrick’s office policy was that no
recommendation of sentence was to be made to the
Court unless asked for, she was to tell the Court on
the record that no recommendation would be made.
However, she was to advise the Court and defense
counsel at side bar that in the event she was asked for
a recommendation it would stil! be 24% to 5 years. She
was to advise the Court to this effect so that there
would be no misunderstanding by the Court with regard
to our silence on recommendation that we were agree-
ing to -probation.
“Mrs. Dean did what she was told to do. Mr. Peruto
told the Court that he had a different understanding
with the District Attorney's Office; hence, the matter
was again postponed so that Mr. Peruto might speak
to the District Attorney.
“Subsequently, I advised Mr. Fitzpatrick as to what
had happened; that is, concerning Mr. Stevens’ contact
with Judith Dean and my orders to her. I recounted
to Mr. Fitzpatrick what the Nardello case was about,
I told him about the case, told him about Nardello’s
background and told him that we had been recom-
mending a sentence of 2% to 5 years. I further advised
Mr. Fitzpatrick that, in light of his policy of no rec-
ommendation on sentence to the Court unless specifi-
cally requested, my instructions to Mrs. Dean had
been to advise the Court that in accordance with Mr.
Fitzpatrick’s policy we would not make a recommen-
dation; however, she was to let the Court and defense
counsel know that, if asked, our recommendation
would be 2% to 5 years.
“Mr. Fitzpatrick stated no objection to what I had
done and indicated no disagreement with my instruc-
ee ee a ee
Statement of the Case
that he (Fitzpatrick) had gone along with probation,
and that Nardello had been placed on probation.
“IV. FACTS AS TO THE INTERVIEW OF FIRST
ASSISTANT DISTRICT ATTORNEY RICHARD
A. SPRAGUE BY THE PHILADELPHIA IN-
QUIRER
“In late August, 1974, various representatives of the
news media began to inquire into the facts surround-
ing the disposition of the Nardello case for the reason
that allegations had been made concerning Mr. Fitz-
patrick’s representation of Nardello while he, Fitz-
patrick, was in the private practice of law.* Specifi-
cally, the news media began to inquire into the reasons
behind Mr. Fitzpatrick’s unusual appearance person-
ally in a courtroom and into the facts and circum-
stances surrounding the agreement whereby Nardello
obtained a sentence of probation. In a ‘first’ series of
responses to the questions raised by the news media
about his participation in the Nardello case, Mr. Fitz-
patrick said that he had acted on the recommendation
of his staff, especially William Stevens. In that inter-
view, Mr. Fitzpatrick denied that it was has recom-
mendation which led to Nardello’s probation.
“These statements by Mr. Fitzpatrick at the ‘first’
interview were, of course, exactly contrary to the
statements made by Mr. Stevens in my office as re-
ferred to above. That is, in my office Mr. Stevens in-
dicated a lack of personal knowledge concerning the
Nardello case; to the contrary, Mr. Stevens told me
that he was acting on Mr. Fitzpatrick’s instructions.
Nevertheless, I made no public utterance on this con-
flict because I could not be sure that Mr. Fitzpatrick
and I had not, respectively, received conflicting points
of view from Mr. Stevens.
“Thereafter, in a ‘second’ series of responses to ques-
tions raised by the news media, Mr. Fitzpatrick attrib-
1]
tions. 4. The representation included oral argument in this Court on behalf of
i onvicti f Nardello in the
i : Mr. Nardello in an unrelated case after t e conviction oO lo it ,
In July, 1974, Mr. Fitzpatrick told me by ‘phone that Pennsylvania state case where Fitzpatrick ultimately a on At
has anngee to take the Nardello case into court, torney, to probation. United States v. Nardello, 393 US. 969 ).
12
Statement of the Case
uted the recommendation of probation for Nardello
to Mrs. Dean, alleging that Mrs. Dean had declared
the case to be a ‘loser.’ This ‘second’ set of answers
was again, contrary to my conversations with Mrs.
Dean and was contrary to her statement in my pres-
ence in my Office at the meeting involving Mr. Stevens
and myself. Nevertheless, I continued to remain silent
concerning the Nardello case giving Mr. Fitzpatrick
the benefit of the doubt on the assumption—or, in-
deed, the hope—that someone had given him inaccu-
rate information.
“Thereafter, in a ‘third’ set of answers to news media
questions, Mr. Fitzpatrick said that the only person in
the District Attorney's Office with whom he had spoken
with regard to the Nardello case was Mr. Stevens.
“This statement, I knew, as a matter of personal
knowledge, to be untrue. In fact, as related above, I
had personally reviewed the Nardello case with Mr.
Fitzpatrick and informed him of the basis for my rec-
ommendation of sentencing, i.e., 24 to 5 years.
“As a result of this personal knowledge that Mr. Fitz-
patrick had not spoken truthfully concerning the Nar-
dello case, I asked for a personal interview. Instead,
Mr. Fitzpatrick came to a City Hall courtroom where
I was personally handling a pre-trial matter in a mur-
der case. In response to his inquiry, I told Mr. Fitz-
patrick that I was concerned about his statements to
the press and to the public concerning the Nardello
case, especially since he had been saying things that
were contrary to the true facts. I specificaily reminded
Mr. Fitzpatrick of my conversation with him con-
cerning the Nardello case.
“Mr. Fitzpatrick’s response to my comments was to
indicate that he, in fact, had been making the state-
ments but that he was covering up to protect Judge
Sporkin, the sentencing Judge. He suggested that he
made these statements to the press and to the public
in order to be a ‘nice guy’ and to protect the Judge at
Statement of the Case
whose behest he (Fitzpatrick) had agreed to proba-
tion. (Parenthetically, I state that I did not then—
and do not now—believe that Mr. Fitzpatrick spoke
truthfully in suggesting that he was telling falsehoods
to protect Judge Sporkin. )
“Thereafter, Mr. Fitzpatrick gave a ‘fourth’ series of
answers to the news media questions concerning the
Nardello case. At that time, Mr. J'itzpatrick said that
he was merely carrying out an agi<ement entered into
by the Specter administration whereby it had been
agreed that Nardello might be placed on probation.
This statement was, of course, not true.
“Shortly thereafter, a reporter for the Philadelphia
Inquirer approached me and asked me specific ques-
tions concerning the Nardello case and asked me with
specificity and particularity whether various statements
made by Mr. Fitzpatrick were correct. This inter-
view by the Philadelphia Inquirer was neither insti-
gated nor solicited by me. However, upon having the
specific questions put, my options were: first, tell the
same stories as Mr. Fitzpatrick and thereby lie to the
public; second, answer ‘no comment’ which would
_ permit misstatements to the public to continue uncon-
tradicted upon the record; or third, tell the truth. I
chose to tell the truth.®
“The Philadelphia Inquirer printed my interview
concerning the Nardello case in editions dated Decem-
ber 4, 1974.°
“vy FACTS AS TO THE DISMISSAL OF RICHARD
A. SPRAGUE AS FIRST DISTRICT ATTORNEY
“Following publication on December 4, 1974 by the
Philadelphia Inquirer of my interview as to what had
occurred in the Nardello case, I was asked on Decem-
ber 5, 1974 to see Mr. Fitzpatrick.
“Mr. Fitzpatrick and 1 met in his office. Mr. Fitz-
patrick asked me whether or not what had been pub-
aes 5. ‘Emphasis supplied.
6. The text o
f the published interview is set forth, supra, at pp. 3-6.
13
14
Statement of the Case
lished in the Inquirer was accurate. I said it was. He
wanted to know why I had given the interview. I an-
swered Mr. Fitzpatrick essentially as follows: ‘Because
you have been making statements to the public that
are untrue. I warned you that you were making state-
ments that were untrue and yet you went ahead and
made a further statement to the public that was to-
tally untrue; namely, that there had been this previous
deal in the prior administration to grant Nardello pro-
bation.’
“Mr. Fitzpatrick tried to counter by saying that there
had been an offer of probation in the previous admin-
istration. I said, “That is not what you said to the pub-
lic; you said that there had been an agreement to place
Nardello on probation.’
“Mr. Fitzpatrick responded that my effectiveness as
First Assistant District Attorney ended the moment I
gave the interview to the Inquirer and asked me would
we handle this thing in a ‘gentlemanly fashion.’
“I said, “You're the District Attorney, what do you
mean?”
“He said, ‘I want you to resign.’
“I told Mr. Fitzpatrick that I would not resign, that
I had done the correct thing in standing up and relat-
ing what the facts were of the Nardello case when he
had been making statements that were untrue, and that
I would never resign for having done the right thing.
This was at approximately 3:40 p.m. on December 5,
1974.
“Mr. Fitzpatrick said, ‘You are fired as of 3:30 p.m.
today.”
The Complaint in the instant action was filed in the
District Court on January 29, 1975.
15
REASONS FOR GRANTING THE WRIT
I. This Court should settle an important question of
Constitutional Law and state its view (heretofore
specifically reserved) as to the competing considera-
tions involved in applying, and its resolution of a
specific question concerning, the balancing test estab-
lished in Pickering v. Board of Education, 391 US.
563 (1968), where the dismissed speaker’s position in
public employment is one in which the relationship be-
tween superior and subordinate is of a personal and
intimate nature and the content of the speech is both
truthful and central to the public employment.
In Pickering v. Board of Education, 391 U.S. 563
(1968), this Court indicated “some of the general lines
along which an analysis of the controlling interests should
run” (ibid., at p. 569) in those instances where the problem
was
“ _. to arrive at a balance between the interests of the
[speaker], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public
services it performs through its employees” (ibid., at
p. 568).
The Court, however, specifically refused to intimate
its view as to how the balance should be struck in a case
where the discharged employee's relationship with the su-
perior of whom the employee has been critical is of a
certain “personal and intimate nature.” This Court said
(ibid., at p. 570, ftn. 3):
“It is possible to conceive of some positions in pub-
lic employment in which the need for’ confidentiality
is so great that even completely correct public state-
16 Reasons for Granting the Writ
ments might furnish a permissible ground for dismissal.
Likewise, positions in public employment in which the
relationship between superior and subordinate is of
such a personal and intimate nature that certain forms
of public criticism of the superior by the subordinate
would seriously undermine the effectiveness of the
working relationship between them can also be im-
agined. We intimate no views as to how we would
resolve any specific instances of such situations, but
merely note that significantly different considerations
would be involved in such cases.”
In this case, as Petitioner Sprague’s uncontradicted
Affidavit recited in the Statement of the Case makes plain,
the relationship between himself and Respondent Fitz-
patrick was, by virtue of the nature of their respective ap-
pointed and elected positions, a personal and intimate one.
Further, Mr. Sprague’s concededly truthful comments, dis-
closing the falsity with which Mr. Fitzpatrick had publicly
reported on his elected trust to the citizens of the City of
Philadelphia, were the cause of his retaliatory dismissal
from office. Indeed, the subject matter of Mr. Sprague’s
public communication and the fact of his employment as
a public prosecutor under Respondent Fitzpatrick are in-
extricably intertwined.
Therefore, it is respectfully suggested that this Court
should now state the views, identify the considerations,
and strike the balance which it specifically eschewed doing
in the quoted Pickering footnote.’
7. Cf. Elrod v. Burns, 424 U.S. 909 (1976).
Reasons for Granting the Writ 17
II. The Court below applied the Pickering balancing
test in a way which conflicts with that decision, and
other decisions of this Court, because it gave ascend-
ancy in striking the balance to the alleged disruptive
impact of Petitioner Sprague’s statements over their
conceded truthfulness, their central significance to the
public office to which they related and to the right of
the public to be informed as to the conduct of that
elective public office.
There is no question that Petitioner's truthful state-
ments concerning Respondent's performance of his duties
as District Attorney for the City and County of Philadelphia
were a motivating factor," if not the sole factor, in causing
Petitioner to be fired summarily from his position as First
Assistant District Attorney, a position which he had held
for eight and one-half years. Respondent has admitted as
much in his Answer (R., p. 20a):
“Such statements . . . gave the [Respondent] no choice
but to terminate the [Petitioner's] employment.
Hence, even on this bare record, Respondent has
carried his burden “. . . to show that his conduct was con-
stitutionally protected, and that this conduct was a ‘sub-
stantial factor’—or, to put it in other words, that it was a
‘motivating factor’ in the [Respondent's] decision not to
[retain] him. . . .”. (Mt. Healthy City School District Bd.
of Education v. Doyle, 45 U.S. Law Week, at p. 4083)
While conceding the statements of Petitioner which
give rise to the instant matter to have been both true and
Constitutionally protected’, and while conceding that the
sole motivating factor in Petitioner's dismissal from public
8. Mount Healthy City School District Board of Education v. Doyle, No.
75-1278, 45 U.S. Law Week 4079 (1977).
9. Compare Arnett v. Kennedy, 416 U.S. 134 (1974).
18 Reasons for Granting the Writ
employment was those protected true statements, the
Court of Appeals for the Third Circuit, in reliance upon
the balancing test first stated in Pickering v. Board of Edu-
cation and its own earlier decision in Roseman v. Indiana
University, 520 F.2d 1364 (3d Cir., 1975), cert. denied,
424 U.S. 921 (1976), has affirmed the District Court's dis-
missal of Petitioner's Civil Rights Act Complaint saying:
Reasons for Garnting the Writ
can constitute cause for discharge to promote effi-
ciency of service); Pickering, supra, 391 U.S. at 570
n. 3 (suggesting that public criticism could be grounds
for discharge). Roseman did not hold that the public
importance of an employee's statements automatically
created first amendment protection. Instead, that im-
portance may be, mutatis mutandis, one of the factors
to be weighed in favor of protecting the employee-
19
“The case sub judice presents an even more egregi-
ous example of disruptive impact [than Roseman v.
Indiana University, 520 F.2d 1364 (3d Cir. 1975), cert.
denied 424 U.S. 921 (1976)]. The court below found’?
it ‘beyond question’ that Sprague’s statements had
‘totally precluded any future working relationship be-
tween him and the defendant...’ The First Assistant
District Attorney—alter ego’ of the District Attorney,
his direct administrative and policy-making subordi-
nate—declared in public that his boss had not told the
truth. The irreparable breach of confidence between
the two men is evidenced by Fitzpatrick’s immediate
dismissal of Sprague and Sprague’s failure to seek re-
instatement as a form of relief in this action. Certainly
we could not expect a district attorney to run an effi-
cient office if his first assistant were free to impugn
his integrity in public.
“It is true that Sprague’s interview, in contrast to
Roseman’s criticisms, concerned matters of grave pub-
lic import. But this does not tilt the Pickering balance
in favor of first amendment protection where, as here,
the effectiveness of the employment relationship be-
tween employee-speaker and employer-target is so
completely undermined. Indeed, the public uproar
engendered by Sprague’s pronouncements is precisely
the factor that so thoroughly curtailed Sprague’s use-
fulness as Fitzpatrick’s deputy. See Arnett v. Kennedy,
416 U.S. 134, 161 (1974), citing with approval Meehan,
supra, 392 F.2d at 835 (public criticism of superiors
10. The District Court “found” nothing—the court's judgment was based
upon the pleadings and affidavits; there were no findings of fact. See Rule 52,
Federal Rules of Civil Procedure.
citizen's right to s on matters of general concern.
Pickering, Se Seren The key question under
Pickering, however, is whether the employment rela-
tionship has been seriously undermined. Id. at 568-70.
If the arousal of public controversy exacerbates the
disruption of public service, then it weighs against, not
for, first amendment protection in the Pickering bal-
ance.” (Emphasis supplied. )"'
The District Court, in turn, had decided to dismiss
the Complaint because:
“The practicalities inherent in the superior-subordinate
situation presented here dictate that [Respondent's]
dismissal of [Petitioner] not give rise to liability under
the Civil Rights Act.”
No other case can be found in which completely truth-
ful statements were sufficient to permit a dismissal from
public employment simply and solely because of their criti-
cal or disruptive nature. Indeed, the decision of the court
below takes us back to the rejected theory that “. . . pub-
lic employment which may be denied altogether may be
subjected to any conditions, regardless of how unreason-
able . . .”, Keyishian v. Board of Regents, 385 U.S. 589,
605-606 (1967), and counsel for Respondent so argued
before the court below.
. Thi ing apparently found favor with but two of the judges of
the Coast of paper Gs tant sungagh of the Court’s Opinion contains the
following:
“Chief Judge Seitz concurs in the result because of the particular facts
involved. He does so on the understanding that the majority is not
holding, in effect, that the disruptive factor tips the scales in all such
cases.”
20 Reasons for Granting the Writ
So far as the public was concerned, Sprague’s state-
ments were of no less Constitutional value than the right
to receive pricing information from pharmacists (Virginia
State Board of Pharmacy v. Virginia Citizens’ Consumer
Council, 423 U.S. 815 (1976)), or of the right to hear
radio broadcasts (Red Lion Broadcasting Co. v. FCC, 395
U.S. 367 (1970)) or of the right to receive literature
(Lamont v, Postmaster General, 381 U.S. 30 (1965) ).
As Mr. Justice White wrote for this Court in Red
Lion, supra, (395 U.S., at p. 395): “It is the purpose of
the First Amendment to preserve an uninhibited market
place of ideas in which truth will ultimately prevail . . .
it is the right of the public to receive suitable access to
social, political, aesthetic, moral, and other ideas and ex-
periences which is crucial here.”
Indeed, Mr. Justice Marshall's Opinion in Pickering
lays to rest the pragmatic approach to First Amendment
rights espoused by the courts below (391 U‘S., at p. 570):
“... to the extent that the [Respondent's] position here
can be taken to suggest that even comments on matters
of public concern that are substantially correct . . . may
furnish grounds for dismissal if they are sufficiently
critical in tone, we unequivocally reject it.”
IfI. The application of the Pickering balancing test
by the Court below conflicts with the application of
that same test by the Courts of other Circuits.
The decision of the court below squarely conflicts with
the decision of the United States District Court for the
District of Maryland in Hirsch v. Green, 368 F. Supp. 1061
(D. Md. 1973)'* There, a Deputy State’s Attorney for
12. No appeal was taken from the decision by Chief Judge Northrop.
Subsequent activity in the case, not relevant to the issue here, has beer
reported at 382 F. Supp. 187 (D. Md., 1974).
Reasons for Granting the Writ (2
Baltimore County brought suit against the State's Attorney
for Baltimore County seeking, inter alia, damages for de-
fendant’s termination of plaintiff's employment “in retalia-
tion for [plaintiff's] testimony before a grand jury investi-
gating said defendant's activities’ (368 F. Supp., at p.
1062). Plaintiff's. complaint was grounded, as is Mr.
Sprague’s, upon the Civil Rights Act (42 U.S.C. §1983)
and the First and Fourteenth Amendments to the United
States Constitution.
The Defendant State’s Attorney moved to dismiss
Plaintiff's Complaint or for summary judgment in his favor.
The basis for the Motion was described as follows (368
F. Supp. at p. 1062):
“Defendant [State’s Attorney for Baltimore County]
Green concedes that in discharging plaintiff he did not
set forth any reasons for the termination, nor did he
afford any opportunity for a hearing. He, however,
contends that plaintiff was discharged for what might
be best summarized as unprofessional conduct. Hav-
ing discovered that plaintiff had lied to him on prior
occasions, defendant concluded that Hirsch had lied
again when the grand jury returned an indictment
against him. Green also-argues that the plaintiff had
not been deprived of a vested property right since he
served as Deputy State’s Attorney at the pl: ure of the
defendant and could be fired at any time... .
Chief Judge Northrop rejected the Motion, explaining
his action as follows (368 F. Supp. 25 pp. 1067-68):
“It is clear that the plaintiff does not have a property
interest in his job as Deputy State's Attorney to warrant
procedural due process protection. . . .”
“However, this Court is of the opinion that plaintiff
has stated a cause of action under § 1983 with regard
22 Reasons for Granting the Writ
to his first amendment claim. The ‘firing’ occurred
shortly after plaintiffs grand jury testimony and de-
fendant’s subsequent indictment. While a public em-
ployee may be subject to summary discharge, termina-
tion may not be in retribution for the exercise of
constitutional rights. Brown v. Hirst, supra; Hodgin
v. Noland, supra. The defendant Green challenges
plaintiff's allegations, reciting several factual reasons
for the dismissal. Where there is a genuine dispute
regarding a free speech claim, summary judgment,
without full exploration of the issue, is improper. Wil-
derman v. Nelson, supra. The concurrence of pro-
tected speech and termination of the employment re-
lationship is enough to invoke an inquiry into the
circumstances of that termination. Chitwood v. Feas-
ter, stpra. This Court emphasizes that it is not finding
that the plaintiffs discharge was in fact the result of
the exercise of first amendment rights. All that is
being decided here is that the allegations are sufficient
to entitle plaintiff to present evidence on this claim at
a hearing.” (Emphasis supplied. )
The court below permitted Petitioner Sprague’s years
of public service as a prosecutor to be terminated “in ret-
ribution for the exercise of constitutional rights . . . The
concurrence of protected speech and termination of the
employment relationship [should have been] enough to
invoke an inquiry into the circumstances of that termina-
tion."
Further, the court below resolved the Pickering bal-
ance without regard to any standard of burden of proof
whereas the Courts of Appeals are seriously divided as to
the burden imposed upon a Defendant such as Respondent
Fitzpatrick when the Plaintiff has met the initial burden
of showing that a motivating factor in his dismissal was
13. See also, e.g., Illinois State Employees Union Council No. 34, etc. v.
Lewis, 473 F.2d 561 (7th Cir., 1972, Stevens, J.), cert. denied 410 U.S 943
(1973).
ee
Reasons for Granting the Writ 23
the exercise of First Amendment rights. See, inter alia,
Mancuso v. Taft, 476 F.2d 187 (1st Cir., 1973); O'Malley
v. Brierley, 477 F.2d 785 (3d Cir., 1973); Janetta v. Cole,
493 F.2d 1334 (4th Cir., 1974); Smith v. Losee, 485 F.2d
at 339 (5th Cir., 1973), Smith v. United States, 502 F.2d
512 (5th Cir., 1974); Kiiskila v. Nichols, 433 F.2d 745 (7th
Cir., 1970); Donahue v. Staunton, 471 F.2d 475 (7th Cir.,
1972), cert. denied, 410 U.S. 955 (1973); Buckley v. Coyle
Public School System, 476 F.2d 92 (10th Cir., 1973); Wil-
liams v. Kimbrough, 295 F. Supp. 578, 585 (W.D. La.,
1969 ), cert. denied, 396 U.S. 1061 (1970).
Further, and finally, there is a wide split among the
Circuits as to application of the Pickering balance with the
result that the decisions lack the principled neutrality to
be expected in an important area of Constitutional law.
That split is summarized, in part at least, in The Unclear
Boundaries of the Constitutional Rights of Public Employ-
ees, 44 University of Missouri (Kansas City) Law Review
389 (1977) as follows (393-394);
“ _. The state interest has been held sufficient in the
following situations: (1) the state’s interest in a
teacher using class time to teach the subject matter
and in maintaining harmonious international relations
outweighed plaintiff's right to make a political state-
ment during Air Force English class [Goldwasser v.
Brown, 417 F.2d 1169 (D.C. Cir. 1969), cert. denied
397 U.S. 922 (1970)]; (2) the state’s interest in
maintaining respect for law outweighed plaintiff pro-
bation officer’s right to hang poster of fugitives on
office wall [Phillips v. Adult Probation Dept., 491 F.2d
951 (9th Cir. 1974)]; (3) state’s interest in prohibiting
physical intimidation of other employees outweighed
plaintiff's right to protest [Waters v. Peterson, 495 F.2d
91 (D.C. Cir. 1973)]; (4) state’s interest in prohibiting
disruptions of office efficiency outweighed plaintiff's
right to criticize her department head [Roseman v. In-
diana University, 520 F.2d 1364 (3rd Cir. 1975)]; (5)
24
Reasons for Granting the Writ
the state’s interest in therapy on V.A. psychotherapy
ward outweighed plaintiff's right tc wear a peace pin
[Smith v. United States, 502 F.2d 512 (5th Cir. 1974)];
(6) state’s interest in school discipline outweighed
plaintiff's right to discuss getting the R.O.T.C. off cam-
pus during class [Birdwell v. Hazelwood Sch. Dist.,
491 F.2d 490 (8th Cir. 1974)]; and (7) the state’s in-
terest in harmony among co-workers outweighed
plaintiff's right to bicker with and dispute his superior
[Chitwood v. Feaster, 468 F.2d 359 (4th Cir. 1972)].
“The speech interest has prevailed in the following
situations: (1) plaintiff's right to protest orally out-
weighed the state’s interest in a peaceful lunch hour
for its employees [Waters v. Peterson, 495 F.2d 91 .
(D.C. Cir. 1973)]; (2) plaintiff's interest in criticizing
his union and employer outweighed the state's interest
in averting some possibility of labor unrest (no unrest
shown) [Holodnak v. Avco Corp., 514 F.2d 285 (7th
Cir. 1975)]; (3) the plaintiffs interest in working on
an underground student newspaper outweighed the
state interest in any potential disturbance it could
cause [Bertot v. Sch. Dist. No. 1, 522 F.2d 1171 (10th
Cir. 1975)]; (4) the plaintiff's interest in expression of
some opinion on an upcoming tenant's election out-
weighed the state’s interest in preserving the appear-
ance of impartiality [Alderman v. Phila. Hsg. Auth.,
496 F.2d 164 (3rd Cir. 1974), cert. denied 419 U.S. 844
(1974)]; (5) the plaintiff's interest in complaining
about a seniority system outweighed the state’s interest
in maintaining higher morale [Janetta v. Cole, 48
F.2d 1334 (4th Cir. 1974)]; (6) the plaintiffs interest
in supporting a candidate in an election, and in ques-
tioning and opposing the administration in his position
as head of faculty association outweighed the state’s
interest in harmony and efficiency [Smith v. Losee, 485
F.2d 334 (10th Cir. 1973), cert. denied 417 U.S. 908
(1974)]; (7) the plaintiff's interest in criticizing his
employer outweighed the state’s interest, especially
since there was no evidence of a negative result [Don-
ahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), cert.
denied 410 U.S. 955 (1973)]; (8) the plaintiff's interest
Reasons for Granting the Writ
in expression by a silent refusal to salute the flag out-
weighed the state’s interest in maintaining a healthy
respect for the flag in students [Russo v. Central Sch.
Dist., 469 F.2d 623 (2d Cir. 1972, cert. denied 411 US.
932 (1973)]; (9) the plaintiff's expression of opinion by
wearing a black armband outweighed the state’s in-
terest in avoiding any appearance of non-objectivity,
and of their undifferentiated fear of disturbance
[James v. Bd. of Education, 461 F.2d 566 (2d Cir.
1972), cert. denied 409 U.S. 1042 (1972). See also
Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503
(1969) where the Supreme Court held that neither the
unfulfilled fear of disruption nor the mere desire to
avoid the discomfort and unpleasantness which accom-
panies an unpopular view is sufficient to outweigh the
students’ right to wear a black armband as an expres-
sion of opinion]; (10) the plaintiff's interest in having
a bumper sticker on his car outweighed the state's in-
terest in limiting the partisan political activity of its
employees [Hobbs v. Thompson, 448 F.2d 456 (5th
Cir. 1971]; (11) the plaintiff's interest in leafletting
outweighed the state’s interest in an unsupported fear
of effect on military discipline [Kiiskila v. Nichols, 433
F.2d 745 (7th Cir. 1970)].”
25
26 APPENDIX A
UNITED STATES COURT OF APPEALS
For THE THIRD CrRcuIT
CONCLUSION
For the reasons set forth above, Petitioner respectfully \ No “76.1906
prays that this Court issue its Writ of Certiorari directed
to the United States Court of Appeals for the Third Circuit
so as to bring before it for briefing, argument and decision
RICHARD A. SPRAGUE,
Appellant,
the important questions of federal constitutional law pre- .
sented by the instant Petition. )
F. EMMETT FITZPATRICK, JR.,
lee.
Respectfully submitted, Appetiee
/s/ Thomas B. Rutter APPEAL FROM THE UNITED STATES District Court FOR THE
THOMAS B. RUTTER, EASTERN District OF PENNSYLVANIA
Counsel for Petitioner
D.C. Civil Action No. 75-231
Argued October 19, 1976
Before Serrz, Chief Judge, Hunrer and Gartn,
Circuit Judges
1314 Chestnut Street, 15th Floor
Philadelphia, Pennsylvania 19107
(215) 732-4610
Thomas B. Rutter
Attorney for Appellant
James E. Beasley
Jeffrey M. Stopford
Beasley, Hewson, Casey,
Colleran & Stopford
Attorneys for Appellee
i (Filed December 6, 1976)
Hunter, Circuit Judge:
Richard A. Sprague, former First Assistant District At-
torney of Philadelphia County, apveals from the dismissal
la
NR EEN p§OOo
2a Appendix A
of his action for damages against F. Emmett Fitzpatrick,
District Attorney of Philadelphia County. Treating the
dismissal below as a summary judgment for defendant
Fitzpatrick, we affirm.
I.
The material facts are not in dispute. Fitzpatrick took
office as District Attorney in 1973. Sprague, who had
been First Assistant District Attorney under Fitzpatrick’s
predecessor, agreed to remain in that position. The First
Assistant is the District Attorney's “alter ego.” He as-
sists the District Attorney in formulating policy, is pri-
inarily responsible for administration on a daily basis, keeps
the District Attorney informed about the performance of
the various units in the office, and acts in the District At-
torney's place when the latter is unavailable. In short, the
First Assistant is the District Attorney's second-in-com-
mand.
In 1974, the District Attorney's office was working on
post-trial motions concerning the sentencing of Joseph
Nardello. Nardello, who had a long criminal record, had
been convicted of receiving stolen goods in 1969. Since
1969, Sprague and his subordinates had repeatedly sought
to recommend a 2% to 5 year prison sentence for Nardello,
but the argument on post-trial motions was repeatedly de-
layed. In July of 1974, Fitzpatrick interceded in the
Nardello case. He personally appeared before Nardello’s
sentencing judge and recommended probation.
After it was discovered that Fitzpatrick had represented
Nardello's co-defendant on a federal blackmail charge be-
fore leaving private practice, journalists began to inquire
about the Nardello matter. Fitzpatrick denied responsi-
bility for the decision to recommend probation for Nardello.
Three times he attributed the recommendation to various
te CA OOTP
Appendix A 3a
subordinates who had worked on the case; once he re-
ferred to an agreement, supposedly worked out under his
predecessor, not to recommend a jail term for Nardello.
A reporter for the Philadelphia Inquirer asked Sprague
to comment on Fitzpatrick’s public disclaimers. Sprague
sharply disputed the truth of each. This interview was
published on December 4, 1974, and on December 5, Fitz-
patrick demanded Sprague’s resignation. When Sprague
refused. Fitzpatrick discharged him.
Sprague filed an action for damages of $500,000 against
Fitzpatrick in the United States District Court for the
Eastern District of Pennsylvania. He alleged that the
District Attorney's decision to discharge him because of
the exercise of his rights under the first and fourteenth
amendments amounted to a deprivation of his constitu-
tional rights in violation of 42 U.S.C. § 1983.' Jurisdic-
tion was founded on 28 U.S.C, § 1343(3).’
Fitzpatrick moved to dismiss. He contended under Fed.
R. Civ. P. 12(b)(6) that the District Attorney was im-
mune from suit under section 1983 and that Sprague had
therefore failed to state a claim upon which relief could
be granted. Under Fed. R. Civ. P. 12(b)(1), he averred
that the suit was actually against the City of Philadelphia,
which is not a “person” within the meaning of section
1. Section 1983 reads as follows:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any a. panen. or immunities secured by the Con-
stitution and laws, shall liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress.
2. Section 1343(3) reads as follows:
The district courts shall have original jurisdiction of any civil action author-
ized by law to be commenced by any person:
. . « (3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States or by an Act
of Congress providing for equal rights of citizens or of all persons within
the jurisciction of the United States... .
4a Appendix A
1983, and that the court therefore lacked jurisdiction over
the subject matter.
On April 3, 1975, the court denied Fitzpatrick’s mo-
tion and ordered him to file an answer. It also ordered
both parties to file affidavits pertaining to their official
relationship and the facts surrounding Sprague’s discharge.
They complied.
Although the record is unclear on the point, the dis-
trict court apparently then decided, sua*sponte, to recon-
sider its denial of Fitzpatrick’s motion to dismiss. On
July 25, 1975, the court directed the parties to appear and
argue the relevance of Pickering v. Board of Education,
391 U.S. 563 (1968), to that motion. Fitzpatrick had not
renewed his motion to dismiss, but the court stayed plain-
tiffs discovery motions pending a ruling on dismissal. Evi-
dently, both parties considered the motion to dismiss still
before the court, for no objection was raised to this proce-
dure.
On January 9, 1976—nearly six months after announc-
ing its reconsideration of the dismissal motion—the court
dismissed the complaint. It rejected Fitzpatrick’s claim of
prosecutorial immunity, but found that Pickering and its
progeny foreclosed a finding of liability in this case. It
then grounded its dismissal on lack of jurisdiction over
the subject matter.
Il.
The procedural posture of this case is highly unusual.
It is clear that 28 U.S.C. § 1343(3) conferred upon the dis-
trict court jurisidction over the subject matter of Sprague’s
action. He alleged a deprivation under color of state law
of his constitutional rights—the plain object of section
1343(3). Moreover, once the court rejected Fitzpatrick’s
2
Appendix A 5a
assertion of prosecutorial immunity, it should have been
clear that Sprague had stated a claim upon which relief
could be granted. See, e.g., Pickering, supra; Roseman v.
Indiana University, 520 F.2d 1364 (3d Cir. 1975), cert.
denied, 424 U.S. 921 (1976).
The procedure followed by the court was actually a
dismissal for failure to state a claim under Fed. R. Civ. P.
12(b)(6), which—because matters outside the pleadings
had been presented to the court—was transformed into a
summary judgment under Fed. R. Civ. P. 56. 5 C. Wricut
& A. MiLLer, FEDERAL Practice & ProcepurRE § 1266
(1969). Fitzpatrick did not formally renew his motion to
dismiss under rule 12(b)(6), but both the plaintiff and the
court treated it as though it were still pending. There was
no disputed issue of material fact, and both parties clearly
acquiesced in the court's decision to consider the legal
issues in the case. Sprague does not contend that this de-
cision was error. Moreover, he waived any error when he
failed to object to the court’s decision to treat the motion
as still pending. Fed. R. Civ. P. 46.
In reconsidering the motion to dismiss, the court con-
sidered matters outside the pleadings, thereby converting
the dismissal into a grant of summary judgment pursuant
to rule 12(b)(6). Central Contracting Co. v. Maryland
Casualty Co., 367 F.2d 341, 343 (3d Cir. 1966). No point
3. Rule 12(b) reads in pertinent part as follows:
Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, cross-claim, or third-party claim, shall be
asserted in the responsible pleading thereto if one is required, ex that
the following defenses may at the option of the pleader be made by mo-
tion:
. . . (6) failure to state a claim upon which relief can be granted. . . .
If, on a motion asserting the defense numbered (6) to dismiss for failure
of the pleading to state a claim upon which relief can be granted, matters
outside the pleading are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given reasonable opportunity
to present all material made pertinent to such a motion by Rule 56.
6a Appendix A
would be served by remanding simply to permit the par-
ties or the court to renew and relabel the various motions
or orders; therefore, we will accept the view of the par-
ties that the dismissal was, in effect, a summary judgment
for defendant.’ Romero v. International Terminal Oper-
ating Co., 358 U.S. 354, 357 n.4 (1959).
Ill.
Fitzpatrick insists that the district court improperly
rejected his claim of prosecutorial immunity under sec-
tion 1983. We note that this immunity has not yet been
extended to “those aspects of the prosecutor's responsi-
bility that cast him in the role of an administrator or in-
vestigative officer rather than that of advocate.” Imbler
v. Pachtman, 424 U.S. 409, 430-31 (1976); see id. at 431
n.33. But Fitzpatrick maintains that prosecutorial im-
munity should be held to cloak administrative actions such
as the discharge involved here. The hiring and firing of
the subordinates through whom he acts, says Fitzpatrick,
is the District Attorney's ultimate discretionary act in his
service to the public; therefore, such decisions ought to
repose within the safe harbor of section 1983 immunity.
We need not resolve that thorny issue in this case.
Assuming, without deciding, that the district court cor-
rectly held defendant Fitzpatrick’s administrative action
outside the scope of prosecutorial immunity, we neverthe-
elss affirm the summary judgment for defendant. We do
so on the basis of Pickering and Roseman.
4. Other observers have commented as follows on this issue:
_. . [If the record clearly —— the issue as to whether summary
judgment sohuld be entered and both parties have had a reasonable —
tunity to present affidavits and other evidence, for the sake of judicial
economy appellate courts generally will make an immediate determination
of the issue rather than remanding the cases to the district court for dis-
position.
5 C. Weicut & A. Mitcer, Feperar Practice & Procepurne { 1266, at 680
n.67 (1969).
Appendix A Ta
In Pickering, a high school teacher wrote a letter to a
local newspaper criticizing the way the school board and
the superintendent had handled recent bond issues. The
board held a hearing and determined that many of the
statements in Pickering’s letter were false. It found his
action detrimental to the opeartion of the public schools
and dismissed him. [Illinois courts affirmed Pickering’s
dismissal. 391 U.S. 565-68.
The Supreme Court reversed, holding that the board’s
action violated Pickering’s right of free speech. As the
Pickering court saw it, the problem was to strike a balance
between the interest of the public employee as a citizen and
that of the state in promoting efficient performance of. its
employees. Id. at 568. Because of the infinite variety. of
situations in which such cirticism could arise, however, the
Court refused to establish a bright-line test for protected
speech in the public employee context. Id. at 569. Instead,
it adopted a balancing test, weighing the employee's inter-
est in free speech against the harm likely to result to the
state's provision of service. The crucial variant in this
balance appears to have been the hierarchial proximity of
the criticizing employee to the person or body criticized.
The court noted that the
statements are in no way directed towards any pesron
with whom appellant would normally be in contact in
the course of his daily work as a teacher. Thus no
question of maintaining either discipline by immediate
superiors or harmony among coworkers is presented
here. Appellant's employment relationships with the
Board and, to a somewhat lesser extent, with the su-
perintendent are not the kind of close working rela-
tionships for which it can be persuasively claimed that
personal loyalty and confidence are necessary to their
proper functioning.
8a Appendix A
Id. at 569-70. The Court also observed that “significantly
different considerations would be involved” in cases where
“the relationship between superior and subordinate is of
such a personal and intimate nature that certain forms of
public criticism of the superior by the subordinate would
seriously undermine the effectiveness of the working rela-
tionship between them.” Id. at 570 n.3. Several cases
have dealt with such disruptive statements and found them
outside first amendment protection. See, e.g., Clark v.
Holmes, 474 F.2d 928 (7th Cir. ), cert. denied, 411 U.S. 972
(1973); Duke v. North Texas State University, 469 F.2d
829 (5th Cir. ), cert. denied, 412 U.S. 932 (1973). See also
Meehan v. Macy, 393 F.2d 822, modified, 425 F.2d 469,
471, aff'd en banc, 425 F.2d 472 (D.C. Cir. 1968) (remand-
ing for reconsideration in light of Pickering, but indicat-
ing that on present state of evidence employee's speech
was unprotected ).
This court applied the Pickering balancing test in Rose-
man. Roseman, an associate professor at Indiana Univer-
sity, had criticized the acting chairman of her department's
teaching staff. One week later, the university decided
not to renew her contract. We affirmed the district court's
holding that Roseman’s statements “were not protected by
the First Amendment, and therefore might permissibly form
part of the basis” of her discharge. 520 F.2d at 1367. We
noted first that Roseman’s statements did not rise to the
level of public importance present in Pickering. Id. at
1368. Second, the crucial element of disruptive impact,
absent in Pickering, appeared in Roseman.
Pickering’s attacks were on a remote superintendent
and school board; in contrast, Roseman’s called into
question the integrity of the person immediately in
charge of running a department which, it is fair to
assume, was more intimate than a school district. The
li tenths iis in i
Appendix A Ga
district court found that “plaintiff's attacks upon
Faust’s integrity in a faculty meeting would undoubt-
edly have the effect of interfering with harmonious
relationships with plaintiffs superiors and co-work-
ers.” 382 F. Supp. at 1339. In making this finding, the
district court reflected a similar concern expressed by
the Supreme Court, which noted that Pickering’s
_Statements were “in no way diercted towards any per-
son with whom [Pickering] would normally be in con-
tact in the course of his daily work as a teacher.”
Pickering, supra at 569-70. Because of this, Picker-
ing’s case raised “no question of maintaining either
discipline by immediate superiors or harmony among
coworkers.” Id. at 570. The same obviously cannot
be said of Roseman’s faculty meeting accusations di-
rected at the Acting Chairman of her Department.
Id. at 1368-69 (footnote omitted ).
The case sub judice presents an even more egregious
example of disruptive impact. The court below found it
“beyond question” that Sprague’s statements had ‘toially
precluded any future working relationship between him and
the defendant ... .” The First Assistant District At-
torney—“alter ego” of the District Attorney, his direct
administrative and policy-making subordinate—declared
in public that his boss had not told the truth. The irrep-
arable breach of confidence between the two men is evi-
denced by Fitzpatrick’s immediate dismissal of Sprague
and Sprague’s failure to seek reinstatement as a form of
relief in this action. Certainly we could not expect a dis-
trict attorney to run an efficient office if his first assistant
were free to impugn his integrity in public.
It is true that Sprague’s interview, in contrast to Rose-
mans criticism’s, concerned matters of grave public import.
10a Appendix A
But this does not tilt the Pickering balance in favor of
first amendment protection where, as here, the effectiveness
of the employment relationship between employee-speaker
and employer-target is so completely undermined. Indeed,
the public uproar engendered by Sprague’s pronounce-
ments is precisely the factor that so thoroughly curtailed
Sprague’s usefulness as Fitzpatrick’s deputy. See Arnett
v. Kennedy, 416 U.S. 134, 161 (1974), citing with approval
Meehan, supra, 392 F.2d at 835 (public criticism of su-
periors can constitute cause for discharge to promote ef-
ficiency of service); Pickering, supra, 391 U.S. at 570 n.3
(suggesting that public criticism could be grounds for dis-
charge). Roseman did not hold that the public importance
of an employee's statements automatically created first
amendment protection. Instead, that importance may be,
mutatis mutandis, one of the factors to be weighed in favor
of protecting the employee-citizen’s right to speak on mat-
ters of general concern.’ Pickering, 391 U.S. at 573-74.
The key question under Pickering, however, is whether the
employment relationship has been seriously undermined.
Id. at 568-70. If the arousal of public contorversy ex-
acerbates the disruption of public service, then it weighs
against, not for, first amendment protection in the Picker-
ing balance.
For the foregoing reasons, the judgment of the district
court will be affirmed.
5. In Pickering, the Supreme Court held that since the subject matter of
the communications was only tangentially related to “the fact of employment,”
i.e., since Pickering’s knowledge and views about the use of school funds did
not depend on his relationship to the school board, the public importance of
the statements meant that the state employer could not punish him for making
them. 391 U.S. at 573-74. In this case, however, the fact of Sprague’s em-
ployment is inextricably intertwined with his knowledge and views about
Fitzpatrick’s performance as District Attorney. Sprague cannot claim to be
treated, for purposes of that issue, as_a mere “member of the general public,”
as Pickering could with respect to school bonds.
Appendix A lla
Chief Judge Seitz concurs in the result because of the
particular facts involved. He does so on the understanding
that the majority is not holding, in effect, that the disrup-
tive factor tips the scales in all such cases.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit.
12a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD A. SPRAGUE
v.
F. EMMETT FITZPATRICK, JR.
Crvi ACTION
No. 75-231
OPINION
DITTER, J.
January 9, 1976
The principal question presented by this case is whether
a district attorney's firing of his first assistant for publicly
criticizing him presents a colorable claim under the Civil
Rights Act of 1871, 42 U.S.C. §1983. Two cases—one
emanating from the United States Supreme Court and the
other from the Court of Appeals for this Circuit—persuade
me that it does not. The complaint accordingly will be
dismissed.’
Taking as true the allegations of the complaint, Cooper
v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 1734 (1964), and all
reasonable inferences deductible therefrom, Curtis v.
Everette, 489 F. 2d 516, 518 (3d Cir. 1973), cert. denied,
1. By an order dated April 3, 1975, 1 denied defendant's motion to dis-
miss plaintiff's amended complaint, see note 5 infra, or in the alternative to
require plaintiff to file a more specific complaint. As a result, however, of
information revealed in the affidavits made in response to the same order,
and in light of the decision of the Court of Appeals for the Third Circuit in
Roseman ¢ Indiana University of Pennsylvania, at Indiana, 520 F. 2d 1364
(3d Cir. 1975), I exercised my inherent authority to reexamine the propriety
of this court's jurisdiction, see, e.g., Mansfield Coldwater & Lake Michigan
Ry. ct. Swan, 111 U.S. 379, 4 S. Ct. 510 (1884); Observa-Dome Laboratories,
Inc. vt. McGraw-Hill, Inc., 343 F. Supp. 1030 (E.D. Pa. 1972), ordered re-
argument on the jurisdictional question, and now conclude that the complaint
cannot stand.
Appendix B 13a
416 U.S. 995, 94 S. Ct. 2409 (1974), the operative facts’
appear to be as follows. Plaintiff Richard A. Sprague was
first employed by the City of Philadelphia as an assistant
district attorney in February. 1958, and served as first
assistant district attorney* from June, 1966, through De-
cember, 1974. The defendant, F. Emmett Fitzpatrick, was
elected district attorney in the November, 1973, general
election, and in January, 1974, reaffirmed the designation
of plaintiff as first assistant.
Some months later a public controversy arose concerning
a series of statements made by the district attotrney to the
news media regarding the imposition of probation on a
criminal defendant whom he allegedly had represented
while privately engaged in the practice of law. Essen-
tially, Sprague contends that in these statements Fitz-
patrick variously attributed the recommendation of pro-
bation to evaluations of the case made by two assistant
district attorneys and to an agreement struck by his prede-
cessor and the accused. Sprague further avers he “knew”
that defendant's statements were untruthful and when one
of the major Philadelphia daily newspapers sought him
out asking specific questions concerning Fitzpatrick’s com-
ments, he recounted his understanding of how Fitzpatrick
had come to recommend probation. The newspaper inter-
on My order of April 3, 1975, referred to in note 1 supra, directed in part
t
each party file one or more affidavits pertaining to the official relationship
between them, the facts pertaining to plaintiff's dismissal and any othe;
relevant facts as to whether a valid cause of action exists . . .
Se melaint, plata clings Ghat the designation of Gast escistent
district a exists pursuant to County Code, Act of August 9, 1955,
P.L. 323, 16 P.S. §1421. While this once indeed was correct, the ew wen
Constitution was amended in 1961 to abolish all county in Phi phia,
including that of the district attorney, and grant all power to the city under
its Home Rule Charter Amendment of November 6, 1961, Article XIV, §8,
as amended, Pennsylvania Constitution, Article IX, §13. See also Common-
wealth ex rel. Specter v. Moak, 452 Pa. 482, 307 A.2d 884 (1973).
l4a Appendix B
view appearing the next day quoted Sprague as disputing
seriatim Fitzpatrick’s prior statements to the news media."
On the day following the publication of plaintiff's news-
paper interview, the parties met, at Fitzpatrick’s behest, in
his office. The outcome of that meeting was defendant's
request that Sprague resign, plaintiff's refusal to do so, and
defendant's dismissal of plaintiff from his post effective as
of that date.
Plaintiff subsequently instituted this action, alleging that
defendant’s termination of his employment constituted a
violation of his freedom of speech as guaranteed by the
First and Fourteenth Amendments and protected by the
Civil Rights Act.’ Although technically this opinion is
dispositive of the court’s sua sponte inquiry into its subject
matter jurisdiction, see note 1 supra, the issue which is ulti-
mately controlling was raised by defendant in each of his
motions to dismiss, see note 5, supra.
At the outset, I shall discuss briefly why Mr. Fitzpartick’s
other arguments are insufficient to justify dismissal of the
complaint.’ Fairly stated, defendant's first contention’ is
4. See The Philadelphia Inquirer, December 4, 1974, 1A, 14A.
5. Defendant moved to dismiss plaintiff's original complaint on the ground
that because of the allegation “that defendant had acted solely in his official
capacity,” Mr. Fitzpatrick was immune from suit and this court lacked juris-
diction over the subject matter. Apparently recognizing that the latter argu-
ment at least was not without some merit, see O'Brien v. Galloway, 362 F.
Supp. 901 (D. Del. 1973); cf. United States ex rel. Gittlemacker v. Philadel-
phia, 413 F.2d 84 (3d Cir. 1969), before this court had an opportunity to
act upon defendant's motion, plaintiff filed an amended complaint, alleging
that defendant's actions occurred “in his individual capacity under color of
state law.” Defendant thereafter moved to dismiss the amended complaint
or in the alternative to require plaintiff to file a more specific complaint,
which motion I denied in my aforementioned order of April 3, 1975, see notes
1 and 2 supra.
6. That dismissal of a complaint prior to the reception of any evidence
either by affidavits or admission is judicially disfavored seems clear. See
Scheuer t. Rhodes, 416 U.S. 232, 94 S. Ct. 1683 (1974). In this case, how-
ever, I not only have had the benefit of the parties’ affidavits, but also the
carefully researched briefs of counsel and two oral arguments.
7. A curious contention, raised by plaintiff for the first time in his memo-
randum of law in opposition to defendant's motion to dismiss the amended
Appendix B 15a
that since he was acting as district attorney* at the time of
the acts alleged in the indictment, he is immune from suit.
In Bowers v. Heisel, 361 F. 2d 581 (3d Cir. 1966), cert.
denied, 386 U.S. 1021, 87 S. Ct. 1367 (1967), the Court of
Appeals for this Circuit held that prosecuting attorneys
should enjoy the same immunity as is afforded members
they to sagsoeent Me, Fiapetch. Ne sloped: of tae ereck ah thane nase
tiff cites portions of the H R ennsylvani
statutes. Section 8-410 of the ne Ba ag Roe a ; need
kind due the City remain overdue and unpaid period i
days it shall be the duty of such officer, "department! bos phe
ee
And Section 1 of the Act of December 17, 1970, 71 P.S. $192, states:
It shall be unlawful for any officer, department, board or i
, , i
whe red —— e represent him or it in any — thing
the Cy Fay public business without the approval in writing o
_ Were I sitting in a state court, or were Pennsylvania la i
t —_— be necessary to consider this question = om length. ex y
| sposition of the case—on the motion of the court, see note 1 supra—I
not decide whether under these circumstances private counsel properly
may represent the district attorney.
Another challenge to the motion to dismiss—on the nd that it was filed
and served in disregard of the icable federal procedu
—was abandoned at the first oral argument. = anion m
8. A substantial split of authority exists on the question of whethe
ay mam district attorney is an official of the city or the | Rene
jan v. 807 Liberty Ave., 447 Pa. 281, 288 A2d 750 (1972); Com-
— th ex rel. Specter v. Bauer, 437 Pa. 37, 261 A.2d 573 (1970): Chalfin
v. Specter, 426 Pa. 464, 233 A.2d 562 (1967); Commonwealth ex rel. S
v. Martin, 426 Pa. 102, 232 A.2d 729 (1967); Commonwealth ex rel. Specter
. Freed, 424 Pa. 508, 228 A.2d 302 (1967); see also Commonwealth ex rel
pecter v. Moak, 452 Pa. 482, 307 A.2d 884 (1973). ,
A close reading of these decisions suggests that the status iladelphi
district attorney as an oficial of the city or Commonwealth, deperds
upon the purpose for which the question is bein asked and the composition
ak Pennsylvania Supreme Court at the time the question is posed
, its inconsistency concerning the status of the office of
mane held that all assistant } Be, nate a
a
See Comonwealth ex rel. Specter v. <=
16a Appendix B
of the judiciary." The court hastened to add, however,
that the immunity of a prosecutor is not unlimited, but
rather extends only to acts he performs within the author-
ity and jurisdiction of his office. 361 F.2d at 590-91. By
the time the Court of Appeals decided Cambist Films, Inc.
v. Duggan, 475 F. 2d 887 (3d Cir. 1173), almost seven
years after Bauers v. Heisel, supra, its views on prosecu-
torial immunity had been considerably sharpened and re-
fined. In its per curiam opinion in Cambist Films, supra,
the court stated:
It is [sic] generally settled principle of law that
a district attorney is a “quasi-judicial officer,” Com-
monwealth, ex rel. Specter v. Martin, 426 Pa. 102, 232
A. 2d 729 (1967), and in the performance of duties
imposed on him by law, he cannot be subjected to
personal liability through a common law action.
Pennsylvania law has [sic], as a general principle, that
quasi-judicial officers cannot be subjected to liability,
civil or criminal, for any of their judicial acts, no mat-
ter how erroneous, so long, as they act in good faith.
McNair’s Petition, 324 Pa. 48, 187 A. 498 (1936). See
discussion 63 Am. Jur. 2d §289. Federal courts have
similarly held. See Bauers v. Heisel, 361 F. 2d 581
(3 Cir. 1966). Cambist here refers to the language in
Bauers v. Heisel which implied that not all acts of a
district attorney should be immune. That case stated
that “° ° ° the immunity of a prosecutor, however, is
not without limitation; it is not absolute. The im-
munity of judges, from which immunity of prosecu-
tors is derivative, does not extend to acts which are
clearly outside their jurisdiction” This discussion in
9 See also Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971), cert. denied,
404 U.S. 1061, 92 S. Ct. 747 (1972); Cambist Films, Inc. v. Duggan, 475
F 2d 887 (3d Cir. 1973). Turack v. Guido, 464 F.2d 535 (3d Cir. 1972);
United States vt. ex rel. Moore vc. Koelzer, 457 F.2d 892 (3d Cir. 1972).
Appendix B 17a
Heisel pertains to cases involving alleged violations of
the Civil Rights Act, not common law tort actions. In
such cases Heisel recognized a distinction that needs
be observed between excess of jurisdiction, a circum-
stance which would not allow liability, as opposed to
the clear absence of all jurisdiction over the subject
matter, which could result in liability for the judicial
official in Civil Rights circumstances. Robichaud v.
Ronan, 351 F. 2d 533 (9 Cir. 1965); Lewis v. Brauti-
gam, 227 F. 2d 124 (5 Cir. 1955). Even considering
the possible civil rights problem here, no liability can
be attributed to the prosecutor in our present case
because he was not acting where he clearly had no
jurisdiction. He was investigating an alleged viola-
tion of the laws of Pennsylvania, which was within
his powers and duties, and the actions which he pro-
scribed in this instance were such as he felt neces
to the enforcement of those laws. Obviously, this case
in no way approaches the “clear absence of jurisdic-
tion” standard required for possible liability on the
part of the prosecutor.
475 F. 2d at 888-89,"°
The question here, then, is whether defendant solely by
virtue of his status as a quasi-judicial officer, is immune
from suit under Section 1983 for his actions in the capacity
of an employer. I think quite clearly he is not, and I so
hold today. The traditional considerations advanced in
support of the doctrine of quasi-judicial immunity, see
10. Other courts have somewhat more jealous rded t
of the immunity wits which they are willing to oak + A meme ———
where he strays across the often ill-defined line between quasi-judicial functions
Fe wagon ‘ e.g., Apton v. Wilson, 506 F.2d 83 (D.C. Cir
; Weathers v. Ebert, ©°S F.2d 514 (4th Cir.
Ronan, 351 F.2d 533 (9th Cir. 1973). oo
18a Appendix B
Bauers v. Heisel, supra, 361 F. 2d at 589-90," do not de-
mand, and the “well settled proposition that the employ-
ment of a public employee may not, in general, be termi-
nated for [the] exercise of constitutionally protected
rights,” Leslie v. Philadelphia 1976 Bicentennial Corpora-
tion, 343 F. Supp. 768, 769 (E.D. Pa. 1972),’* will not
tolerate the wholesale immunity claimed by defendant.
Defendant’s second argument—that the amended com-
plaint should be dismissed for lack of specificity—is devoid
of merit. It is, of course, the rule in this circuit that Section
1983 actions must be specifically pleaded in order to with-
stand a motion to dismiss, Kauffman v. Moss, 420 F. 2d
1270, 1275 & n. 13 (3d Cir.), cert. denied, 400 U.S. 846,
91 S. Ct. 93 (1970); Negrich v. Hohn, 379 F. 2d 213, 215
(3d Cir. 1967),"* and that broad, conclusory allegations,
unsupported by specific factual contentions, are insufficient
to state a claim upon which relief may be granted, id.”
11. There the court stated:
[W]e believe that both reason and precedent require that a prosecuting
attorney should be granted the same immunity as is afforded members of the
judiciary. The reasons are clear: his primary responsiblity is essentially
judicial—the prosecution of the guilty and the protection of the innocent,
Griffin v. United States, 295 F. 437, 439-440 (C.A. 3, 1924); his office is
vested with a vast quantum of discretion which is necessary for the vindication
of the public interest. In this respect, it is imperative that he enjoy the same
freedom and independence of action as that which is accorded members of
the bench. This reasoning is nearly as well established in Anglo-American
law as judicial immunity itself [footnote omitted].
12. See, e.g., Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694 (1972);
Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731 (1968);
Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 765 (1967); Shelton
t. Tucker, 364 U.S. 479, 81 S. Ct. 247 (1960); Wieman v. Updegraff, 344
U.S. 183, 73 S. Ct. 215 (1952); Commonwealth of Pennsylvania ex rel. Raf-
ferty v. Philadelphia Psychiatric Center, 356 F. Supp. 500 (E.D. Pa. 1973).
13. See also Scott v. University of Delaware, 385 F. Supp. 937, 944 (D.
Del. 1974); Salvati v. Dale, 364 F. Supp. 691, 700 (W.D. Pa. 1973); cf.
Pugliano v. Staziak, 231 F. Supp. 347, 349 (W.D. Pa. 1964), afl’d, 345 F.2d
797 (3d Cir. 1965).
14. See also Scott v. University of Delaware, supra at 944; Salvati v. Dale,
supra at 700; Buszka v. Johnson, 351 F. Supp. 771, 773 (E.D. Pa. 1972);
Mason v. Delaware County, 331 F. Supp. 1010, 1017 (E.D. Pa. 1971); John-
son v. Kreider, 264 F. Supp. 188 (M.D. Pa. 1967 ); Wagner vc. Maroney, 263
F. Supp. 377, 378 (W.D. Pa. 1967).
Appendix B 19a
<
It is plain, however, from even a cursory reading of the
amended complaint, and from the fact that defendant
understood the assertions to such an extent that he was able
to identify the decisional authority which support them,"
that the pleading in question easily satisfies the specificity
requirement. die
The ground upon which I conclude that the complaint
must be dismissed was first raised by Mr. Justice Mar-
shall in a footnote in Pickering v. Board of Education, 391
U.S. 568, 88 S. Ct. 1731 (1968). . Pickering involved a
high school teacher who was discharged for writing a let-
ter to local newspapers in connection with a proposed tax
increase. In his letter he had criticized the manner in
which the board of education and the district superin-
tendent of schools had handled prior proposals for rais-
ing revenue for the schools. Id. at 564, 88 S. Ct. at 1732-
33. The Court found that some statements in Pickering’s
letter were true, some although not malicious Were false,"
but all fell within the protection of the First Amendment.
Id. at 572-74, 88 S. Ct. at 1736-38.
15. See Memorandum in Su of [de , i ismi
a 4g pport [defendant's first] Motion to Dismiss,
16. The Court specifically held that absent proof of false statements know-
ingly and recklessly made by yy his exercise of his right to wedi on
issues of public importance could not furnish the basis for his dismissal from
public employment. Pickering v. Board of Education, 391 U.S. 563, 574, 88
S. Ct. 1731, 1738 (1968). See also Cantrell v. Forest City Publishing Co.,
418 U.S. 909, 95 S. Ct. 465, 470 (1974); Gertz v. Robert Welch, Inc., 418
U.S. 323, 94 S. Ct. 2997 (1974); Curtis Publishing Co. v. Britts, 388 U.S. 130
87 S. Ct. 1975 (1967); Time, Inc. v. Hill, 385 U.S. 374, 87 S. Ct. 534 (1967).
New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710 (1964).
. My oe oe gy oer in - affidavit or in the various documents
is attorney, characteri aintiff’s stat t i
disregard of the truth. Rather he has stated that pon an ee
[W)hile the subject he chose to comment upon involved a difference of
opinion concerning the prosecution of one case, I have little doubt that
- b>. challenge to my authority was intended to enable him to return
2 ae of unfettered power he enjoyed under the previous ad-
re » hag on * Defendant's Motion to Dismiss Amended Complaint
20a Appendix B
With respect to the possible impact of Pickering’s letter
upon the context of an ongoing employer-employee rela-
tionship, the Court stated:
The statements are in no way directed towards any
person with whom appellant would normally be in
contact in the course of his daily work as a teacher.
Thus no question of maintaining either discipline by
immediate superiors or harmony among coworkers is
presented here. Appellant's employment relation-
ships with the Board, and to a somewhat lesser ex-
tent, with the superintendent are not the kind of
close working relationships for which it can persu-
asively be claimed that personal loyalty and con-
fidence are necessary to their proper functioning.
Id. at 569-70, 88 S. Ct. at 1735. Then, in a footnote
pregnant with implications for the case at bar, the court
said:
It is possible to conceive of some positions in public
employment in which the need for confidentiality is
so great that even completely correct public state-
ments might furnish a permissible ground for dismis-
sal. Likewise, positions in public employment in
which the relationship between superior and subordi-
nate is of such a personal and intimate nature that
certain forms of public criticism of the superior by
the subordinate would seriously undermine the effec-
tiveness of the working relationship between them
can also be imagined. We intimate no views as to
how we would resolve any specific instances of such
situations, but merely note that significantly different
considerations would be involved in such cases.
Id. at 570 n.3, 88 S. Ct. at 1735 n. 3. This chord was
echoed by Mr. Justice Rehnquist who, writing for the
Appendix B Qla
plurality in Arnett v. Kennedy, 416 U.S. 134, 160-61, 94
S. Ct. 1633, 1647 (1974), cited Pickering for the proposi-
tion that “in certain situations the discharge of a govern-
ment employee may be based on his speech without of-
fending guarantees of the First Amendment.” ™
Prior to Roseman v. Indiana University of Pennsylvania,
at Indiana, 520 F.2d 1364 (3rd Cir. 1975), little had been
said in the way of decisional authority concerning pre-
cisely what the “significantly different considerations”
alluded to in Pickering might be. One circuit judge sug-
gested that such factors might include “the need for loyal
and sympathetic employees "* in positions of discretion,”
the need to ensure obedience to state policy, and the need
to prevent impropriety or its appearance.” Nunnery v.
Barber, 503 F.2d 1349, 1361 (4th Cir. 1974) ( Butzner, J
dissenting ).”
17. The factual situation in Arnett admittedly was markedly different than
that in the case at bar. Kennedy was a non robationary federal emplovee
who contended that his dismissal from the ce of Economic Opportunity
constituted a denial of due process and an infringement of his right to free-
dom of speech. In reversing a judgment of a three judge district court for
the plaintiff, a plurality of the Supreme Court held, inter alia, that the Lloyd-
LaFollette Act, 5 U.S.C. §7501, which authorizes removal or suspension of
nonprobationary federal employees “for such cause as will promote the ef-
ficiency of the service” is intended to permit dismissal for speech as well as
for other conduct. Arnett v. Kennedy, 416 U.S. 134, 162, 94 S. Ct. 1633,
1647 (1974).
18. Neither party has asserted, nor does the record suggest, that plaintiff's
was what traditionally has been regarded as a political tronage position,
or that his discharge might be termed a patronage raed For a discussion
of the considerations which would come into play in the context of a patron-
age discharge, see, e.g., Illinois State Em s Union Council 34, American
Federation of State, County and Munici Employees, AFL-CIO v. Lewis,
473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1364
(1973); Alomar v. Dwyer, 447 F.2d 482 (2d Cir. 1971), cert. denied, 404
U.S. 1020, 92 S. Ct. 683 (1972): Nunnery v. Barber, 503 F.2d 1349 (4th
Cir. 1974); County & Municipal Employees v. Shapp, 443 Pa. 527, 280 A.2d
375 (1971). Comment, Patronage Dismissals: Constitutional Limits and
Political Justifications, 41 U. Chi. L. Rev. 297 (1974).
19. A relationship requiring personal loyalty or devotion also was suggested
in Ramsey v. Allen, 501 F.2d 1090, 1098-99 (10th Cir. 1974).
20. Nunnery involved the manager of a state operated liquor store, a
patronage employee, who contended that her discharge constituted a violation
22a Appendix B
By far the most instructive pre-Roseman case, however,
was Meehan v. Macy, 129 U.S. App. D.C. 217, 392 F.2d
822, modified, 138 U.S. App. D.C. 38, 425 F.2d 469 (1968),
affirmed en banc, 138 U.S. App. D.C. 41, 425 F.2d 472
(1969). Meehan was an employee of the Panama Canal
Zone who had been discharged for arranging the printing
and distribution of a scurrilous satire of the governor of
the Canal Zone and his policies. The court recognized
that although a free society values robust, vigorous, and
essentially uninhibited public speech by citizens, when
such speech by government employees produces intoler-
able disharmony, inefficiency, dissension, and even chaos,
it may be subject to reasonable limitations, at least con-
cerning matters within the duties, discretion and judgment
entrusted to the employee involved. 302 F.2d at 833. Then,
in an oft-quoted” passage epitomizing the pragmatism
which all too frequently escapes judicial attention, Judge
Leventhal stated.
We think it is inherent in the employment relation-
ship as a matter of common sense if not common law
that an employee in appellant's circumstances can-
not reasonably assert a right to keep his job while at
the same time he inveighs against his superiors in
public with intemporate and defamatory lampoons.
We believe that [an employee] cannot fairly claim
that discharge following an attack like that presented
by this record comes as an unfair surprise or is so un-
of her civil rights. In affirming the district Court's dismissal of the complaint,
the court of appeals held since plaintiff had knowingly accepted her position
on a patronage ton, her allegation that her discharge was for patronage pur-
poses in violation of her First Amendment rights failed to state a claim under
Section 1983. Nunnery v. Barker, 503 F.2d 1349, 1359-60 (4th Cir. 1974).
21. Most notably, this passage was quoted with ne in Mr. Justice
Rehnquist's opinion for the plurality in Arnett v. Kennedy, supra note 16, 416
US. at 161-62, 94 S. Ct. at 1648. See also Fisher ce. Walker, 464 F.2d 1147,
1154 (10th Cir. 1972); Magri v. Giarrusso, 379 F. Supp. 353, 358-59 (E.D.
Lia. 1974).
Appendix B 23a
expected and uncertain as to chill his freedom to en-
gage in appropriate speech.
Id. at 835. I fully agree, and find this reasoning quite ap-
posite to the case at bar.
Roseman v. Indiana University of Pennsylvania, at
Indiana, supra, represents the first definitive consideration
by the Court of Appeals for the Third Circuit of those
aspects in Pickering germane to this case.” Roseman was
an associate university professor who alleged that the non-
renewal of her contract was at least in part in retaliation
for her exercise of protected speech. Specifically, during
the period of time in which her renewal was under con-
sideration by the faculty committee on merit and tenure
she involved herself in a controversy concerning the chair-
manship of her department. She complained to the dean
of the college of arts and sciences that she believed the
acting chairman was wrongfully suppressing the applica-
tion of the candidate she favored. The following month
at the invitation of the dean, she repeated these charges
at a meeting of the department's teaching staff. One week
later, the commitee on merit and tenure, of which the acting
chairman was a member, decided not to renew her con-
tract, and university officials subsequently ratified that
decision.
In its judgment for the defendants the district court
rejected Roseman’s free speech argument on two grounds.
First, the court found that there were adequate work-
22. My research reveals that prior to Roseman, the onl
é " f 4
Court of Appeals for the Third Circuit to that portion of teleoen on -
statement in Alderman v. Philadelphia Housing Authority, 496 F.2d 164, 173-
74 (3d Cir. 1974), citing Pickering by way of a footnote, that
e — agony ee — a pis my agency may have a sig-
weighty interest in ati : : its
than in regulating that of the pdine poy ben — . re
24a Appendix B
related reasons for not renewing her contract.” Alter-
natively, the court concluded that her statements to the
dean and at the faculty committee meeting were not pro-
tected by the First Amendment, and therefore permissibly
might form part of the basis for her dismissal. Although
the Court of Appeals disagreed with the district court's
reasoning on the first ground,” it affirmed, on the basis of
Pickering, supra, the alternative rationale.
In distinguishing Roseman from Pickering, Judge Van
Dusen said:
The communications made by the plaintiff in the
case before us differ from Pickering’s in two crucial
respects. In the first place, Roseman’s expressions
were essentially private communications in which
only members of the Foreign Languages Department
and the Dean of the College of Arts and Sciences were
shown by the plaintiff to have had any interest. Pic-
kering’s letter to the editor, urging the electorate with
respect to a pending tax proposal, was, by contrast, a
classic example of public communication on an issue
of public interest. In Pickering, as in other cases,
the Supreme Court inquired into the public nature
of a communication in determining the degree of First
Ainendment protection. As Roseman’s communica-
23. Roseman v. Hassler, 382 F. Supp. 1328, 1331-32 (W.D. Pa. 1974).
24. Id. at 1340.
25. The district court had held that plaintiff had the burden of proving by
a preponderance of the evidence that her non-retention was caused in sub-
stantial part by her exercise of the right of freedom of speech. Id. at 1339.
Relving on Skehan v. Board of Trustees, 501 F.2d 31, 39 (3d Cir. 1974),
vacated and remanded on other grounds, — U.S. —, 95 S. Ct. 1986 (1975),
and Simard v. Board of Education, 473 F.2d 988, 995 (2d Cir. 1973), the
Court of Appeals held that it is ‘nsufficient to find that other adequate grounds
existed for a plaintiff's dismissal, or even that retaliation did not constitute
a substantial part of the reason for his discharge. Rather, a plaintiff “need
only prove that the discharge was ‘predicated even in part on his exercise
of first amendment rights.” Roseman v. Indiana University of Pennsylvania,
at Indiana, note 1 supra, 520 F.2d at 1367.
Appendix B 25a
tions were made in forums not open to the general
public and concerned an issue of less public interest
than Pickering’s, the First Amendment interest in
their protection is correspondingly reduced.
The second respect in which Roseman’s communi-
cations differ from Pickering’s is in their potentially dis-
ruptive impact on the functioning of the Department.
Pickering’s attacks were on a remote superintendent
and school board; in contrast, Roseman’s called into
question the integrity of the person immediately in
charge of running a department which, it is fair to
assume, was more intimate than a school district. The
district court found that “plaintiff's attacks upon
Faust integrity in a faculty meeting would un-
doubtedly have the effect of interfering with har-
monious relationships with plaintiff's superiors and
co-workers.” 382 F. Supp. at 1339. In making this
finding, the district court reflected a similar concern
expressed by the Supreme Court, which noted that
Pickering’s statements were “in no way directed to-
wards any person with whom [Pickering] would nor-
mally be in contact in the course of his daily work as
a teacher.” Pickering, supra at 569-70. Because of
this, Pickering’s case raised “no question of maintain-
ing either discipline by immediate superiors or har-
mony among coworkers.” Id. at 570. The same
obviously cannot be said of Roseman’s faculty meet-
ing accusations directed at the Acting Chairman of
her Department. [footnote omitted].
520 F.2d at 1368-69. On the basis of those distinctions,
the court concluded that Roseman’s communications fell
outside the protection of the First Amendment, and that
therefore the University did not infringe her freedom of
26a Appendix B
speech even if it considered her statements in deciding not
to renew her contract.”
In terms of the aforementioned criteria, the instant case
falls somewhere between Pickering and Roseman. Pilain-
tiff here, like Pickering but unlike Roseman, aired his views
in a forum accessible to the general public, namely a news-
paper.” As in Roseman but not Pickering, however, plain-
tiff’s communications here “called into question the integ-
rity of the person immediately in charge,” 520 F.2d at
1368, and were directed toward [a] person with whom
[he] would normally be in contact in the course of his
daily work,” Pickering, supra, 391 U.S. at 569-70, 88 S.
Ct. at 17. That plaintiff's statements would interfere with
harmonious relationships with his co-workers, and indeed
that they have totally precluded any future working rela-
tionship between him and the defendant, are beyond ques-
tion." Indeed, plaintiff himself implicitly concedes this
26. The court of appeals affirmed the district court's rejection of Roseman ’s
other allegations, i.e. that her non-renewal violated her right to a pre-termina-
tion hearing and penalized her for her religious beliefs. Id. at 1366 n. 3.
27. I deem as inconsequential the fact that Pickering wrote a letter to the
editor of the newspaper, while Mr. Sprague contends that he was sought out
Ly reporters for an interview, see pages 2 & 3 supra.
28. Of the relationship between the district attorney and his first assistant,
Mr. Sprague stated in his affidavit
_ . . the First Assistant District Attorney is the administrative head of the
District Attorney's Office, whose job it is to see that the established policies
are carried out.
Invariably, District Attorneys use the First Assistant District Attorney
for purposes of assistance in formulating policies in the first instance.
When a policy has decreed by the Office of the District Attorney, it is
the function of the First Assistant to see that the policy is followed.
In the normal operation of the District Attorney's Office in Philadelphia,
it is the First Assistant who, in fact, sees to the administration of the
Office on a day-to-day basis. There are great numbers of Assistant District
Attorneys in various units, each with its own department and its own
administrative chief, all of whom report to the First Assistant. It is one
of the First Assistant's functions to ensure that each unit is properly ad-
ministered by the person in charge of that unit and that each one in fact
is doing his duty. It is a function of the First Assistant to see that the
District Attorney is kept advised as to the functioning of the Office.
And, of course, the First Assistant must always be available for con-
sultation in regard to handling investigations and supervising the various
work of the Office including, especially, supervision of the prosecutorial
work of the Office.
Appendix B 97a
point by his failure to seek relief in the form of reinstate-
ment to his former position.”
‘Th » question becomes, then, whether the result in
Pickering or Roseman controls where an employee's com-
Thus it can be said that the District Attorney sets policy fo i
trict Attorney's Office, that the First Assistant sees that the ates A
the District Att are carried out and that he day-o-day operaions of
the Office are and carried out in a proper, expeditious fashion.
The First Assistant is also an adviser to the District a with regard
to suggestions and a em of various programs within a District
Attorney's Office Affidavit of Richard Sprague, Document No. 14, 1-2.
29. By contrast, the Fes in Pickering v. Board of Education, supra;
Acanfora v. Board of Education, note 32 infra; Roseman v. Indiana University
of Pennsylvania, at Indiana, supra; Nunnery v. Barber, supra; Skehan v. Board
of Trustees, supra; O'Brien v. Galloway, 362 F. Supp. 901 (D. Del. 1973):
and numerous other cases all sought reinstatement as an avenue of relief. __
That plaintiff here did not seek to be reinstated may be owing in part
» > ee re ga with certain policies initiated by defendant, and
poe 4 Ae oe “ to he the increasing isolation of his office. Mr. Sprague
In short, Mr. Fitzpatrick itted the administraciv ions
First Assistant District po me to be ndwatend ent my how: pte
ure, rendered nugatory. ; soli
In addition, during the same period, Mr. Fitzpatrick, notwithstanding
his initial assurances that the advice and counsel of the First Assistant
District Attorney would continue to be sought where policy matters were
concerned, p ressively excluded the First Assistant District Attorney
from policy- -. 2 One example of this aspect of the relationship was
in the area of “plea bargaining.” Contrary to prior cmtinnend con-
trary, in the opinion of your Affiant, to the proper administration of the
criminal justice system—Mr. Fitzpatrick decreed that each Assistant
District Attorney was free, on an individual case-by-case basis, to enter
into any agreement, “deal,” or plea bargain that he (the individual As-
sistant ) decided upon without regard to other matters in the Office and
without first having consulted with his (the individual Assistant's) supe-
rior, or with his (the individual Assistant's ) superior, or with the First
Assistant District Attorney or, indeed, the District Attorney himself. _
In my capacity as First Assistant District Attorney, I told Mr. Fitz-
patrick that his “system” of plea bargaining was an anarchy. I further
opined to Mr. Fitzpatrick that his “system” was not a responsible one
in terms of the public trust which attaches to the Office of District At-
torney. Nevertheless, Mr. Fitzpatrick continued with this policy of plea
bargaining, justifying it in terms of prompt and expeditious disposition
of serious criminal matters. Indeed, Mr. nde genes rejected my
suggestion that Assistant District Attorneys be required, after the fact at
- least, to re in writing to him and to me any plea bargain which
they had struck. The purpose of the reporting being, obviously, to en-
sure even-handed justice within the Office and to provide for proper
supervision and administration of the Assistants.
m AY — both in — i administration and in terms of policy
as rressively x i i SiS istric:
on enon -— relegated to being First Assistant District
Affidavit of Richard A. Spravue, note 28 supra, at 3-5.
28a Appendix B
munications touch upon matters of public concern” and
are channelled through a public forum,” but nevertheless
have such a calamitous and disruptive impact as to fore-
close any possible effective working relationship between
the employee and his immediate superior. 1 conclude that
notwithstanding the publiccharacter of plaintiff's state-
ments, Roseman is the stronger precedent here. Plain-
tiff's statements here are strikingly analogous to Roseman’s
accusations against her acting department chairman and
quite unlike Pickering’s attacks upon a “remote superin-
tendent and school board.” Plaintiff must have known
and expected that the inevitable result of his statements—
whether they be true or false—would be the abrupt termina-
tion of his employment. The practicalities inherent in the
superior-subordinate situation presented here dictate that
defendant's dismissal of plaintiff not give rise to liability
under the Civil Rights Act.
For all the foregoing reasons, then, the complaint wil!
be dismissed.
30. Scandals at all levels of government within the last few years have
demonstrated, if nothing else, that the truthfulness of an elected official with
the public whose responsibility it is to serve is crucial to the integrity of the
democratic process.
31. The Court of Appeals stated in Roseman, supra, that had the com-
munications of the plaintiff in that case to the dean ‘and at the faculty meeting
been on issues of public interest, or had convinced local news media that her
grievance was newsworthy, “entirely different considerations would come into
play.” 520 F.2d at 1368 n.10. In support of this proposition, the court cites
Acanfora v. Board of Education, 491 F.2d 498, 500-01 (4th Cir.), cert. denied,
419 U.S. 836, 95 S. Ct. 64 (1974). There it was held that a teacher who
had been transferred to a non-teaching position when school officials learned
that he was a homosexual could grant interviews to the news media with
the protection of the First Amendment.
But even in the passage cited in Roseman the court says
There is no evidence that the interviews disrupted the school, substan-
tially impaired his capacity as a teacher, or gave the school officials rea-
sonable grounds to forecast that these results would flow from what he
said.
491 F.2d at 498. And the opinion as a whole leaves no question that the
actual or likely impact of a communication upon the employment. situation
is of paramount importance in considering the propriety of the employer's
response to the communication. Acanfera is Gaukee’ in complete accord
with my disposition of the instant suit.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.