# Petition — Sprague v. Fitzpatrick > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1378%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 431 U.S. 937 ## Text [ 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. 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1378%3A1. Public record. Not legal advice.