Reply Brief — Cheek v. City of Edwardsville, Kansas (No. 08-1295)

Supfeme Court. US

No. 08-1295 FILEO

| JUL 22 229

_OFFICE OF THE CLERC

Co

Hn The

Supreme Court of the Anited States

6

JEFFREY CHEEK AND ALVIN DOTY,

Petitroners,

THE CITY OF EDWARDSVILLE, KANSAS;

JOHN BROMAN; JENNIFER BURNETT; TIM KELLY;

DOUG SPANGLER; AND LLOYD BETH,

Respondents.

€

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

o

REPLY BRIEF

-@

G. GORDON ATCHESON

Counsel of Record

THE ATCHESON LAW OFFICE

4800 Rainbow Blvd., Suite 6

Westwood, Kansas 66205

(913) 362-8650

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2531

TABLE OF CONTENTS

Page

‘rable of Authorities .................0css.+. Pe siekcavawadeuieees li

Reasons The Petition Should Be Granted........... 1

1. Circuit Split on Free Speech Rights .......... N

2. Respondents Rest on Misdirection............

3. Circuit Split Continues to Widen..............

ere EM eeeidla a Mies ad sha nuk kt es encase en 11

TABLE OF AUTHORITIES

CASES

Abdur-Rahman v. Walker, 567 F.3d 1278 (11th

Cir. 2009)

Brammer-Hoelter v. Twin Peaks Acad., 492

F.3d 1192 Cae Be i crchcecescecseess 9,10

Charles v. Grief, 522 F.3d 508 (5th Cir. 2008)

Cheek v. City of Edwardsville, 514 F.Supp.2d

1236 (D. Kan. 2007)

Davis v. Cook County, 534 F.3d 650 (7th Cir.

2008)

Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008) ..2, 11

Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006),

cert. denied, 549 U.S. 1323 (2007)

Garcetti v. Ceballos, 547 U.S. 410 (2006) passim

Lindsey v. City of Orrick, Missourt, 491 F.3d

SOD (Sei Coe Be ac rcceecccscccccese. Ld

Marable v. Nitchman, 511 F.3d 924 (9th Cir.

2007 ) ....000s0enanecauglatIIEIRE Dale anugsececseccces. 8,9

Pickering v. Board of Education of Township

High School Dist. 205, 391 U.S. 563 (1968)

Rangra v. Brown, 566 F.3d 515 (5th Cir. 2009)........... 9

Robinson v. York, 566 F.3d 817 (9th Cir. 2009)

Trigillo v. Snyder, 547 F.3d 826 (7th Cir. 2008)

Waters v. Churchill, 411 U.S. 661 (1974)

TABLE OF AUTHORITIES —- Continued

Page

CONSTITUTION AND STATUTES

Res SOME, IIE FB vio sdcksesvcstncscsssveresscesues ..+.. passim

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Pits te i cstv ecipunsiniaceiecaebaninin acai ae 6

Be dis. MN AANA vu ecsnsxivnscancnpncastcasandiasbeeoees ee 4

OTHER

Merriam-Webster Collegiate Dictionary, 11th

i: SENNA RAE SEES TOE Nh PEE Oe 5

REASONS THE PETITION

SHOULD BE GRANTED

1. Circuit Split on Free Speech Rights. In

their opposition to the petition for writ of certiorari,

Respondents tacitly concede the appellate courts have

divided over how to apply the job-relatedness limita-

tion on the free-speech rights of public employees

announced in Garcetti v. Ceballos, 547 U.S. 410, 421-

22 (2006). Those divisions continue to fracture the

law defining First Amendment protections for govern-

ment employees. Because of both the importance of

those constitutional rights and the disagreements

among the lower courts in identifying protected

speech since Garcetti, this Court should grant the

petition to add much needed depth and dimension to

the analysis of job-relatedness. Respondents do not

dispute the significance of the fundamental constitu-

tional rights implicated here. Nor could they. And

they do not suggest review to be unnecessary by

showing the lower courts have uniformly interpreted

Garcetti. Again, they could not. The appellate courts

apply Garcetti without continuity or even coherence

across the circuits. Pet. at 24-26.

Instead, Respondents attempt to trowel over the

sound bases for granting the petition with a diffuse

rendition of the summary judgment record that

simultaneously omits contextually pertinent facts and

belabors points largely irrelevant on certiorari. This

case actually presents an especially appropriate ve-

hicle for amplification of the standards governing

whether a public employee’s speech relates to her job

2

duties in a way that precludes First Amendment

protection. The issue was central to the outcome

below and, hence, to the questions presented here.

The district court entered summary judgment

against Petitioners Cheek and Doty based solely on a

determination their speech lacked constitutional pro-

tection under Garcetti because it ostensibly related to

their jobs. App. 35-36. Moreover, the trial court

recognized that the factual record would have allowed

Cheek and Doty to present their case to a jury under

the pre-Garcetti analysis of public employee free

speech claims. Cheek v. City of Edwardsville, 514

F.Supp.2d 1236, 1245-46 (D. Kan. 2007) (decision in

companion case). See also Pet. at 9 n.3 (Pickering-

Connick analysis described). The Court of Appeals

affirmed simply by rejecting the notion that a public

employee automatically receives constitutional pro-

tection if she communicates with an outside agency or

entity, although Cheek and Doty never relied on that

facile argument. App. 6-7. Cheek and Doty actually

argued that speech communicated outside the em-

ploying governmental unit typically receives First

Amendment protection and that nothing required a

different result in their case. See Davis v. McKinney,

518 F.3d 304, 313 (5th Cir. 2008); Freitag v. Ayers, 468

F.3d 528, 545 (9th Cir. 2006), cert. denied, 549 U.S.

1323 (2007). In short, this case turns on the issue

of job-relatedness under Garcetti. Moreover, the

scenario here — municipal employees communicating

as witnesses with investigators from an outside

government agency — reflects one of the most extreme

deprivations of First Amendment protection exacted

in the name of Garcetti. Pet. 14, 26-27. Respondents

neither dispute that characterization nor offer any

examples to refute it.

2. Respondents Rest on Misdirection.

Lacking a compelling rejoinder, Respondents choose

to muddle the factual! record here. They try to portray

Cheek and Doty as having undertaken an official

Edwardsville police department investigation into

municipal corruption only to then hand off the probe

to the Kansas Attorney General’s office. But that is

incorrect. The Edwardsville police union initially

contacted the Edwardsville City Council about the

official misfeasance. App. 20-21. As majors in the

police department, Cheek and Doty did not belong to

the union, and the organization did not represent

them. App. 24. When the City Council took no

corrective action, two union officials went to the

Attorney General’s office. App. 20-21. The Attorney

General initiated the investigation. App. 12, 21.

Cheek and Doty then communicated with those

investigators many times. Cheek continued to meet

with representatives of the Attorney General’s office

even after he was fired on May 8, 2006; he gave

sworn testimony to the investigators in June.’ App.

' Cheek testified at what is known as an inquisition. Under

state law, the Kansas Attorney General or a local prosecutor

may convene an inquisition upon order of a judge to investigate

potential crimes. Witnesses can be subpoenaed to appear in a

closed meeting — the inquisition — to give sworn testimony to the

(Continued on following page)

21. Those ongoing contacts reflect the investigators’

interest in Cheek as a witness and not merely in his

official capacity as a major or acting chief in the

Edwardsville police department. Doty had similar

communications with the investigators, but did not

testify.

Respondents point out that the Edwardsville

police department sometimes began criminal or inter-

nal affairs investigations only to join with another

law enforcement agency to finish the work. But those

circumstances are not analogous. For example, as the

district court noted, what started as an internal

affairs investigation of a subordinate officer even-

tually was turned over to the Federal Bureau of

Investigation with the chief’s approval. App. 15-16

(Rogoza matter). At the City Council’s insistence, the

police department called in a detective from a neigh-

boring municipality to complete an internal affairs

investigation of another officer. App. 16 (Marble

matter). In this instance, however, the Edwardsville

police department had begun no corruption investiga-

tion and did not seek outside assistance to do so.

Rather, the union representatives — not ranking po-

lice department officers — went to the Attorney Gener-

al to share what they knew in the hope the State

would act. Cheek and Doty spoke with the Attorney

General’s office only after the State had begun its

prosecutor. See K.S.A. 22-3101, et seq. An appearance does not

suggest guilty knowledge, but merely knowledge.

5

investigation. And then they spoke as witnesses, not

as coordinating investigators tracking down leads or

gathering evidence.

Nothing in Garcetti would suggest that a public

employee lacks free speech protection when commu-

nicating as a witness in an investigation launched by

an outside government agency. To the contrary, given

this Court’s overarching precept that public em-

ployees retain First Amendment rights when they

engage in speech comparable to that of private citi-

zens, Cheek and Doty should have received consti-

tutional protection here. See Garcetti, 547 U.S. at

421-22:

?

id. at 423-24. Speaking as a witness is not

unique to government service.

As Cheek and Doty noted, Pet. 8, the trial court

placed considerable weight on Doty’s deposition testi-

mony that he believed as a police officer he had a

duty to cooperate with the Attorney General and to

oppose the municipal corruption in Edwardsville,

App. 34. Respondents repeatedly sound that cry to

resist review here. Their argument, however, illus-

trates nicely the difficulties the Garcetti decision

cultivated with its truncated discussion of job-

relatedness. First, of course, Doty’s testimony may be

taken to refer to a “duty” in the sense of a moral

obligation. See Merriam-Webster Collegiate Diction-

ary, llth Ed., 2003 (“duty,” def. 3b “the force of a

moral obligation”). But that is not a duty in the

Garcetti sense. Rather, a job-related duty entails a

task a government employee has been paid to per-

form. Garcetti, 547 U.S. at 22. See Merriam-Webster

6

Collegiate Dictionary (“duty,” def. 2a “obligatory

tasks, conduct, service, or functions that arise from

one’s position (as in...a group)”). Moreover, Respon-

dents argue that “this duty applied to all police

officers and that the police officers had a duty to

provide information to the attorney general’s investi-

gators if approached.” Op. 17. But a blanket duty

applied wholesale to government employees reflects

precisely the sort of artificially inflated job-relatedness

the Garcetti majority found unacceptable. Garcetti,

547 U.S. at 424 (“We reject, however, the suggestion

that employers can restrict employees’ rights by

creating excessively broad job descriptions.”). Respon-

dents then seem to contradict — or at least revise -

themselves later by suggesting “a police officer who

communicates with the Justice Department or the

FBI would enjoy the same constitutional protections

as any other citizen.” Op. 33. They argue that should

be so because state and municipal law enforcement

officers do not enforce federal law. /d. Thus, according

to Respondents, all local law enforcement officers

have a job duty to cooperate with State criminal

investigations but not with federal criminal inves-

tigations. An Edwardsville police officer witnessing

the abuse of a prisoner would have no constitutional

protection for speaking with investigators from the

Kansas Attorney General looking into a violation of

K.S.A. 21-3425 prohibiting law enforcement officers

from mistreating a person involuntarily detained; yet,

that officer would be shielded by the First Amend-

ment for talking to FBI agents pursuing a criminal

civil rights violation under 18 U.S.C. § 242 based on

the same incident. (And what if representatives of

both agencies conducted a single interview as part of

a joint investigation?) The Garcetti decision does not,

to any outward appearance, allocate the free speech

rights of public employees with that kind of bureau-

cratic formalism.

Again, to avoid dealing with the obvious division

among the lower courts in applying Garcetti, Respon-

dents incorrectly suggest that the job-relatedness of a

public employee’s speech depends on how that

employee acquires the information she disseminates.

Op. 22. If the employee learns of the information in

the workplace, Respondents argue she enjoys no con-

stitutional protection regardless of how publication

occurs. Jd. They even incorporate that notion into

their counterstatement of the question presented. Id.

at i. Respondents cite Garcetti, 547 U.S. at 424, but

the decision offers no support. To the contrary, Gar-

cetti, fairly read, rejects the argument. The majority

cites the facts of Pickering v. Board of Education of

Township High School District, 391 U.S. 563 (1968),

as illustrating protected speech of a public employee.

Garcetti, 547 U.S. at 423. There a schoolteacher wrote

a letter to the editor commenting on an upcoming

bond issue vote. The letter plainly included infor-

mation the teacher acquired directly through his

work. Pickering, 391 U.S. at 576-77 (letter recounts

statements superintendent made to teachers suggest-

ing punitive action against those opposing the bond,

observes that few teachers actually supported earlier

letters to the editor favoring the bond issue, and

RN i be

8

outlining specific deficiencies in one high school that

ought to be corrected before the district raises money

for athletic fields). See also Charles v. Grief, 522 F.3d

508, 513 (5th Cir. 2008) (“To hold that any employee's

speech is not protected merely because it concerns

facts that he happened to learn while at work would

severely undercut First Amendment rights.”). More-

over, this Court has recognized that public employees

command free speech protection, in part, precisely

because their vantage point within the government

affords them a particular insight into institutional

issues and shortcomings. Waters v. Churchill, 411

U.S. 661, 674 (1994). See also Garcetti, 547 U.S. at

419-20 (acknowledging the societal benefits of gov-

ernment employee speech of that type).

Respondents repeatedly fall back on the “prac-

tical inquiry” phrase drawn from Garcetti to bolster

their claim that Cheek and Doty acted within their

job duties when they recounted what they knew

about municipal corruption to the Attorney General’s

investigators. Garcetti, 547 U.S. at 424 (“The proper

inquiry [into job-relatedness] is a practical one.”). But

“practicality” alone fails as a predictive or analytical

test; it is more of an empty vessel to be filled as a

given court (or advocate) chooses. Compare Trigillo v.

Snyder, 547 F.3d 826, 829 (7th Cir. 2008) (court

invokes “practical inquiry” to reject “core functions”

as too narrow a test for iob-relatedness under Gar-

cettt) with Marable v. Nitchman, 511 F.3d 924, 933

n.13 (9th Cir. 2007) (court cites “practical inquiry” to

9

find chief engineer on ferry had job duty limited to

the safety of the boat’s mechanical systems).

In short, Respondents’ arguments simply side-

step the reasons the petition should be granted. In

applying Garcetti, the lower courts have opted for

differing tests of job-relatedness, meaning the free

speech rights of government employees have greater

vitality in some places than in others. Measuring

those constitutional protections unequally from cir-

cuit to circuit and courthouse to courthouse offends

sophisticated jurisprudence and plain good sense.

3. Circuit Split Continues to Widen. Since

Cheek and Doty filed their petition, the Fifth Circuit

has reiterated its view that Garcetti “merely carved

out a narrow exception” to the traditional analysis of

public employee free speech cases. Rangra v. Brown,

566 F.3d 515, 523 n.23 (5th Cir. 2009). The Fifth

Circuit earlier had decided to look at a_ public

employee’s “core” work functions as a means of

applying job-relatedness under Garcetti. Davis, 518

F.3d at 315. The Ninth Circuit also leans toward

defining job duties narrowly. Marable, 511 F.3d at 933

& n.13. Conversely, the Seventh Circuit has spe

cifically rejected reliance on an employee’s “core”

duties as too narrow. Davis v. Cook County, 534 F.3d

650, 654 (7th Cir. 2008). And the Tenth Circuit aligns

with the Seventh by taking a broad view of job

relatedness to strip away free-speech nghts. Brammer

Hoelter v. Twin Peaks Acad., 492 F.3d 1192, 1203

(10th Cir. 2007). See also, Pet. at 23-25 (discussing

circuit division); App. 29-33 (trial court relies heavily

10

on Brammer-Hoelter in entering summary judgment

on Cheek and Doty’s First Amendment claims).

Again, since Cheek and Doty filed their petition,

the Eleventh Circuit issued a split decision denying

free speech protection to county employees who told

their supervisors the county had failed to properly

record and report sewer overflows in violation of the

Clean Water Act. Abdur-Rahman v. Walker, 567 F.3d

1278 (llth Cir. 2009). The majority adopted a broad

interpretation of job-relatedness and implied Garcetti

held open free speech protection for government

employees only as a rare exception. /d. at 1285 (The

majority opinion rejects measuring constitutional

protection by an employee’s “everyday job functions”

because “(t]he Supreme Court explained that public

employees ‘retain some possibility of’ constitutional

protection when they ‘make public statements outside

the course of performing their official duties... [.]’”)

(quoting Garcetti, 547 U.S. at 423-24) (emphasis

added). The dissent contends the majority “relie{d] on

an overly broad reading of Garcetti ... to deny First

Amendment protection” to the employees. /d. at 1291

(Barkett, J., dissenting).

The Ninth Circuit, however, has since held that a

police sergeant reporting misconduct of his colleagues

to their supervisors and higher-ranking officials with-

in the department properly averted summary judg-

ment on a claim for violation of his free-speech rights.

Robinson v. York, 566 F.3d 817, 823-24 (9th Cir. 2009).

The trial and appellate courts found the scope of the

officer’s job duties for Garcettt purposes could not be

id

decided as a matter of law on those facts. Jd. That

result cannot be easily reconciled with Abdur-

Rahman, the summary judgment entered against

Cheek and Doty here, or Respondents’ argument

imposing on all police officers a Garcetti duty to speak

as witnesses in internal or external investigations of

misconduct. As Cheek and Doty have pointed out,

even after Garcetti, the courts typically extend free

speech protection to public employees communicating

with outside government agencies. Davis, 518 F.3d at

313 (“external communications are ordinarily not

made as an employee, but as a citizen”); Lindsey v.

City of Orrick, Missourt, 491 F.3d 892, 895, 898 (8th

Cir. 2007); Freitag, 468 F.3d at 545.

+

CONCLUSION

This case directly presents the question of how

best to determine whether public employees’ speech

relates to their job duties and, hence, garners free

speech protection. This Court deliberately left the

question unanswered in Garcetti. Some three years

later, the need for further guidance on that issue has

ecome apparent. Accordingly, the petition should be

granted.

Respectfully submitted,

G. GORDON ATCHESON