Amicus Curiae Brief — Borough of Duryea v. Guarnieri

Supreme Coun. US

FILED

No. 09-1476

a te

In The

Supreme Court of the Anited States

S

BOROUGH OF DURYEA, PENNSYLVANIA, ef a! ,

etifloners,

v.

CHARLES J. GUARNIERI,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

AMICUS CURIAE BRIEF OF THE

PENNSYLVANIA STATE ASSOCIATION OF

BOROUGHS IN SUPPORT OF PETITIONERS

BRETT M. WoopBuRN*

STANLEY J.A. LASKOWSKI

CALDWELL & KEARNS, P.C.

3631 N. Front Street

Harrisburg, PA 17110

(717) 232-7661

bwoodburn@cklegal.net

*Counsel of Record

— —_——

COCALE LAW BRIEF PRINTING OO Sup) 25 og

OR CALL COLLECT (402) 342 2851

QUESTION PRESENTED

Whether the Third Circuit erred in holding that

state and local government employees may sue their

employers for retaliation under the First Amend-

ment’s Petition Clause when they petitioned the

government on matters of purely private concern,

contrary to decisions by all ten other federal circuits

and four state supreme courts that have ruled on the

issue.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED..............0..0.0.00.00.00.2222. i

TABLE OF AUTHORITIES ......................0....222... ili

INTEREST OF AMICUS CURIAE..................0.4.. 1

PEPER UNOTEET © vsccsecccesccscccnssenescosecssovoonensssecsssnesceoses 3

SUMMARY OF ARGUMENT .........................2.00e 3

IIIT siniclencuindenndelsnnibonnmnavadanmiaieckinnndmigusnees 5

WI

TABLE OF AUTHORITIES

Page

CASES

Connick v. Mvers, 461 U.S. 138 (1983) .......... o, 6,9, 138

Guarnieri v. Durvea Borough, Slip Copy, 2010

WL 381398 (C.A. 3, Feb. 4, 2010)................ccccccecseee 6G

McDonald v. Smith, A72 US. 479 (1985) oo... 5,138

San Filippo v. Bongiovanni, 30: F.3d 424 (3d

Cir. 1994), cer’. denied, S18 US. 1082 (19985)....9, 18

CONSTITUTIONAL PROVISION

U.S. Const. Amend. I. el. 6 |. 3

STATUTES

The Borough Code, 53 PS. $45701 0.0000

OTHER

Julie M. Spanbauer, The First Amendment

Right to Petition Government for a Redress of

Grievances: Cut from a Different Cloth, 21

pemetimee Comat. 1. G. 15 CLGGG) 2.00.0... .enccrsccceeccceceen

Norman B. Smith, “Shall Make No Law Abrids

ing... ": An Analvsts of the Neglected, But

Neariv Absolute. Right of Petition, 54

BT , EIE A BID oeesncnscceccccssescaccocssvescscscesssess 8

INTEREST OF AMICUS CURIAE'

The Pennsylvama State Association of Boroughs

is a non-profit incorporated association advocating

the interests of more than $50 rural and urban

boroughs and approxtuiuately 16,000) elected and

appointed borough officials. The Association repre

sents the boroughs at both the state and federal

levels to present a unified voice on public matters of

concern. The Association provides research, education

and service programs to assist borough officials in

fulfilling their elected duties and responsibilities. The

Assocation is specifically charged by The Borough

Code, 53 PS. $45701, with the purpose and

responsibility of advancing the interests of boroughs

and improving local government

According to the Pennsvivania Department of

Community and Economic Development, boroughs

are one ot the most common torms of local govern.

ments in Pennsvivania. Pennsyivama boroughs have

a total population of approximately 2.570.885 individ

uals and an average population of 2.684 per borough.

The 958 boroughs of the Commonwealth represent

Notice of intention to file Chis amucus bmet has been

provided to, recenved and accepted by the parties and they have

consented to its Ghiag. Censents are being submitted with this

bnef Pursuant to S Ct) R86 6, no counsel tor a party authored

this brief in whole or in part, and no counsel or party made a

monetarv contmbutien intended to fund the preparation or

submission of this bmet No person other than avucus curiae, its

members, or its counsel made a monetary contribution to its

preparation or submission

approxumately thirty-seven) pereent (37%) of all

municipal governments in Pennsvivania averaging

approximately fourteen (14) per county Pennsylvania

is divided into a total of sixty-seven (67) counties with

each borough independently governed apart trom the

counties

The size of Pennsylvania boroughs varies greatly

throughout the Commonwealth. Some of the largest

boroughs by population (per 2000 Census) are State

College (38,420 Centre County), Bethel Park

(33,556 — Allegheny County), Norristown (31.282

Montgomery County), Monroeville (29.349 Alle.

gheny County), Plum (26,940 - Allegheny County),

West Mifflin (22.464 — Allegheny County) and Potts

town (21,859 — Montgomery County) Some of the

smallest: boroughs by population ino the Common.

wealth are New Morgan (35 Berks County), Valley-

High (20 — Fulton County), Green Hills (IS — Wash

ington County), Smicksburg (49 — Indiana County),

Callimont (St — Somerset County) and Glassow (63

Beaver County)

Boroughs are and have been a viable and vibrant

form of self government which is a part of the diverse

history of the Commonwealth of Pennsvivamia. The

Association has an interest in this case as its adju

dication shall have a substantial direct statewide

Impact upon a fundamental system. of governing

within the Commonwealth, the growth and devel.

opment of boroughs in the Commonwealth and their

continuing financial viatihty as an emplover of a

ee

Fad

work force to provide services to borough residents

and taxpayers

STATEMENT

Amiicus incorporates by reference the Statement

of the case set forth in the Petition For Writ) of

Cerhioran oof Petiveners Borough of Durvea,

Pennsvivania, ef al

_—_----_—_—___-—_—_——- @ ---- —- - -- —

SUMMARY OF ARGUMENT

The Third Cireuit has) repeatedly rendered

atlirmed a rnght for a government emplovee to sue

their employers for retahation under the Petition

Clause of the First Amendment, US.) Const. Amend

lel Bon matters of solely private concern. The Third

Cireuit’s position is at odds with the decisions of this

Court and the ten other federal cireuits that have

consistently held) that such individual — pubhe

emplovee chums are not cognizable under the Petition

Clause

A divergence occurred im the use of petition

during its history between medieval England and the

Enghsh colomes upon the formation of a new nation

in Amenca. The historical origin of petition in Eng-

land encompassed its use tor both pubhe and private

grievances. Colomal Americans expressed their col

lective grievances in order to gain independence. The

concept of one voiwe of Che populace prevailed in the

use of petition which was intentionally given a

comparable status to rights of speech, reliugon, press

and assembly, to be protected in the First Amend

ment to preserve that independence

The petibion was a consistent tool of publre dialog

and means for citizens to continue to focus the atten-

tion of the new and developing government on

policies and issues of pubhe concern. The First

Amendment protects the mght of the People, for and

by whom the Constitution was founded, to petition

their Government for the redress of their grevances

The Third Cireunt acknowledges the fundamental

unportance of effecuive and eMeient government. Its

decision in this case belies that principle Despite its

history, the Third Circuit elevated the Petition

Clause, despite its history, to provide constituhonal

protection to pubhe emplovees who articulate

individual chams, objecQions or grievances in writing,

where such constitutional protection is not available

to private sector emplovees

Boroughs are a form of local government in the

Commonwealth of Pennsyilvama that must compete

in and wath private sector emplovers to provide wages

and benefits to emplovees to provide services to

residents and taxpavers Boroughs and other munic

ipalities are at a distinct disadvantage because of the

Third Cireuit’s decision in this case, and are subject

to defending a myriad of individual emplovee clams

in the federal courts that private emplovers will not

s*

oe"

need to defend. As a result of constitutionalzing

public employer-emplovee disputes, small borough

governments, which have hmuited revenue resources

and budgets, will be easily ov erburdened merely by

the threat of employee tigation

The result te borough's and local government ts a

real threat to maintaining effective and efioent man

agement of government operations Phe dedication of

volunteer pubhe elected service will evaporate as

mere elected officials are besieged with individual

labor issues because of the elevated protection

afforded by the Petition Chiuse

The mht of Petition was never intended to be

given any “speech first amendment status.”

McDonald i Smiutth, AT2 U.S. 4 9, 482, 489 LISS)

Using the Petition Clause to prosecute private

individual disputes will engender greater divisiveness

than emplovee speech itself Its time for the prin

ciple that all etuzens’ fundamental rights are

protected expressed in Connick vo Myers, 461 US 13s

(1983) be amplemented by holding public emplovees to

the same standard of pubhe concern as private seetor

emplovees in the Third Cireurt

ARGUMENT

The Third Ciremt stands alone holding that “a

public employee who has petitioned the government

through a formal mechanism such as the fling of a

lawsuit or grievance is protected under the Petition

ty

Clause from retahation for that activity, even af the

pefiftion concerns a matter of solely private concern”

Guarmnen © Durvea Borough, Shp Copy, 2010 WL

S8S13898s, *2 (CA 3. Feb 4, 2010) (emphasis added)

This holding is at odds with the underlying principle

that all cvtivens’ fundamental myghts are protected

This principle is clearly expressed in Connick ©

Myers, where this Court stated, “Our responsibility os

to ensure that citizens are not deprived of funda.

mental rythts by virtue of working for the govern

ment; this does not require a grant of immunity for

emplovee grievances not afforded bv the First

Amendment to those who do not work for Che state”

461 US 188, 147, 1038 S.Ct. 16s4, 1690 (1983)

cemphasis added)

The Third Cireuit has elevated the Petition

Clause, giving ut greater deference and greater pro

tection than the other miahts protected bw the First

Amendment. The Third Circuit attempted to justify

its position by tracing the historical roots of the

Petition Clause to the Magna Carta in 1215. The

night that was granted under the Magna Carta, and

the right that developed in medieval England saw the

petition used to redress both public and private alls

As medieval society evolved into modern society, and

as the Enghsh colomes became the United States of

Amenea, the rights of the people (and the rights

protected by the Petition Clause) have also evolved,

taking a different path than was followed in England

The use of the petition to redress individual,

private ymevances never gained a strong foothold in

Amenca, The Third Cireuit lost sight of this critical

divergence. Prior to wining our independence from

England, the petition was the only sate means by

which the Colonists could complain about and emt

eve the policies and practices of the hing”

Petitioning was also one of the principle means for

Colomists to formalize popular positions that even

tually became law. The mght to petition was used by

the Colonists to present grievances to the hans, for

the Colomal Americans the right to petition was the

means by which citizens expressed grievances or

championed change to government. While the pro-

techhons and myhts offered by the Petition Clause

have survived through the First Amendment. these

protections and mghts have also necessamly evolved

One American concept has remained true the

petiion has principally been the one voice upon

which the populace has rehed to express itselt to the

aeverning entity

At the time of the Revolution political petitions

were the only authorized wav for individuals to voice

complaints and concerns to the government The

Founding Fathers recognized the need to preserve

petition mghts after the Revolution. They did. so,

however, not by clevating the petihion above or

separating it from the other First Amendment rights,

but by including the right to petition government

The Stamp Act and the Molasses Act are two of the laws

warnst which pre Revolution Colomal Asser: Alies petitioned

S

together with the rights of speech, relagion, press and

assembly. Importantly, the mghts of Petition and

Assembly were intially considered as their own

amendment, separate from religion, speech and press

This initial concept was discarded in the final version

of the Baill of Rights; freedoms of speech, relimon,

press, assembly and petition were combined in the

First Amendment with no pretext of superiornty of

any one nght over another. |

Yhe First Amendment was borne out of a time in

history when oppressive restrictions on. seditious

speech existed to quash public expression by critics of

the Crown. Consolidating the protection of speech on

matters of public concern with the right to petition is

telling and persuasive of the panty that needs to be

achieved today by reversing the position taken by the

Third Cireuit

Histomeally, the petition right in early America

was used by groups and individuals to address

subject matters that were both political and purely

private in nature. As our country grew and matured,

and as our single government evolved into many local

torms of gevernment, the pettion continued to evolve

The petition was ence a form of public dialog before

For a detanled history of the Petition Clause see Jule M

Spanhauer, Phe Pirst Amendment Right to Petition Government

for a Readress of Grienaneess’ Cut from a Divterent Cloth, V1

Hastangs Const LQ 18 (1993): Norman B Smith, "Shall Make

No Law Abridging “ An Anailvsis of the Neglected, Bui

Neariv Absolute, Right of Petition. 54 U Cin L Rev 1153 (1986)

9

the media and national political parties took on that

mantle, it is now a tool that allows citizens to focus

governmental attention on malfeasance, unresolved

problems, unpopular policies and popular frustrations

without endangering pubhe welfare or order. The

petition is the tool that cuarantees the puble leaders

hear the electorate, even if they fail to listen,

The First Amendment of the United States Con

suutution protects the right of the people to petition

the Government for a redress of gmevances. But when

the government Is acting as an emplover, its interest

in acheving its goals as efficiently and effectively as

possible is significant. San Filippo v. Bongrovanni, 30

F.3d 424, 441 (8d Cir, 1994), cert. dened, 513 US.

L082 (1995). Although the Third Circuit identified the

importance of effective and efficient government, it

abruptiv departed from the course set by the other

Cireunts when it granted consututional protection to

governmental employees who articulate their objection,

enuicisim or grievance in writing = a level of protection

that is not available to the private sector employee.

This Court should not: permit: matters of an

individual basis — such as disputes between a super-

visor and a subordinate in the workplace — to attain

constitutional protection simply because the emplover

is the government. Even though Connick did not

address the Petition Clause, this Court’s mandate 1s

paramount: citizens working for government should

not be deprived of their fundamental rights, nor

should they receive an immunity for exercising those

rights that is not available to the private worker.

10

The case at bar presents this Court with the

opportunity to clamty that in-house grievance proce-

dures should not be granted constitutional protection

through the Petition Clause unless such grievance

transcends individual complaints and = implicates

matters of public concern.

Boroughs and other types of municipalities are

custodians of the puble trust and property, and are

charged with providing for the health, safety and

welfare of their residents and taxpayers. A premium

must be placed upon a goal of efficient and effective

operation due to practical financial constraints of the

taxing authority, Government as an employer com-

petes with the private sector. It must fulfill its

responsibilities, yet provide competitive benefits and

Wages in order to obtain and retain qualified per.

sonnel,

Local government must be able to hire,

discipline, discharge and supervise emplovee conduct.

Boroughs do not operate in a vacuum and are subject,

inter alia to the requirements of labor agreements,

which provide negotiated mechanisms to redress

employee grievances; state and federal labor laws;

Title VII; equal employment opportunity require-

ments; and the protections from discrimination

against protected classes.

Boroughs within the Third Circuit are sub-

stantially disadvantaged; they are subject to liti-

gation and the threat of litigation under the Petition

Clause that does not exist in the remaining Circuit

Ll

Courts. The emplover-employee relationship is a

constant whether in the public or private sectors. A

public employer is still just an employer (without the

typical reward of profit), providing wages and

benefits in exchange for services. Employees of public

employers should not receive greater protections from

retaliation, and employees of pmvate employers

should not receive fewer protections from retaliation

by the employer. Workplace disputes, generally, are

not given constitutional protection in the private

sector; similarly, workplace disputes should not rise

to a constitutional question in the public sector.

Constitutionalizing the personal grievances of

employees under the Petition Clause will subject

boroughs and other governments to a myriad of

federal claims for individual interests solely because

the employee formalized and expressed their com-

plaint under the guise of a grievance, arbitration

claim or lawsuit. Giving a purely private claim con-

stitutional weight will impair and undermine the

local government's ability to render even basic man-

agement decisions due to the mere threat of employee

claims being brought before the courts. The courts

will be faced with the responsibility of overseeing

day-to-day managerial decisions affecting policy as

well as daily effective and efficient governmental

operations.

Smaller governments such as boroughs have

limited resources and income. By constitutionalizing

individual claims, the threat of the money and time

12

consumed defending such claims, which foster in

terrorem settlements, is magnified.

According to the Pennsylvania Governor’s Center

‘for Local Government Services, Department of Com-

munity and Economic Development, Pennsylvania

Local Government Fact Sheet, as of October 2009,

958 boroughs comprise 37% of the 2562 total number

of all Pennsylvania municipalities. With a _ total

population of 12,281,054 in Pennsylvania, 78% of all

municipalities have a population under 5,000. A total

of 159,483 individuals are employed in municipalities

of which 19,496 are _ located in_ boroughs.

Approximately one-third (4) of Pennsylvania

boroughs as of 2009 have annual budgets of less than

$500,000 and at least forty-seven percent (47%) of

boroughs have budgets of less than $1,000,000; and,

of these: at least ninety (90) borough budgets are less

than $100,000; at least 117 have budgets of $100,000

to $250,000; at least 106 have budgets of $250,000 to

$500,000; and at least 135 have budgets of $500,000

to $1,000,000.

The threat to efficient and effective management

of government operations is real. Elected officials

besieged by labor issues subject to federal court

actions under the elevated protections of the Petition

Clause will also be subjected to the electorate’s

criticism. A chilling effect on the dedication of elected

officials to volunteer for public service will likely

ensue. A determined individual or a small number of

employees could substantially derail government

operations and misdirect public resources to pursue

13

personal interests, all to the detriment of the public

that local government is charged to protect.

The right of petition is “cut from the same cloth”

as other guarantees of the First Amendment and was

indeed never intended to be elevated to “special first

amendment status”. McDonald v. Smith, 472 U.S.

479, 482, 485 (1985). Using the Petition Clause for

access to the courts attracts as much or more divisive

attention than employee speech. San Filippo v.

Bongiovanni, 30 F.3d 424, 450 (3d Cir. 1994), cert.

denied, 513 U.S. 1082 (1995) (Becker J., concurring in

part and dissenting in part). More attention occurs

due to downward pressure on taxes, revenue sources,

increased time and attention of elected officials to

such claims, all rendering government less efficient

and effective. Therefore, the public concern espoused

in Connick should apply to be on par with employee

speech. This case provides the time to define the role

of the Petition Clause with respect to public

employers.

14

CONCLUSION

Amicus concurs with Petitioner's statement of

arguments and authorities cited as well as rehef

requested as set forth in the Petition for Writ. of

Certioran which are incorporated herein.

Respectfully submitted,

BRETT M. WoopRBURN*

STANLEY d.A. LASKOWSK!

CALDWELL & KEaAkNs, P.C.

3681 N. Front Street

Harnsburg, PA 17110

(717) 232-7661

‘Counsel of Record

July 6, 2010