# Amicus Curiae Brief — Borough of Duryea v. Guarnieri > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0595%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2011 - **Citation:** 564 U.S. 379 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0595%3A05. Public record. Not legal advice.