Appellate Law

CA1: One of the worst cases ever on the petition clause

By S. COTUS

Rosado-Quinones v. Toledo, No. 07-1425.  A cop brought a 1983 suit alleging that he was discriminated against on First Amendment grounds after suing the police in a local court.  I guess the underlying lawsuit is interesting: this cop was arrested for disturbing the police, had his gun taken away from him, and they never gave it back.  Unfortunately, while the plaintiff might be a jerk (we will never know), the First really screws up the law on the petition clause.

But here is where it starts getting screwed up.  The District Court held that the underlying lawsuit wasn?t about a matter of ?public concern? (because he alleged all sorts of personal animosity) and therefore, First Amendment protection never attached.  I think the First (and perhaps the parties) are missing the point, and it brushes aside his argument that the petition clause gives him some protection with almost no analysis by saying ?However, he presents no further arguments to suggest how these broad principles could or should alter the established Pickering [from v. Board of Education, 391 U.S. 563 (1968)]/Connick [v. Myers, 461 U.S. 138 (1983)]/Mt. Healthy [City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 274 (1977)] framework for assessing public employees' claims of retaliation for First Amendment activity.?  None of those cases actually address the petition clause. As we all know, Pickering involved a letter to a newspaper, Myers involved unorganized interoffice politics, and Mt. Healthy involved a call to a radio station.  In fact, while one could conceivably argue that a state has some interest in keeping internal police politics from becoming public, they have no interest in preventing their own courts from hearing grievances properly brought.  These are different animals and the First doesn?t care.  (If you have not read these cases, you should not be reading this blog.  This blog is for lawyers, and if you have not read these cases you are not a real lawyer.)

The First attempts to deal with this by citing its own case in Powell v. Alexander, 391 F.3d 1 (1st Cir. 2004).  It says the argument is waived.  It writes ?Powell acknowledges, in the public employment context, that under the First Amendment, there is both a free speech aspect and a right to petition aspect to claims of retaliation against the filing of lawsuits.?  Although it seems to say that the issue is waived (but still wants to make some law on this) the First relies on how there is no statutory protection against retaliation.  Then, it goes even further by saying, ?We note there is no absolute First Amendment right to file lawsuits.  See Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983) ("[S]ham litigation . . . does not come within the first amendment right to petition.") First of all, there is no indication that the District Court?s lawsuit was a ?sham? or even ?frivolous.?    Second of all, Bill Johnson's Rests., Inc. v. NLRB does not address whether there is a petition clause right to file a lawsuit against the government, but rather notes that 1) when there actually is a sham litigation it isn?t a bona fide grievance (but the First seems to state that he the plaintiff was really angry at his superiors, so that seems like an actual grievance); 2) the actual language of the Supreme Court was ?In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510  (1972), we recognized that the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. Accordingly, we construed the antitrust laws as not prohibiting the filing of a lawsuit, regardless of the plaintiff's anticompetitive intent or purpose in doing so, unless the suit was a ?mere sham? filed for harassment purposes.?  So, it is fairly obvious that the First isn?t even reading the cases they cite (and, really, by the time you get to be a judge you should have read all Supreme Court cases); and 3) there is considerable commentary on the problem of motive restrictions upon court access.actually is some caselaw which holds that there is a petition-clause right to sue.  See, e.g.,  Robert L. Tsai, Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory of Court Access, 51 AM. U. L. REV. 835 (2002) and Carol Rice Andrews, Motive Restrictions on Court Access: A First Amendment Challenge, 61 Ohio St. L.J. 665 (2000).

I am not saying that the plaintiff is right, but the First isn?t taking this issue seriously.  First, he says that the petition clause argument was adequately developed.  He points to the record to show where it was raised and accuses the majority of ignoring it.  He also agrees with me that the Pickering framework is inapplicable (and I wrote the above commentary before reading this).  He concludes, ?Were we to require governmental employees to demonstrate that their lawsuits were matters of public concern as a prerequisite to constitutional protection against retaliation for exercising this right, we would be placing an unwarranted and unconstitutional burden on them that is not placed on other citizens, merely by virtue of their status as public employees.?

A due process claims fails because there is no property right in a particular job function. 

Torruella dissents.

He says that the claims were not waived, and shows where in the record they appear.  He also says that the underlying lawsuit was not ?frivolous? and he agrees with me that the cases cited deal with free expression and not the petition clause. 

I think this is the worst (or second worst) case from the First this year.

Full post as published by Appellate Law and Practice on June 04, 2008 (boomark / email).