Guarnieri decision due in June

By Terrie Morgan-Besecker tmorgan@timesleader.comLaw & Order Reporter

WASHINGTON, D.C. – The U.S. Supreme Court is expected to issue a ruling by June in a local employment dispute case that will have ramifications for the rights of public employees nationwide.

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The high court on Tuesday heard oral arguments in former Duryea Police Chief Charles Guarnieri’s long-running dispute with the borough over his termination in 2003.

The court’s ruling will reach far beyond Guarnieri, however, as it will significantly impact the circumstances under which a public employee can sue their employer for retaliation.

Guarnieri sued the borough in 2005, alleging officials retaliated against him after he won his job back through the union arbitration process.

A federal jury agreed in 2008 and awarded him $97,358, which was later reduced to $45,358 by an appellate court.

The U.S. Supreme Court agreed to hear Duryea’s appeal of the case to resolve a legal dispute among federal appellate courts regarding the interpretation of the petition clause of the First Amendment, which protects a person’s right to petition the government.

Federal courts have long held that a public employee who alleges retaliation for exercising free speech must show that the matter they spoke about was an issue of public importance – such as exposing wrongdoing. Guarnieri’s case hinged on the employment action that was taken against him for using a union arbitration process to win his job back, which is a private matter.

The borough raised that issue on appeal with the Third Circuit Court of appeals. It lost based on a previous, precedent-setting ruling in which the Third Circuit found that the filing of a “petition,” which the court said includes a union grievance, does not require the employee to show the issue was a matter of public importance.

That’s a key distinction because it would expand the circumstances under which public employees could sue their employer.

Daniel Ortiz, a University of Virginia law professor who presented the case for Duryea, argued the Third Circuit Court ruling would allow public employees to circumvent the “public concern” requirement simply by raising their gripe in a “petition” as opposed to speaking out at a public meeting.

That could open up the floodgates, allowing any employee with a run-of-the-mill employment dispute to sue.

That issue appeared to be a particular concern to Justice Samuel Alito Jr., who posed a hypothetical question of Guarnieri’s attorney, Eric Schnapper, a law professor at the University of Washington law school.

“What if a number of municipal employees prepare a formal document, call it ‘petition,’ and they say: We have a grievance, and our grievance is that the quality of the food in the cafeteria is poor. Now, is that protected by the petition clause?” Alito asked.

Schnapper said he does not believe the potential for frivolous suits is a major concern because there are other mechanisms in place to protect against that.

“It simply isn’t the case that you could take any beef, write ‘federal complaint’ at the top of it and file it in federal court and be protected,” Schnapper said. “A lawsuit that doesn’t have a reasonable basis simply isn’t going to be protected.”

Schnapper also noted the prior court ruling that formed the basis of the Guarnieri decision was issued 17 years ago. There’s no evidence it resulted in a “tsunami” of new lawsuits, as the borough has predicted.

“We pointed out in our reply brief that they had not adduced any evidence that any such thing had happened,” Schnapper said.

Chief Justice John G. Roberts noted that would likely change, however, should the court adopt Guarnieri’s position.

“Things would be a lot different if we give the sanction to your theory,” Roberts said. “I think the idea that it hasn’t happened in 17 years … it’s not compelling.”

Guarnieri was represented in his initial suit against Duryea by attorney Cynthia Pollick of Pittston.

Pollick attended Tuesday’s argument, but said she opted to have Schnapper present the case because he has handled national labor issues and had appeared before the high court several times.

Pollick said Wednesday it was hard to gauge how the court might rule. The only certain thing is its decision will have an impact nationwide.

“It is something all government workers should watch. They’re deciding whether you have the right to petition without retaliation,” she said.