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Posted Oct. 18, 2010

Supreme Court Agrees to Hear Clinic Case

Supreme Court

The U.S. Supreme Court has agreed to hear a First Amendment case in which the Law School’s Supreme Court Litigation Clinic represents one of the parties.

The case, Borough of Duryea v. Guarnieri, will be the second clinic case the Supreme Court will hear this term, and the sixth since the clinic formed in 2006.

 The case centers on whether the First Amendment right to petition shields a government employee from retaliation for filing a grievance.

Charles Guarnieri filed a grievance against the Pennsylvania borough of Duryea after he was dismissed as police chief in 2003. He was reinstated after arbitration, but later sued in federal court, claiming he’d been retaliated against after his reinstatement for exercising his right to petition. The 3rd U.S. Circuit Court of Appeals agreed with Guarnieri.

The Supreme Court Litigation Clinic became aware of the case through its normal review process, and filed a brief encouraging the U.S. Supreme Court to take up the case.

“We’re saying that there’s no cause of action under the petition cause unless there is some matter of public concern at issue,” said Professor Dan Ortiz. “So, for example, if an employee files a grievance about a normal employment dispute, there’s no cause of action for retaliation under the petition clause.”

Such a ruling would be consistent with the existing rule for lawsuits claiming violation of the First Amendment’s free speech clause, Ortiz said.

“The question is whether the petition clause should be treated the same for these purposes, and we believe it should,” he said.

A team of six students is working on a brief on the case that will be filed with the court in late November or early December, Ortiz said.

The Supreme Court has ruled in favor of the clinic’s client in three of the four clinic cases it has decided since 2006. The clinic is also waiting on a decision in Kevin Abbott v. United States of America, which Professor Jim Ryan argued Oct. 4. That case centers on federal firearms laws that allow additional charges with mandatory minimum prison sentences for certain crimes involving guns.

Ortiz said the clinic’s success reflects well on the students involved, and noted that there is a measure of luck involved.

“We are getting better at it,” he said of the clinic’s case selection process. “Part of it is the randomness of the timing of these cases, but the clinic is getting stronger.”