Supreme Court Rules for Clinic in Borough of Duryea v. Guarnieri

June 20, 2011

U.S. Supreme Court justices delivered a near-unanimous decision today in favor of a client of the Supreme Court Litigation Clinic in the clinic's final case decided this term.

Professor Dan Ortiz, here teaching in the Supreme Court Litigation Clinic, presented the oral argument in Borough of Duryea v. Guarnieri.

In Borough of Duryea v. Guarnieri, the court ruled that public employees can't sue under the First Amendment's petition clause for alleged retaliation unless the underlying dispute implicates a matter of public concern.

This is all we could have wished for," said University of Virginia law professor Dan Ortiz, who argued the case before the court in March. The court wrote the opinion we argued for, and both the conservatives and liberals seemed on board with it."

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, and the clinic took up the case on behalf of the borough.

If the ruling had gone the other way, there would have been a huge burden put on public employers going forward all across the country when they were thinking about disciplining public employees," Ortiz said. It would always be in the back of their minds that they could be sued under the Constitution if they had done something by mistake, or even if they had done something right and the employee disagreed with them. Then the employee could take them to court."

Ortiz and Wells Harrell '11, who took the clinic when the brief was being prepared, said the case was interesting because there was little Supreme Court precedent involving the petition clause. The clause prohibits the government from making any law prohibiting the "petitioning for a governmental redress of grievances."

Our discussions about the petition clause's core meaning and its relationship to the speech clause were lengthy and fascinating," Harrell said. Our win bookends a year's worth of hard work by everyone involved in this year's clinic."

Ortiz said the case will likely be added to constitutional law textbooks.

That will be a great thrill to the students who worked on the case," Ortiz said. This is arguably one of the more important if not the most important petition clause case in the canon going forward."

In Justice Antonin Scalia's partial concurrence and dissent, Scalia wrote that lawsuits shouldn't be covered by the petition clause because they were not a form of petitioning.

Now that Justice Scalia's thrown that idea out there, there could be some collateral litigation around it in the future," Ortiz said. Justice Scalia's view has some historical point. The question is whether so much water has gone under the bridge at this point that the court is going to want to go back to historical first principles."

The Supreme Court receives about 7,000 case petitions each year, and grants and hears about 75 to 80 cases. The clinic argued four cases before the court this term, including Nevada Commission on Ethics v. Carrigan, Fox v. Vice and Kevin Abbott v. United States of America.

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