CONNICK v. MYERS
Legal provision: Amendment 1: Speech, Press, and Assembly
ORAL ARGUMENT OF WILLIAM F. WESSEL, ESQ., ON BEHALF OF THE PETITIONER
Chief Justice Burger: We will hear arguments next in Connick against Myers.
Mr. Wessel, I think you may proceed when you are ready.
Mr. Wessel: Mr. Chief Justice, and may it please the Court, the case before you today is a case involving a public employee who was dismissed from service because of actions surrounding a job movement, that is, moving an assistant district attorney from one section of the court to another section of the court in the Orleans Parish criminal justice system.
The action to transfer the assistant district attorney was followed up by the assistant district attorney circulating a questionnaire, which is in the records, which pertained... over 90 percent of the questionnaire pertained to matters surrounding the transfer, and one question pertained to a question about the integrity or the confidence that other assistant district attorneys may or may not have had in the supervising trial assistant who took part in the decision to have him transferred.
Another question in the questionnaire outside of the questions that directly pertained to the transfer was a question as to whether or not the other assistant district attorneys felt pressured to engage in political campaigns.
The central issue around this case falls on Pickering, decided by this Court, and Pickering left us no standards in a case where a public employee is terminated for voicing concerns that he could voice or would voice as a private citizen on matters of legitimate public concern.
The Court has not left the circuits any standards by which to determine what is a matter of legitimate public concern.
By reason of that, the circuits have gone askew in determining what is a matter of public concern, and in some instances have done the balancing required by Pickering in order to determine what is a matter of public concern.
In Pickering, of course, we had a non-employment setting about a matter pertaining to a bond issue and how... why the bond issue should or should not be voted upon by the population.
The teacher there voiced his concern in the public media about the bond issue.
In Givhan, decided by... remanded by this Court, we had an employee setting rather than a non-employee setting, an employee setting about racially discriminatory policies.
That matter was remanded by this Court to determine whether or not there was another reason for the firing in that case.
In this particular case, we have an employee setting again, rather than a public setting, but we have a questionnaire pertaining to a private quarrel or petty bickering of the employee pertaining to a transfer of that assistant district attorney from one section of court to another section of court.
The questionnaire throughout points out the culmination of the events that took place prior to the questionnaire being circulated, and it is important in that regard to determine... to look at the facts as they were presented at the trial level.
The evening before the distribution of the questionnaire, the assistant district attorney in this case was told that she was going to be transferred to another section of court and was given a written memo to that effect.
The written memo was returned by her to the first assistant district attorney that evening with a complaint on it, why didn't you tell me about it before, and with an indication that her name was spelled wrong.
The next morning, she had been visited by the district attorney himself at approximately 8:00 or 8:30 in the morning, in the courtroom where she had her office, with a personal request to acquiesce in the decision to transfer her from one section of court to the other.
The district attorney had come from home, had not planned to work that day.
He was home with a sick wife at that time.
And he made a personal request to her.
Thereafter, he returned to his office to pack his briefcase to return home.
He was informed by the first assistant that the assistant district attorney, Ms. Myers, had told him she would not accept the transfer and would not move to the other section of court.
This was an intervening event that took place between his personal request of Ms. Myers in her section of court that morning.
Later on that morning, at about noon, the first assistant called the district attorney and told him, Ms. Myers is circulating a questionnaire, and she is creating a mini-insurrection, what do you want me to do about it?
Whereupon, Mr. Connick, the district attorney, returned to the office and he inquired of the questionnaire, was informed by the chief of trials under whom Ms. Myers was to be transferred that he had spoken to Ms. Myers and she told him she wasn't going to accept the transfer, that she was going to quit rather than accept the transfer.
The questionnaire was then circulated, and Mr. Connick, of course, had returned to the office, and at that point in time he informed her that she was fired.
Ms. Myers testified and Mr. Connick testified that she was being fired for two reasons, for refusing to accept the transfer and refusing... for refusing to accept the transfer and for having circulated the questionnaire with a... or a question in the questionnaire being particularly offensive to the district attorney at the time pertaining to the integrity of the six chiefs, chief assistants who had participated in the decision to transfer the individual.
Unidentified Justice: Mr. Wessel, does the record show what the structure of the district attorney's office was with respect to the chain of authority below the district attorney himself?
You just said there were six chiefs--
Mr. Wessel: Yes, Mr. Justice, there was testimony that the chief... two chiefs of trials, the chief of screening, and the training officer as well as the first assistant.
The structure in descending order was the first assistant, the chief of the screening division, that is, the intake division, two chiefs of trials, that is, the operational trial under which Ms. Myers was operating at that particular time, and the training officer.
Unidentified Justice: --So Ms. Myers served under one of the two chiefs of trials?
Mr. Wessel: Yes, Mr. Justice.
She was being moved from one chief of trials to another chief of trials.
Unidentified Justice: And the line of authority went from the chief of trials to the first assistant and then to the district attorney?
Mr. Wessel: That is correct, Mr. Justice.
Unidentified Justice: May I just clarified one thing?
You have reviewed the facts.
Do you challenge any of the findings of the district court as clearly erroneous?
Mr. Wessel: Yes, Mr. Justice.
There is certainly challenge insofar... in two respects, that the... insofar as the Mount Healthy but for inquiry, as to the inquiry where there is a dual reason for the firing, the court below did not address itself to the dual reasons.
The court below found the real reason, as he said.
The trial court said the real reason, but did not inquire either in terms of balancing or in terms of the but for test of Mount Healthy, as to the other reason, the non-First Amendment reason, i.e., the setting in which the questionnaire was distributed, the transfer of the assistant from one section of court to the other.
The Pickering, as I earlier pointed out, the Pickering situation was a one-reason firing, not a two-reason firing.
There was no other reason.
There was one reason there.
Unidentified Justice: Well, isn't it fair... didn't you argue... this was argued to the district judge, wasn't it, that the transfer was the real reason?
Mr. Wessel: That is correct, Mr. Justice.
Unidentified Justice: And when he did not enter such a finding and only found one reason, the... and he says it in so many words, that she was fired because of the questionnaire, isn't that a... didn't he... don't we have to assume he rejected the second reason?
Mr. Wessel: Well, Mr. Justice, there are two problems with that.
Number One, he didn't address the other reason.
Number Two, he didn't inquire... he did not do the threshold inquiry of Pickering insofar as whether this questionnaire was a matter of public concern.
The... that is what--
Unidentified Justice: Well, that goes to whether it's protected by the First Amendment, and all the rest, but as to... his findings on motivation I thought were rather clear, that he considered all the evidence pertaining to the transfer and said that the real reason was the questionnaire.
Mr. Wessel: --I would say that is corrects, Mr. Justice, in that regard.
Unidentified Justice: You are saying that that is a clearly erroneous finding?
Mr. Wessel: Clearly erroneous for several reasons.
Number One, he didn't address the factual underlying reasons.
There was no... He addressed the motivation of the district attorney without addressing the motivation of the employee who circulated the questionnaire.
Unidentified Justice: Well, Mr. Wessel, I have a little trouble understanding your position in the light of your responses to Justice Stevens' question.
Is it your complaint basically that he didn't address the questions, or that he decided it the wrong way?
Mr. Wessel: My complaint is that he... by not addressing it, he did decide it the wrong way, and of course I recognize the decision of facts on the factual underlying basis is not reviewable, but the ultimate question as to the protected activity would be.
Unidentified Justice: Well, supposing in a negligence case one side is arguing that something happened on Friday, and the other is arguing it happened on Saturday, and there is a bench trial, and the judge says, I find it happened on Saturday.
Now, he says nothing about it not having happened on Friday, but certainly that would be a rejection of the claim that it happened on Friday.
Mr. Wessel: That's correct.
I would yield on that point, that that was where the trial judge was coming from at the time--
Unidentified Justice: Suppose the trial--
Mr. Wessel: --but it does not appear that he did.
Excuse me, Mr. Justice.
Unidentified Justice: --Suppose the trial judge said, I have considered the other Pickering point and reject it, period.
Would that be all right?
Mr. Wessel: Well, I would think the other reason for... the other reason for the firing, yes.
Unidentified Justice: If he said, I've considered them and rejected them.
Mr. Wessel: Yes, Mr. Justice.
Unidentified Justice: And you wouldn't be arguing that, would you?
Mr. Wessel: I would not be arguing that except--
Unidentified Justice: So your argument is, he didn't say that.
Mr. Wessel: --My arguing, Mr.... My argument, Mr. Justice, is that you can't in this sort of situation under Mount Healthy--
Unidentified Justice: You mean, he has to say that... why he rejects it?
Isn't that what you're really saying?
Mr. Wessel: --Correct.
That is part of it, Mr. Justice, but the other thing is that in a dual firing, dual reason firing situation, you can't abstract out of the situation the First Amendment aspect of it, because you then end up, as this Court said in Mount Healthy, where the employee by reason of... by reason of engaging in a First Amendment activity after the real reason becomes... there's a windfall to the employee by grabbing the microphone at the press conference, as was done in Butler versus Hamilton, in the Tenth Circuit, and as was done by the employee in this case, where you go to the press to cover up your own inadequacies or the true reasons for the firing.
So, in... you don't have--
Unidentified Justice: Mr. Wessel, the district judge didn't... He found the facts differently.
Mr. Wessel: --He found--
Unidentified Justice: He found that Connick told the plaintiff she was being fired because of a refusal to accept a transfer, so he was fully aware of that contention, and then he later found the real reason was the questionnaire.
Now, you describe it as a dual motive case, but he found it was a single motive case.
Mr. Wessel: --That's correct, Mr. Justice.
He found that it was a single motive case, but under the--
Unidentified Justice: You say that is clearly erroneous.
Mr. Wessel: --And even under the single motive... but even under the single motive case, the question has to be addressed as to whether the subject is a matter of public concern.
Now, that has been decided in the various circuits by judicial hunch.
It has been decided in this case by judicial hunch.
There are no guidelines whatsoever to determine what are matters of public concern when an employee, a public employee is fired.
Unidentified Justice: That's a separate inquiry, isn't it, from--
Mr. Wessel: That's correct.
Unidentified Justice: --if you dealt with the motivation question.
Mr. Wessel: That is correct, Mr. Justice, and the first and primary point is that the... he reached the balancing or he reached the real reason, but without addressing... the trial court, I am talking about, did not address the public importance of the message or the test that should have been applied insofar as determining whether it was a matter of public concern.
It was, in this case, and this is where the results throughout the circuits differ.
In the Lindsey case arising out of Georgia where a teacher was fired for faculty, administration criticism in the form of a questionnaire, the Fifth Circuit takes... comes to the conclusion or dictates the conclusion that that is a matter of public concern, but in the Tenth... or the Seventh Circuit, in the Clark versus Holmes situation, you had pretty much the same situation with a teacher, again, determining the course content and the counseling and criticizing it, and the Seventh Circuit says this is not a matter of public concern.
So, the threshold question of Pickering is very rarely answered except by some fiat of what is public concern, because there are no standards enunciated.
Unidentified Justice: Is the initial question of whether the speech here is constitutionally protected one of a... that is a mixed question of fact and law, or a purely legal question, or what is it?
Mr. Wessel: Justice O'Connor, I believe that it's a legal question, and it's the ultimate question as to whether or not the expression is First Amendment protected or whether it is really a private quarrel between... involving the employee as an employee.
The test that should be applied and which we are urging the Court in determining the threshold question comes under the Schmidt case and the Clark v. Holmes case, and that is really... the Court should determine, does the expression reveal concerns of the individual solely as an employee, or also as an interested citizen?
Unidentified Justice: Don't you have to convince us... you have to persuade us that the district judge's findings generally were in... clearly erroneous because of your claim that she was dismissed for refusing to accept a reassignment within the office?
Mr. Wessel: That is... that is--
Unidentified Justice: Isn't that the narrow issue?
Whether there were other issues or not, isn't that the issue on which you stand or fall?
Mr. Wessel: --Not necessarily, Mr. Chief Justice, because not only could the determination or should the determination have been made upon the whole context of the transfer with the questionnaire, but even in the absence of that, if the real reason was the questionnaire, if the real reason was the questionnaire, is the questionnaire and the circulation of the questionnaire a protected activity?
Is it protected under Pickering?
Is she voicing concern as a citizen on matters of public concern?
And the threshold question therefore has... there has to be some sort of guideline as to what is a matter of public concern, and that has not been answered by the Court, and that... and that is the question that I am addressing at this point.
Is she talking as an employee about matters concerning her employment, or does the questionnaire address issues that a citizen at large would be interested in in returning the, say, the district attorney to office?
Unidentified Justice: Do you contend that the district attorney had an absolute unilateral right to assign her to any part of the office he wanted?
Mr. Wessel: I think there is no question at all about that, Mr. Chief Justice.
Unidentified Justice: Well, isn't that the heart of this case?
Mr. Wessel: That is correct, but the setting, the setting has been ignored in the findings of the trial court.
The setting... the setting of the transfer has been ignored, and it centers and focuses on the questionnaire.
The findings by the trial court center and focus on the questionnaire, but the setting is important either under determining the content of the questionnaire vis-a-vis what was going on in the office at that time, that is, his absolute right to transfer her, and secondly, on the balancing aspect, on his need to have confidence and loyalty in his supervising assistants, for example.
On that balancing aspect alone, there is a need to look at the underlying aspects of what was going on, because the integrity of those assistants who partook in the decision to transfer was being questioned by that one question in the questionnaire, and remember, every question in the questionnaire except for the question pertaining to the reaction as to participation in political campaigns, every question pertained to her gripes pertaining to the transfer, and that underlying basis in fact was necessary in order to determine whether the content was in fact matters of public concern, and secondly, whether the balancing required by Pickering, the interest in furnishing the services to the public, was there.
We have no... the public... certainly the public is not interested in which assistant district attorney worked in Section A or Section I of the criminal district court.
Unidentified Justice: What do you say... You talk about dual motive.
Supposing the questionnaire could be characterized as sort of a hybrid.
Most of the questions are just internal office matters, but one or two were matters of public concern.
Would the questionnaire be protected or unprotected?
Mr. Wessel: I think, Mr. Justice, at that point the balance in Pickering should be broadened, but where you had eleven out of thirteen, or eleven or twelve out of thirteen questions that pertained solely to the transfer policy, and one was thrown in as to whether or not the assistants felt that they were pressured into political campaigns.
The point is that Ms. Myers--
Unidentified Justice: I am not sure I understand the answer.
Mr. Wessel: --Well--
Unidentified Justice: You are saying the questionnaire is not protected even though one of the questions might have been protected?
Mr. Wessel: --I think in the abstract, had the transfer not been involved, then the questionnaire might have been a protected activity, pertaining to one question.
But here you have one question out of thirteen, and it is difficult to answer that.
In this context, I say no.
Unidentified Justice: But your argument, I gather, is that the entire questionnaire was unprotected, even though it contained one question which, had it been asked separately, would have been protected.
Mr. Wessel: That one question may have been.
Actually... Actually, that itself has to do with the operations of the office, whether or not the assistants were asked to participate--
Unidentified Justice: But would not that... yes, it has to do with operation of the office, but would you not think it was a matter of public concern if the assistant attorneys were being pressured to work in political campaigns on behalf of their superiors?
Mr. Wessel: --I do not believe the voters would turn Mr. Connick out of office or vote him into office--
Unidentified Justice: Well, that is not the question.
That is not the question.
The question is whether that information would be a matter of public concern, whichever way the answer comes out.
Mr. Wessel: --I don't think so.
Unidentified Justice: You don't think that the public would want to know if the assistants in the office were being pressured to work for political candidates?
Mr. Wessel: I don't think so, not in the non-civil service context, and this is where we are.
Unidentified Justice: Is it your position that in public employment, that a questionnaire sent out to other employees that addressed only the question of the activities that the employees were being asked to engage in that are political in nature would not be constitutionally protected?
That is your position?
Mr. Wessel: No.
I would say that under those sort of circumstances, where that was the sole question, in that respect it would be protected, and it would be--
Unidentified Justice: And if there were two questions--
Mr. Wessel: --it would be a matter of public concern.
Unidentified Justice: --And if there are two questions, that one plus one that is not of public concern, that the situation would change?
Mr. Wessel: Justice O'Connor, it would be difficult to answer that in the abstract, and I would probably have to yield on the point.
These things just don't happen in a vacuum in that regard, but on your question as it is posed, I think I would probably have to yield on the point.
Unidentified Justice: Mr. Wessel, when you say that something is a matter of public concern, that, I take it, is not the end of your argument on the point, because you say even if it is a matter of public concern, there remains the Pickering balancing test to be struck.
Mr. Wessel: That's correct.
That's correct, so that once the determination is made that the subject matter was one in which the public or the employee has an interest as a citizen to explain to the citizenry or to his fellow employees, given the Givhan case, that the inquiry does not stop at that point, and that the balancing that is required by Pickering is under these circumstances, this time, and this manner, and these circumstances, was this... this expression contained in this questionnaire, is it offset by the perceptions of the district attorney at the time, and whether his perceptions were reasonable in terms of requiring loyalty and confidence in his supervisors and whether or not he was... it was hindering his concept, if they are based on reasonable grounds of his efficient delivery of the public services, and this circulation was taking place in a courthouse where all the assistant district attorneys were working.
It was during the time of their work, for the most part, except one in a luncheon room elsewhere, but during the time of their work, going into the screening division, where the intake division is... or intake of cases of over 13,000 a year are coming in, and in the trial division, where there are two assistants assigned from each section of court to perform the trials that are going on and the motions that are being heard in every one of those sections of court during that day.
Unidentified Justice: Mr. Wessel?
Mr. Wessel: And... excuse me, Mr. Justice.
Unidentified Justice: Excuse me for interrupting.
Is there any evidence in this record that suggests that Respondent was being punished in the propose transfer for political activity or political inactivity?
Mr. Wessel: None whatsoever, Mr. Justice.
Unidentified Justice: None whatsoever.
Was not the transfer indicated before the questionnaire was--
Mr. Wessel: The transfer was indicated on the week before, culminating on a Friday.
On the Monday evening, in the presence of the district attorney and the first assistant, she was told she was going to be transferred.
Later that evening, a memo was given to her, a written memo, showing her new transfer.
The memo then was thrown back on the first assistant's desk and the questionnaire was compiled in the early morning hours of the next day, and circulated around 11:00 or 12:00 o'clock that day.
The questionnaire came about as a result of the decision to transfer, and the personal request of the district attorney to ask her to accede to that transfer that morning.
Unidentified Justice: --Are you saying that the questionnaire was provoked or was a response to the transfer?
Mr. Wessel: I think that the trial judge definitely found that.
The assistant district attorney definitely testified to that, and she... and that was the sequence of events.
Unidentified Justice: Well, is it your position that there were two reasons for dismissing her, or one?
That is, was she dismissed because she refused to accept the transfer, or because she circulated the questionnaire?
Mr. Wessel: Mr. Chief Justice, the district attorney testified and the assistant testified that when she was fired, she was told by the district attorney, you are being fired for your refusal to accept the transfer, and I resent the implications of Question Number 10 or 11 in the questionnaire pertaining to the integrity of the supervisors who partook in the decision.
Unidentified Justice: Mr. Wessel, was there anything in the way of a rule or regulation or practice about the circulation of questionnaires during working time?
Mr. Wessel: No, Mr. Justice.
Unidentified Justice: And you didn't raise the question in this trial?
Mr. Wessel: There was no regulation.
Unidentified Justice: You didn't raise the question that they didn't have the right to pass them out?
It says so.
The opinion says so.
It said, no... for confidentialities asserted in regard to the distribution.
Mr. Wessel: The judge was talking, and we were talking about whether or not Ms. Myers enjoyed a direct personal confidential relationship to the district attorney under the Pickering test.
That is, I believe, what the court was addressing itself to, and what--
Unidentified Justice: You didn't object to her handing out the questionnaire per se?
Mr. Wessel: --She had handed out numerous memorandums before, Mr. Justice.
Unidentified Justice: And had never been questioned about it?
Mr. Wessel: And had never been questioned before.
Unidentified Justice: Mr. Wessel, your opponent makes a good bit out of Texas Department against Burdine, a case you did not cite.
Mr. Wessel: Yes, Mr. Justice.
Unidentified Justice: Does that mean that you concede that Burdine doesn't affect whatever the standards were in the Mount Healthy case?
Mr. Wessel: We originally argued that in our petition for cert, Mr. Justice.
By mistake on my part, it was left out... a footnote was left out referring to that case.
We had indicated that in these sort of instances, as in the case, I believe, in the Seventh Circuit, in the county, had indicated that in a dual firing or dual reason situation, that the burden of the appointing authority should be no more than to explain with reasonable grounds for the firing, and should be not a shifting of burden as dictated by Mount Healthy.
Unidentified Justice: Well, you had the privilege of filing a reply brief and didn't--
Mr. Wessel: That's correct, Mr. Justice.
Unidentified Justice: --Did you raise the Burdine issue before the Fifth Circuit?
Mr. Wessel: No, we did not, Mr. Justice.
Unidentified Justice: Counsel, did you appeal from the attorneys' fees issue to the Fifth Circuit?
Mr. Wessel: Yes.
The appeal was... the initial judgment from the trial court was granting the attorney fees, but the quantum was not decided at that time by the trial court.
The appeal to the Fifth Circuit was based on the entire judgment.
That is the removal and the reinstatement issue, the back pay issue, the quantum for the damages issue, and the question of attorney fees.
The amount had not been determined until the case was pending before the Fifth Circuit, but it was argued before the Fifth Circuit, and briefed before the Fifth Circuit, the actual question of attorney fees.
Unidentified Justice: But that was in a separate judgment, wasn't it?
Mr. Wessel: The amount was in a separate judgment, Mr. Justice.
Unidentified Justice: From which no appeal was taken.
Mr. Wessel: The issue of... No appeal was taken as to the amount.
No question as to the quantum... no appeal would have been taken or was taken from the quantum.
The issue of the fact of the attorney fees as it was granted by the trial judge was appealed from, and it was briefed to the Fifth Circuit.
In other words, we didn't object ultimately to the amount determined by the trial court.
Chief Justice Burger: Mr. Strickler.
ORAL ARGUMENT OF GEORGE M. STRICKLER, JR., ESQ., ON BEHALF OF THE RESPONDENT
Mr. Strickler: Mr. Chief Justice, and may it please the Court, Judge Gordon, the trial judge in this case, conducted a full evidentiary hearing in this matter.
He gave all parties concerned the maximum opportunity to put on all the evidence they wished to put on.
On the basis of that record, he made the following findings.
He found that Sheila Myers was discharged because of her circulation of the questionnaire.
He found that Sheila Myers would not have been discharged but for the circulation of the questionnaire.
He found that neither the content nor the time, place, or manner of the circulation of the questionnaire in any way disrupted her performance of her work as an assistant district attorney or in any way disrupted the performance of the... or the effective operation of the DA's office.
Unidentified Justice: Do you agree with what your friend suggested, that the transfer notice preceded the questionnaire?
Mr. Strickler: Yes, Your Honor, Chief Justice.
The... Ms. Myers did receive informal notice prior... maybe two days prior to the circulation of the questionnaire that she was to be tansferred.
The findings of fact made by the district court are not clearly erroneous.
They are supported, amply supported in the record of this case.
They are, of course, facts to which this Court has frequently held that Rule 52(a) applies.
Indeed, it seems to me that they are also insulated from review by this Court's well established two-court rule, because the Fifth Circuit also heard the same argument that Mr. Wessel is making today.
The... Mr. Wessel says that the district court never considered the reasons put forward by Mr. Connick for the... his... the basis for the firing, that is, his reasons that there had been a refusal to accept the transfer.
That is simply not true.
The judge did... Judge Gordon did consider that, and it is clear in his opinion that he found that Sheila Myers had not refused a transfer.
He found that Mr. Connick did not believe she had refused a transfer.
Indeed, when Mr. Connick came back to his office after hearing about the questionnaire, he started interviewing various assistant district attorneys who had received the questionnaire, and he wasn't interested in interviewing them as to whether Sheila Myers was refusing to transfer.
He was interested in the content of the questionnaire.
In fact, he interviewed one district attorney... his name is Fred Ours, who was from Section I, that is, the section of court to which Ms. Myers was to be transferred, who had talked with Ms. Myers only that morning about how they were going to split up the work in Section I, but Mr. Connick wasn't interested in that.
He was interested on the questionnaire.
So, the district court's finding that not only had there not been a refusal to accept the transfer, but also that Mr. Connick didn't believe there had been a refusal, is also well supported in the record.
It is a finding with regard to motivation which this Court in Pullman Standard versus Swint last term found is a fact to which Rule 52(a) applies.
Since the Petitioner cannot really do anything with those facts, he urges this Court to hold as a matter of law that the content of this questionnaire was so totally devoid of value as to be per se unfit for protection under the First Amendment.
In effect, what he is saying is that the district court erred in even applying Pickering at all, because the questionnaire falls within one of those narrow kinds of speech which this Court has found is outside the scope of the First Amendment to begin with.
Unidentified Justice: I really don't think that's a fair characterization of his argument.
He says that it's basically an internal matter that Pickering doesn't apply to.
I don't think he says it quite the way you describe it.
Mr. Strickler: Well, Your Honor, Justice Stevens, the reason I'm saying that is because the Petitioner seems to make... base his whole argument on a distinction between matters of "public concern" and matters not of public concern, and I perceive his argument to be that on a matter where an employee is speaking internally, within the office, on a matter not of public concern, that that is a matter outside of the First Amendment protection, and that Pickering shouldn't even have been applied there.
Unidentified Justice: Insofar as it goes to running an office, that the person in charge of the office has a right to discharge someone for making disruptive comments in the office that don't have any particular public value.
That's the thrust of his argument, I think.
Mr. Strickler: Well, if that's the thrust of the argument, Your Honor, I certainly would not disagree that the content of the questionnaire, whether it affects a matter of great public concern or only a very narrow internal matter, is a relevant circumstance to be weighed in the Pickering analysis.
This Court has said in Givhan versus Western Line Consolidated School District that where the speech is internal, not only the content but the manner in which it is made, and the time and place and so forth, all the factors be weighed, and I certainly would concede that the content of the questionnaire must be weighed in the Pickering balance.
The district judge in this case did that.
He found that this was a matter that was of public concern.
I think he was clearly right.
Certainly the district judge, the person that's on the local scene, is the person best able to make--
Unidentified Justice: Mr. Strickler?
Mr. Strickler: --Yes, sir.
Unidentified Justice: What if the questionnaire had contained only Question Number 10?
Do you think the district court would have found... made exactly the same findings in connection with what you are now referring to?
Mr. Strickler: Justice Rehnquist, I would have no way to say what the district judge would have done in that case, but I think clearly if the questionnaire had only been directed to the confidence in that he... under these circumstances, he would have found it protected, and the reason I say that is because four of the five persons mentioned in Question 10, these middle level supervisors, as the personnel testified, they were all called as witnesses by the defendant, none testified that in any way was their working relationship with Ms. Myers in any way poisoned or interrupted or would be interrupted in the future by this questionnaire.
Unidentified Justice: Did they testify that it wasn't?
Mr. Strickler: They didn't testify that it wasn't, Your Honor, but I think that's the... they weren't... they weren't asked the question to the defendant, and I think that's the clear implication from their testimony, that it would not have been.
Unidentified Justice: Well, if they weren't asked, I would think the implication from their testimony was simply that it wasn't asked.
I don't think you can draw a negative inference or one way or the other on that.
Would you defend the district court judgment here if in fact... on the basis you are defending it now if in fact only this Question 10, do you have confidence and would you rely on the word of, listing the six supervisory people?
Mr. Strickler: Absolutely, Your Honor.
Absolutey, and I think our argument is exactly the same.
Mr. Connick did not go to his... these four persons or five persons and ask them, do you feel your integrity is being questioned, can you work in the future with Sheila Myers.
He didn't ask... they were in the room with him when he... or some of them were in the room when he fired Sheila Myers.
He didn't even consult with them.
Unidentified Justice: Well, why should he have consulted with them?
If he felt that the ability of his own senior staff to supervise people further down the line was in jeopardy, I mean, that was a judgment, I would think, for him to make.
I don't think he has to go ask the senior staff, do you feel your authority is undermined.
Mr. Strickler: --Your Honor, in the Pickering case itself where this branch of the law started, the school superintendent and all the members of the school board testified without contradiction that they thought that letter written by the school teacher, Pickering, was incredibly damaging to the future ability of the school board to raise money, to get its bond selection out, and so forth, and this Court said there wasn't a shred of evidence of that.
You cannot, going back to Tinker versus Des Moines School System, you cannot restrict the First Amendment rights on an unsupported fear of--
Unidentified Justice: Well, Chief Justice Taft long ago said that judges should not rejected as judges what they know as people, and I think there is an element of that in the case.
Mr. Strickler: --Your Honor, to the extent that the... think that certainly the question... Pickering makes relevant the question of whether the... or the issue of whether the questionnaire would have disrupted the harmonious working relationships with intermediate staff and perhaps even with Mr. Connick himself.
There was no evidence in this case that that... that there was going to be any such disharmony, and indeed the district court found that there wouldn't be.
Unidentified Justice: Well, let me call your attention to one comment of the district court in its opinion on the relief granted, and that's on Page A-20, where he's speaking of injunctive relief.
The opening phrase is,
"Considering the acrimonious circumstances surrounding plaintiff's departure from the district attorney's office. "
Mr. Strickler: "And the adverse feeling necessarily engendered by her resort to judicial remedies. "
Unidentified Justice: Right.
I take it there were two sources of acrimony, one, her resort to judicial remedy, and two, the circumstances surrounding her departure from the district attorney's office.
Mr. Strickler: I believe, Your Honor, that as you said, you... no one should ignore what is common sense, and any time that there has been a discharge in any kind of employment there are going to be some acrimonious feelings about that, and when the employee, the rejected employee files suit to enforce his or her rights, there is going to be some ill feeling about that.
The judge heard the testimony.
He recognized that fact.
He was exercising his equitable discretion.
There is not a hint in this record that Judge Gordon felt that he was compelled to grant reinstatement, but he listened to all the evidence, and he found that even though there might be some ill feelings arising out of this litigation and the circumstances surrounding it, that reinstatement was appropriate anyway.
He didn't... But at the same time, he was clearly... he clearly weighed the Pickering balance, or made the... applied the Pickering balancing procedure, and found that with regard to the content of the questionnaire, it would not create such a disharmony in the district attorney's office that it would make Ms. Myers' ability to continue functioning there impossible or inefficient.
Indeed... and there was, of course, ample reason for him to believe that.
Mr. Connick certainly didn't testify that he himself couldn't in any way put his trust in Sheila Myers in the future.
Joe Meyer, her immediate supervisor, testified, and he said, I don't look over the shoulder of anybody.
If they come and consult with me, they have... on a matter, a particular tactical matter, I will talk to them, but I don't go around the courts looking over their shoulders, and particularly in Sheila Myers' case, she was the most senior attorney we had.
Of course, Joe Meyer was, even though he was the immediate supervisor of Ms. Myers, he wasn't even consulted before the discharge.
He wasn't even called in.
And one would think that he would be the person whose concern with regard to harmonious working relationship would be the most... would be the most relevant.
Unidentified Justice: Do you think it was just mere accident that the questionnaire was circulated during the same time... during the same period of time that a transfer was being talked about?
Mr. Strickler: Justice White, it certainly was not an accident.
Unidentified Justice: What?
Mr. Strickler: It certainly was not an accident.
Unidentified Justice: So it was her... circulating the questionnaire was in response to suggestions that she be transferred?
Mr. Strickler: I believe the record does reflect and the district judge found that the transfers and the manner in which the transfers were announced was what started the ball rolling.
Unidentified Justice: Oh, so it was the fact that she was being... she was going to be transferred.
Was this her way of combatting her transfer?
Mr. Strickler: Absolutely... absolutely not.
Unidentified Justice: Well, why wasn't it then just an accident that she--
Mr. Strickler: I believe that the, Justice White, the record shows that Ms. Myers was unhappy about the transfer of herself, she was unhappy about the way all the transfers were--
Unidentified Justice: --Including hers.
Mr. Strickler: --Including hers.
Unidentified Justice: So then came, as a response, the questionnaire.
Mr. Strickler: Well, no, that's not quite accurate.
The first thing that came--
Unidentified Justice: Well, that's what I want to know.
Mr. Strickler: --was a meeting with the first assistant, Mr. Waldren, at which, according to both Mr. Waldren's testimony and Ms. Myers', the discussion started off about the transfers, but kind of went on into... and broadened in scope, about various things that Ms. Myers had to say about the efficient working of the DA's office.
Mr. Waldern suggested, and again this is what the court found, Mr. Waldren suggested that Ms. Myers was speaking only on her own, and that other people did not share her views.
Ms. Myers said, no, that's... I think I do... I am speaking for other people, and my view is not unique, and she said she would do some research on it, and what she did then was prepare the questionnaire.
And I take issue with what Mr. Wessel said.
Mr. Wessel said the questionnaire is a... it is just a kind of a... putting the questions, these internal and petty gripes about her own transfer.
I think if you... the questionnaire, of course, is reprinted in the cert petition, and it clearly shows that it has a broader scope.
It deals with general morale in the office, as well as--
Unidentified Justice: What was the purpose of the questionnaire?
Mr. Strickler: --The purpose of the questionnaire was to... for Ms. Myers to be able to come back with some material indicating that her views were not unique.
Unidentified Justice: Indicating?
Mr. Strickler: Unique.
And were not different from many other assistant district attorneys'.
Unidentified Justice: On questions like politics?
Mr. Strickler: On questions about whether, for example--
Unidentified Justice: On questions like politics, for example?
Mr. Strickler: --The question of whether DA's felt they had been pressured to work in political campaigns, yes.
Unidentified Justice: And as to whether they had faith in the officers?
Mr. Strickler: Yes.
Unidentified Justice: And how can she use that?
Mr. Strickler: Well, what she--
Unidentified Justice: Other than to disrupt the office?
Mr. Strickler: --What she intended to do--
Unidentified Justice: What did she do other than disrupt the office?
Mr. Strickler: --What she intended to do, Justice Marshal, was not to go to the press or go spread around things to the outside world, but to present the views, that is, the results to Mr. Waldren.
Now, she never got to do that because she got fired, but that was her intent.
The record makes... she testified to that, and it is certainly not contradicted, that that's what she intended to do with the results.
Ms. Myers, as a matter of fact, Justice Marshal, made every effort to keep this questionnaire from getting out to persons other than those directly concerned.
She didn't... She testified that she didn't even put the questionnaire in the mailboxes of the DA's for fear that someone else would see it.
Unidentified Justice: How do we know that?
Mr. Strickler: She testified to that, and it is not contradicted.
And I believe there is a finding to that effect in the district court.
Unidentified Justice: Is it also true she telephoned people?
Mr. Strickler: To find out whether they were--
Unidentified Justice: She telephoned people--
Mr. Strickler: --Yes.
Unidentified Justice: --about the questionnaire?
Mr. Strickler: To find out whether they were available.
Unidentified Justice: And you have never heard of anybody overhearing a telephone conversation?
Mr. Strickler: I don't believe the record reflects whether the... I believe the record reflects that she telephoned persons to find out whether they were available, and then she went and gave the questionnaire to them.
The district attorneys who testified who received the questionnaire said it took a minute, two minutes to do.
Unidentified Justice: Mr. Strickler--
--One of the elements of relief here was ordering her reinstatement, besides giving her some damages.
Mr. Strickler: Yes, sir.
Unidentified Justice: Reinstated into what position?
Mr. Strickler: She was--
Unidentified Justice: Her old position or the new one?
Mr. Strickler: --The reinstatement just simply said, as an assistant district attorney, and did not--
Unidentified Justice: Well, does she accept the transfer or not under this--
Mr. Strickler: --Oh, absolutely.
It was never--
Unidentified Justice: --The lower courts endorsed the assignment.
Mr. Strickler: --It was never our contention that Ms. Myers was entitled to reinstatement to a particular section.
Unidentified Justice: Now, do you find any internal inconsistency in the court's finding in which he said, the defendant, the district attorney, neither acted with malice nor reckless or wanton disregard for plaintiff's civil rights?
Do you find any inconsistency between that finding and the other findings that he made?
Mr. Strickler: No, sir.
That finding is with regard to our claim for punitive damage, and I believe that a finding that a person has not acted recklessly or with malice for purposes of punitive damages does not mean the person hasn't acted knowing the consequences or knowing what his actions will entail.
And certainly the district judge found that, as a finding of facts, that Mr. Connick had acted because of the questionnaire and would not have acted but for the questionnaire.
I don't believe there's anything inconsistent in saying that, in saying that he acted without malice.
Unidentified Justice: Is that entirely consistent with the fact that she was notified of her transfer before the questionnaire was circulated?
Mr. Strickler: She was notified of her transfer, Your Honor, but the questionnaire was not a part and parcel of any refusal to accept the transfer.
Unidentified Justice: But she did refuse to accept the transfer, didn't she?
Mr. Strickler: She did not, Your Honor.
There is a finding... the court found that she did not accept... refuse to accept the transfer.
In fact, when she talked to Mr. Waldren and Mr. Connick, she said, I will consider it.
Now, there were two witnesses who testified, contrary to Ms. Myers' testimony, that she had flatly refused to accept the transfer.
The district judge heard their testimony and didn't believe them.
There was ample reason not to believe them.
Unidentified Justice: If a superior tells a subordinate, gives a subordinate an order, and the subordinate says, I will think about it, I will consider it, what do you call that?
Mr. Strickler: I don't call it an absolute, flat refusal to accept an order.
Indeed, the district Judge found on the morning that Ms. Myers was fired she had a conversation with Mr. Connick, she told him that she would consider it, consider accepting the transfer, and at that point Mr. Connick thought that was a satisfactory answer.
He didn't... He certainly didn't fire her at that point or say, that's unsatisfactory, or whatever.
That was a finding of fact made by the district judge.
I think that this... the context in which this has to be reviewed, Your Honor, is the fact that Mr. Connick also testified that complaints about transfers, internal complaints to him about transfers were very common, and that while he didn't think they were negotiable, at the same time he didn't... indeed, put very little weight on the fact that DA's frequently complained about going one place or the other.
In fact, he testified that on occasion he had allowed Ms. Myers on an earlier occasion to talk him out of being transferred.
So, the finding that Mr. Connick thought it was acceptable that she said she was going to consider it is certainly not only supported in the record but it is understandable.
I think the important point, though, is the district court found that Mr. Connick did not fire Ms. Myers or discharge her because he believed she was refusing the transfer.
There was no refusal, and he didn't believe there was a refusal.
The district judge found that he fired her because of the questionnaire, and that leads us back again to whether the questionnaire itself falls within protected speech.
This Court has frequently said that the way one is to answer that is to apply the Pickering balancing test.
The district judge did that.
He applied it... he took into account all the factors, including the possibility of some disruption of the working relationship, and he found that in fact the speech was protected.
Unidentified Justice: That's not purely a factual question, though, is it?
Mr. Strickler: No, it's not, Justice O'Connor.
Unidentified Justice: So we wouldn't apply a clearly erroneous test.
Mr. Strickler: --I believe the Pickering balance includes findings of subsidiary fact, but I believe that ultimately the--
Unidentified Justice: So at best it's a mixed question.
Mr. Strickler: --A mixed question; I believe that's an accurate characterization.
The Court, after finding... the district judge, after finding that the Pickering balancing had been properly applied and finding that it was protected, went ahead and then applied the Mount Healthy test, and he considered, of course, the reasons that Mr. Connick had put forward.
He did not disregard those reasons, as Mr. Wessel argued.
He considered those reasons and found that in fact the questionnaire was the real reason, the but-for reason, and--
Unidentified Justice: --Turning for a moment to the question whether the First Amendment protects the circulation of the questionnaire, do you think any of the questions in the questionnaire, other than the one about feeling political pressure, are matters of public concern?
Mr. Strickler: I believe they're all matters of public concern.
I believe they're all matters of public concern because they all relate to the efficient operation and the morale of an important governmental agency.
They're at least as important, it seems to me, as the bond issue speech that was addressed by this Court in Pickering, and they're more important, it seems by any standard, than the dress code communication that was at issue in Mount Healthy.
Mount Healthy involved a communication regarding the content of an internal dress code in a public school.
Now, if that's a matter of public concern, it seems to me the issues that are addressed in this questionnaire are matters of public concern.
Unidentified Justice: Of course, in Mount Healthy the employee went public with the thing, as I recall.
Mr. Strickler: That's correct.
Unidentified Justice: It was on a Cincinnati radio station.
Doesn't that add a little different dimension to the case than when it's purely internal?
Mr. Strickler: Only in the respect that it implicates another factor in the Pickering balance, Your Honor.
It certainly seems to me that some kind of communications are more disruptive if they're made in the public forum.
For example, if Ms. Myers had indeed broadcast some questions about the competency of her supervisors to the public at large, I think that that would be more disruptive than what she, far more disruptive than what she did.
And I think a court must take that into account.
So to the extent that it went to the public at large, I think it is a factor to be weighed in the Pickering balance, but I do not think that it is a... that this Court has ever, and I certainly do not think in Pickering this Court intended, to draw any kind of bright line between matters of public concern and matters of non-public concern and say matters of non-public concern are without any protection whatsoever.
And I think this Court has said the exact opposite on many occasions where it has said--
Unidentified Justice: Would you say that on the question of whether a particular statement was a 'matter of public concern or not, it's totally indifferent whether the statement was made publicly or privately?
Mr. Strickler: --It's not totally indifferent.
Unidentified Justice: It's relevant to the question whether there's disruption.
The question of whether the issue is a matter of public concern, I don't see why it would make any difference.
Mr. Strickler: It shouldn't make any difference on that.
It does make a difference, though, as to the potential disruptive effect.
I don't think there's any doubt about that.
Unidentified Justice: Mr. Strickler, was there any discussion or had there been any discussion in the city with respect to the morale of the district attorney's office, any public discussion?
Mr. Strickler: The record does not reflect that, Your Honor.
Unidentified Justice: Is it your suggestion, in light of comments you made earlier in your argument, that this sort of morale is really... this sort of questionnaire is really beneficial to office morale?
Mr. Strickler: I believe this sort of questionnaire can be indeed beneficial to the workings of a government bureaucracy.
Unidentified Justice: With question 10 in it, suggesting that all of this individual's supervisors were people who could not be trusted or whose word couldn't be believed?
Mr. Strickler: The question is, do you have confidence in and would you rely on the word of, and then the names.
I don't believe that's a personal attack.
Unidentified Justice: You don't?
Mr. Strickler: No, sir.
But even if the Court were to consider it that, it seems to me that this Court has frequently said that public employees have rights to communicate or to assemble and to organize with regard to their work in the public sector.
Without being able to communicate ideas like, do you think your supervisor is doing a good job or do you trust their word, that right, that First Amendment right to organize, is meaningless.
Unidentified Justice: Talking about public and private, do you know of any private organization that allows you to circulate questionnaires while you're working?
Mr. Strickler: I know of some private organizations that do, Your Honor, but private organizations are not bound by the Fourteenth Amendment.
Unidentified Justice: That's what I'm saying.
But still, they don't allow it, do they?
Mr. Strickler: I think it depends on the organization, Your Honor.
Unidentified Justice: I bet you it does.
Don't you agree that at least for one day that the Respondent in this case didn't do anything on behalf of her job?
Mr. Strickler: That is certainly not correct, Your Honor.
Unidentified Justice: Well, doesn't the record show and the Judge's findings show that during that day she passed out the questionnaire, she carried it around and gave it to people, made sure she didn't let anybody see it, she telephoned people, she had people come in?
Isn't that what the record shows, in one day?
Mr. Strickler: Your Honor, the record does show that, and the record shows--
Unidentified Justice: What other time is left?
Mr. Strickler: --The record shows it was all done on lunch hour.
Unidentified Justice: Well, I'd like to see... well, how can... do you have lunch all afternoon?
The record says during the afternoon she called people.
Mr. Strickler: Your Honor, I'd be happy to respond to your question.
I see the red light is on.
But the record--
Chief Justice Burger: You can answer the question.
Mr. Strickler: --The record shows that the questionnaire was prepared before working hours and it was distributed starting at 12:00 o'clock and--
Unidentified Justice: 11:30.
Mr. Strickler: --Shortly before 12:00 o'clock.
And it was completed before 1:00 o'clock, the distribution that there was, and that she was fired at 2:00 o'clock.
Chief Justice Burger: Very well.
Do you have anything further?
You have one minute remaining.
REBUTTAL ARGUMENT OF WILLIAM F. WESSEL, ESQ. ON BEHALF OF PETITIONER
Mr. Wessel: Thank you, Mr. Chief Justice.
The bond issue in Pickering may have been determinative of whether or not that board of education was going to be reelected.
The question of whether or not Sheila Myers was moved from one section of the court to the other or her complaints about that would never under any imagination determine whether or not Mr. Connick would be reelected.
The public is not concerned about who is furnishing and the efficiency of the services in any particular section of the court.
They're interested in the man on top and whether or not he's getting the job done in terms of getting the cases decided and his policies pertaining to plea bargaining and his policies pertaining to a speedy trial.
And that I think is the issue before the Court relative to this questionnaire.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.