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Justices find email is constitutionally protected speech

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A trial court erred in granting summary judgment to a fire chief and township in a firefighter’s suit following his termination by the chief for sending a personal, political email that the chief believed contained false statements of fact. The firefighter’s email was actually constitutionally protected speech, the Indiana Supreme Court held Thursday.

Bradley Love, a volunteer and part-time firefighter, responded on his personal email account to an email he received regarding the candidate he was supporting for Sugar Creek Township trustee. In the email sent to a few people, Love claimed the Sugar Creek Fire Department has given new sport utility vehicles to lieutenants and captains, and they drive them all over the state; the fire department doesn’t make runs after 4 p.m.; and other claims regarding the fire department.

Fire chief Robert Rehfus was forwarded the email and decided to fire Love because he claimed it contained false statements of fact. Rehfus was supporting a different candidate for trustee.

Love filed a suit under 42 U.S.C. Section 1983 against Rehfus, individually and in his official capacity, and against the Sugar Creek Township arguing his First and Fourteenth Amendment rights were violated. The trial court granted summary judgment in favor of the defendants. The Indiana Court of Appeals reversed.

In Bradley J. Love v. Robert Rehfus, et al., No. 30S01-1004-CV-162, the justices reversed the trial court, finding that Love’s email had constitutional protections under the test set forth in Pickering v. Board of Education, 391 U.S. 563 (1968) and its progeny. There were no genuine issues of material fact as to the facts considered under the Pickering balance – that the public employee was speaking as a citizen and speaking on a matter of public concern – and Love’s speech was protected public-employee speech under the Garcetti-Connick-Pickering test, wrote Justice Frank Sullivan.

The defendants didn’t show that Love’s email had any potential to create difficulties maintaining discipline or loyalty or interfered with working relationships in the fire department. Also, nothing suggested that writing and sending the email interfered with Love’s ability to perform his job or the regular operation of the department. The email can’t be considered a personal attack on Rehfus because it doesn’t reference him by name or position, Justice Sullivan continued.

“The government was not justified in treating Love different from any other member of the general public,” he wrote.

Love argued that the township could be liable for Rehfus’ actions based on Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), because Rehfus had final policymaking authority for the township. The justices found summary judgment in favor of either party on Love’s claim of municipal liability under Section 1983 is inappropriate. An inquiry needs to be made as to whether Rehfus had final policymaking authority regarding the employment of part-time, volunteer firefighters, not whether he was the final policymaking authority with regard to all employment matters for the township or within the department.

The justices ordered on remand that the trial court determine who the final policymaker was, and if it wasn’t Rehfus, determine whether that official regulated to Rehfus the relevant final policymaking authority.

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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