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Indiana Supreme Court denies review of Kokomo case

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Within hours of hearing oral arguments, the Indiana Supreme Court decided not to grant transfer to review the case involving a Kokomo fire captain ;s demotion to firefighter because of comments made from outside the department. The appeals court had ruled the demotion did not constitute a violation of his First Amendment free-speech rights.

The court had not released a decision by early this afternoon, but the City of Kokomo had posted a press release saying the justices did not agree to accept transfer of in Kokomo v. Scott Kern, No. 34A04-0512-CV-726. Court officials confirmed transfer was denied.

The case stems from Kern ;s 2005 demotion, which was a result of his comments outside the department relating to a fireworks display in the neighborhood where he lived the year before. Fire Chief Dave Duncan denied an application for a fireworks display permit because it was considered incomplete, and Kern criticized the decision and made comments to the residents and local newspaper that it was politically motivated. The department denied those accusations and later demoted him for saying the comments brought the department into disrepute and undermined the administration.

The trial court found the demotion invalid because it violated Kern ;s free speech rights, but the Court of Appeals reversed that decision in its Aug. 17, 2006.

During Supreme Court arguments, attorney Andrew Wirick, representing Kokomo, argued this case is a matter of the department ;s integrity while Kern ;s attorney John Kautzman said it comes down to free speech only being protected for complimentary speech, which discourages public employees from publicly speaking about matters of concern. Justices asked questions about fabricated statements, political affiliations, and variations of harm caused by comments.

"This is an important case not only for the City of Kokomo but also for every city in Indiana," Kokomo ;s corporate counsel Jon Mayes said in the news release. "The City is a firm believer in protecting the First Amendment rights of citizens, but the courts recognize that those being unjustly criticized also have rights."
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