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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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