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Judicial Rulings

Public employees beware:
Don't bug the boss

Public employees who complain about a boss may be exercising free speech, but in some cases they may also get zapped, according to the U.S. Court of Appeals for the 7th Circuit.

In this case an employee of the Illinois Department of Public Health, in charge of assuring that ambulance companies comply with regulations, disagreed with his supervisor over sanctions on noncomplying companies. Contents of one of his memos found their way into newspapers in Champaign Urbana and Belleville. When his job was eliminated and he was given the option of taking a different assignment or resigning, he brought suit, claiming that the action was retaliation for his complaints.

In Connick v Myers (461 U.S. 138 (1983)) the U.S. Supreme Court held that matters of an employee's personal interest are not protected speech but that speech about matters of public concern is protected. Here the appeals court said, "The way in which the Department of Public Health enforces its regulations with respect to ambulance service may well have an impact ... on the quality of ambulance services available to the public" and found that the employee's criticisms were protected. On the other hand, it ruled that the employee did not speak as a citizen since "it was his job to investigate such violations and make recommendations as to the appropriate response."

The U.S. Supreme Court's decision in Picketing v Board of Education (391 U.S. 563 (1968)) held that a public employee's free speech rights must be weighed against the state's interest in efficient operation. In this case the court saw the employee's criticisms as sufficiently disruptive to justify the department's actions.

The July 16 decision in Marquez v Tumock (Docket No. 91-2635) was unanimous, with an opinion written by Judge Richard D. Cudahy.

Federal court OK's Illinois Supreme Court gag rule for judicial candidates

Rules limiting comments of candidates for judgeships are constitutional, according to a ruling by the U.S. District Court for the Southern District of Illinois. Don W. Weber, Republican candidate for the Illinois Supreme Court in the 5th District, claimed that under the rules he could not express himself on a number of general issues, the hottest among them being the death penalty, abortion and gun control.

The rule says a candidate "should not make pledges or promises of conduct in office. . . [or] announce his views on disputed legal or political issues . . ." (see III Rev. Stat. 7991, ch. 110A, sec. 67B(l)(c)). While it is obvious that candidates should not speak on specific cases that might come before them, Weber contended that the rule is not narrowly tailored to this end, so that it abridges First Amendment free speech guarantees. The Code of Professional Conduct implements the rule by requiring that candidates refrain from conduct "which, if the lawyer were a judge, would be a breach of the Code of Judicial Conduct" (see III Rev. Stat. 1991, ch. 110A, rule 8.2). Weber cited two cases in which the Illinois Judicial Inquiry Board had charged sitting judges for statements similar to those he wished to make.

The court here also cited Picketing in saying that protection of free speech must be balanced against legitimate state interests, in this case the interest in guaranteeing an impartial judiciary. It held that the rule is very narrowly tailored since a candidate "may announce his views on measures to improve the law, the legal system, or the administration of justice, if ... he does not cast doubt on his capacity to decide impartially any issues that may come before him."

The federal court found the Illinois rule constitutional, saying, "This Court believes that the Supreme Court of Illinois would read Rule 67 to mean that 'disputed legal or political issues' refers to those which are likely to come before the Court," and "the prohibition against making 'pledges and promises' would only apply to those issues likely to come before the Court."

The opinion in Weber v Illinois Judicial Inquiry Board, etc. et al (Docket No. 92 329 WLB), issued July 31, was written by Judge William L. Beatty.
F. Mark Sieben

32/October 1992/Illinois Issues


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