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ZICCARELLI v. LEAKE

July 9, 1991

SALVATORE ZICCARELLI, Plaintiff,
v.
SPENCER LEAKE, individually and in his official capacity as Executive Director of the Cook County Department of Corrections, Defendant


George M. Marovich, United States District Judge.


The opinion of the court was delivered by: MAROVICH

GEORGE M. MAROVICH, UNITED STATES DISTRICT JUDGE

 Salvatore Ziccarelli ("Ziccarelli") was fired from his position as a prison guard because he testified on behalf of the defense at an Illinois death penalty hearing. Ziccarelli filed this civil rights lawsuit claiming he was fired because he exercised his first amendment right to testify at trial. Both parties move for summary judgment, and Ziccarelli moves for injunctive relief and an expedited trial. For the reasons set forth below, we grant summary judgment in favor of Ziccarelli.

 FACTS

 Ziccarelli began work as a correctional officer at the Cook County Department of Corrections ("Department") on September 1, 1989. By statute, new correctional officers hold their positions on a probationary basis for the first twelve months of their appointment. Ill. Rev. Stat. ch. 34 para. 3-7008. During this time, the employees can be discharged at the will of the Cook County Sheriff. Id.

 The controversy in this case concerns the Department's unwritten policy regarding correctional officers testifying about matters related to their job. While the parameters of this policy are vague, the Department's policy prohibits its officers from testifying about any matters related to their job without first having been served with a subpoena that had been evaluated either by Robert E. Golty ("Golty"), assistant director of the Department, or Spencer Leake ("Leake"), the executive director of the Department. The Department claims this policy is needed to ensure the safety of correctional officers who guard inmates and to ensure correctional officers are not indiscriminately making court appearances to testify about their jobs. *fn1"

 On November 2, 1989, while off-duty, Ziccarelli testified voluntarily on behalf of the defense at a death penalty hearing in People v. Jacobson, 88 CR 7780, a criminal case pending in the Circuit Court of Cook County. *fn2" Ziccarelli was acquainted with the defendant and provided character testimony on his behalf. Upon learning of Ziccarelli's appearance at the death penalty hearing, the Department terminated Ziccarelli for testifying without first having been subpoenaed.

 On January 25, 1990, Ziccarelli filed a two-count complaint pursuant to 42 U.S.C. ยง 1983 against Leake individually and in his official capacity. Both parties moved for summary judgment. For the reasons set forth below, we find that Ziccarelli's termination was in violation of his first amendment rights and grant Ziccarelli's motion for summary judgment. *fn3"

 Summary judgment is appropriate if "the pleadings, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ." Fed. R. Civ. P. ("Rule") 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In ruling on a motion for summary judgment, a court must view the record and all inferences to be drawn from it in the light most favorable to the nonmovant. Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).

 There is no issue of fact regarding the circumstances of Ziccarelli's termination; the Department admits that Ziccarelli was terminated because he violated the Department policy prohibiting an employee from testifying about matters related to the Department without first having been subpoenaed. Defendant's memorandum in support of cross-motion for summary judgment and in Opposition to Plaintiff's Motion for Summary Judgment at pages 1 & 3. This matter is appropriate for summary judgment because the only issue before us is the application of the relevant law to these facts.

 Initially, we note that Ziccarelli has few legitimate challenges to his discharge because at-will public employees can be discharged for any reason, or for no reason at all. Rankin v. McPherson, 483 U.S. 378, 383-84, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); Tolmie v. United Parcel Service, Inc., 930 F.2d 579, 580 (7th Cir. 1991); Duldulao v. St. Mary of Nazareth Hosp. Center, 115 Ill. 2d 482, 489 505 N.E.2d 314, 106 Ill. Dec. 8 (1987). However, Ziccarelli is entitled to reinstatement if he was discharged on a basis that infringes his constitutionally protected freedom of expression. Rankin, 483 U.S. at 383-84. Thus, the question of law which we must decide is whether Ziccarelli's first amendment rights were violated because he was discharged for testifying at the death penalty hearing.

 Whether Ziccarelli's first amendment rights were violated is determined by the balancing test developed in Pickering v. Board of Education and its progeny. That test requires us to balance the interests of the employee as a citizen, in commenting upon matters of public concern, against the interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) and Mt. Healthy City School Dist. Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977) refine the Pickering test. Our collective reading of these cases indicates we must conduct a four-part inquiry to determine whether Ziccarelli has a valid first amendment claim.

 First, we must decide the threshold question of whether the expression touches upon a matter of public concern. Connick, 461 U.S. at 141-49. Second, if the expression satisfies the public concern test, we must balance the interests of the employee in making the statement against the public employer's interest in the effective and efficient fulfillment of its responsibilities to the public. Connick, 461 U.S. at 150; Pickering, 391 U.S. at 568. Third, the plaintiff must show that the speech was the motivating factor in the employment decision. Mt. Healthy, 429 U.S. at 287. Finally, if the plaintiff makes the above showing, the burden shifts to the employer to show by a preponderance of evidence that it would have reached the same decision in the absence of the protected activity. Id. The first two parts of our inquiry, into the protected status of the speech, is one of law for the court to decide. Connick, 461 U.S. at 148 n. 7; Griffin, 929 F.2d at 1212. The final two steps involve questions of fact for the jury. Melton v. Oklahoma City, 879 F.2d 706, 713 (10th Cir. 1989).

 Leake does not contest that Ziccarelli's expression was the motivating factor in the Department's decision to discharge him or that the Department would not have reached the same decision in the absence of the protected activity. We therefore do not need to discuss the two-part Mt. Healthy analysis and only need to determine whether Ziccarelli's speech is protected under the first amendment.

 A. Public Concern

 Whether a public employee's speech touches matters of public concern must be determined by the content, context, and form of the given statement as revealed by the whole record. Connick, 461 U.S. at 147-48; Griffin, 929 F.2d at 1214.

 1. Content and Context

 The content and context factors focus on the use of the expression. If that use does not relate to any matter of political, social, or community concern, then the Pickering test favors the government. Connick, 461 U.S. at 146 (government officials should enjoy wide latitude in managing their offices without intrusive oversight by the judiciary in the name of the first amendment).

 The content of Ziccarelli's speech was character testimony on behalf of Jacobson. The context of Ziccarelli's speech was testimony offered at Jacobson's death penalty hearing to convince the jury not to impose the death penalty. Without doubt, we find the content and context of Ziccarelli's speech is a matter of political, social, and community concern. To support that conclusion, we could take judicial notice that testimony at a death penalty hearing is a matter of political, social and community concern; other courts have taken judicial notice of similar life and death issues. McPherson v. Rankin, 786 F.2d 1233, 1236 (5th Cir. 1986), aff'd, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987). *fn4"

 In the alternative, support for our conclusion is found in the historical record. A contentious political and social debate has long surrounded the ultimate penalty. See e.g., D. Hook & L. Kahn, Death in the Balance, Lexington Books (1989). And this debate continues today, being maintained by groups who support and oppose the death penalty, some of whom maintain all-night vigils at every state-sanctioned execution. *fn5"


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