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).
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.
America's judiciary has necessarily participated in this debate, and the Supreme Court has found that community values are a critical part of the calculus used by juries to determine the ultimate punishment. In an oft-cited passage from Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), the Supreme Court described this calculus as follows:
[A] jury that must choose between life imprisonment and capital punishment can do little more -- and must do nothing less -- than express the conscience of the community on the ultimate question of life or death.