The case before the U.S. Supreme Court on Tuesday involved talk of politics and patronage in local government. It happened to involve a city government, but it could have just as easily been a school district, as we’ll get to in a bit.
Jeffrey Heffernan was a police detective in Paterson, N.J., in 2006 when a mayoral election was approaching. Heffernan’s mother asked him to pick her up a yard sign of her preferred candidate, Lawrence Spagnola.
Heffernan went to a campaign distribution point where workers were giving out the signs. He was a friend of Spagnola’s and wanted him to win, but Heffernan himself did not live in Paterson, so he stayed out of any active participation in the campaign.
While Heffernan was picking up the sign, however, he was observed by a Paterson police officer who served on the security detail of the incumbent mayor, Jose Torres—who happened to be running for re-election.
Word soon trickled back to the mayor, with an impression that Heffernan was campaigning for the mayor’s opponent. The next day, Heffernan was demoted from detective to patrol officer, and he was soon walking a street beat. His supervisors didn’t hide the fact that they were demoting him for campaigning, even though their action was based on a misimpression, and they never asked Heffernan for his story.
Heffernan sued for retaliatory demotion in violation of his First Amendment free speech and association rights. But he lost in a federal district court and in the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia. Those courts held that 3rd Circuit precedents foreclosed a First Amendment claim based on a mere perception of his speech or association, and that he had not actually spoken or associated with anyone in a way that prompted the actions against him.
The Supreme Court agreed to hear his appeal in Heffernan v. City of Paterson (Case No. 14-1280).
In their high court brief, Heffernan’s lawyers argue that a long line of the court’s decisions on politics and patronage in government workplaces protects the officer. They also contend that public employees such as police officers and school workers are often inundated with requests for campaign contributions and other assistance.
“These requests often come from incumbent candidates, who wield considerable power over municipal personnel decisions,” Heffernan’s brief says. “If these employees cannot be reasonably confident that they will be protected from retaliation if their employer perceives an insufficient level of support, the pressures for political conformity will mount.”
The brief cites a Newark Star-Ledger article about the school board in nearby Elizabeth, N.J. One teacher told the paper that “she would constantly get solicitations from members of the city’s board of education, asking for money. There were dinners, cocktail events, testimonials and tables of tickets to be bought and sold. It was a nonstop stream of beseechings.”
During the oral arguments in the case at the Supreme Court on Tuesday, Heffernan’s lawyer met some harsh skepticism from several members of the court about whether the police officer had suffered any constitutional violation at all.
“He wasn’t associating with anybody any more than he was speaking,” Justice Antonin Scalia told Heffernan’s lawyer, Mark Frost of Philadelphia. “He was doing neither one. ... He was associating with his mother, I suppose, in picking up the sign for her. But he was not expressing any political view. “
Scalia said that Heffernan “was fired for the wrong reason, but there’s no constitutional right not to be fired for the wrong reason.”
Frost said Heffernan “doesn’t need to speak, and he doesn’t need to take a position” to be protected by the First Amendment
“There’s a constitutional right, Justice Scalia, to be able to be free from patronage decisions and to not be discharged or demoted on patronage grounds,” Frost added.
Justice Anthony M. Kennedy didn’t seem to accept that theory, and he wondered aloud what right Heffernan was trying to vindicate. But then seemed to answer his own question.
“Would it be fair ... to say that you’re asserting the right to be free from government inquiry into and oversight of your views?” he asked Frost, in reference to Heffernan. It was a theme Kennedy returned to several times.
Ginger D. Anders, an assistant to the U.S. solicitor general, also argued in support of Heffernan’s case.
“We think [he] has been hurt in the constitutional sense because the way that the court has defined the right in question is the right not to be subject to a test of political affiliation when it’s not a reasonable job requirement,” she said.
Thomas C. Goldstein of Bethesda, Md., representing the city of Paterson, said the First Amendment protects “an individual right” and not against “a government wrong.”
“An employee cannot bring a First Amendment free speech claim that says, you know, I didn’t actually engage in speech, but my employer thought I did,” Goldstein said.
Heffernan has “a very sympathetic claim,” Goldstein acknowledged. “I get the fact that we are very concerned that public employees not be transferred or demoted, but we have other laws and other regimes that fill that gap.”
He said Heffernan had potential remedies in his collective-bargaining agreement as well as under New Jersey’s civil rights laws.
Goldstein met strong resistance from Justice Elena Kagan. She expressed concerns about partisan officials coming into office and replacing workers without strong political affiliations—"every couch potato out there,” she said—with their own sympathizers, and that no First Amendment violation would occur under Goldstein’s arguments.
“See, I had always thought that ... part of the reason we have these protections is because we worry the government is doing things for impermissible reasons,” Kagan said. “That the government wants to create a world of speech in which everybody agrees with it and nobody opposes it. And that’s a fundamental tenet of what the First Amendment and all our cases are about.”
Near the end of the argument, Goldstein sought to make a broad point about the Supreme Court’s line of cases about political expression in government.
“There is a real concern that is rooted in a history of the United States involving political patronage,” Goldstein said. “The court has never tried to extinguish politics from local government. And if you try to do that in New Jersey, we are going to be here a lot.”
A version of this news article first appeared in The School Law Blog.