- Ex-prosecutor fired after testifying against boss can assert 1st Amendment claim, 7th Circuit says
Trials & Litigation
Ex-prosecutor fired after testifying against boss can assert 1st Amendment claim, 7th Circuit says
Posted Aug 5, 2013 5:50 PM CDT
By Martha Neil
A former assistant prosecutor in suburban Chicago can assert a First Amendment claim concerning his allegation that he was fired for cooperating when he was subpoenaed by a special prosecutor to testify against his then-boss, a federal appeals court has ruled.
Reversing a district court judge, the Chicago-based 7th U.S. Circuit Court of Appeals held Friday that plaintiff Kirk Chrzanowski acted as a citizen rather than within the scope of his ordinary employment duties when he testified in a grand jury proceeding directed against McHenry County State's Attorney Louis Bianchi and at a subsequent trial.
The ruling revives Chrzanowski's federal lawsuitbut does not make any determination on the merits. Chrzanowski also filed a state court defamation suit against Bianchi, which is ongoing in McHenry County, concerning remarks Bianchi made to the Northwest Herald after Chrzanowski's termination, the Northwest Herald reports.
Findlaw provides a link to the 7th Circuit's opinion, in which the appellate court notes that Chrzanowski's testimony concerned his work at state's attorney's office, and “allegations that Bianchi had improperly influenced and/or arranged a negotiated plea in a case for which [Chrzanowski] was principally responsible.”
However, "the fact that his testimony 'concern[ed] the subject matter of [his] employment' does not mean that Chrzanowski's speech 'owe[d] its existence' to his official responsibilities,' " the appellate panel writes. It said the prosecutor's testimony was akin to a schoolteacher criticizing the school board in a newspaper editorial, or an assistant district attorney talking with colleagues at work at about potential corruption in the office, both of whom could assert a First Amendment claim for being disciplined for expressing opinions they formed during their public employment.
"Chrzanowski worked in the criminal justice system, and his speech occurred in the course of judicial proceedings," the court said. "Nonetheless, when he spoke out about potential or actual wrongdoing on the part of his supervisors, he too was speaking 'outside the duties of employment.'”
Two prosecutions of Bianchi resulted in directed verdicts for the state's attorney, as earlier ABAJournal.com coverage detailed: