Tuesday, March 27, 2012
"Joe the Plumber," as Samuel Joseph Wurzelbacher (pictured left) became known, gained public exposure when he interacted with Presidential Candidate Obama in October 2008 and later endorsed the Republican Candidate John McCain. Wurzelbacher, a resident of Ohio, alleged that state officials accessed state databases to retrieve information about him, including his child support and unemployment records.
In its opinion in Wurzelbacher v. Jones-Kelley, the Sixth Circuit affirmed the district judge's judgment on the pleadings in favor of the defendants.
On his First Amendment retaliation claim, Wurzelbacher failed to meet the standard requiring allegations that:
(1) the plaintiff engaged in constitutionally protected conduct;
(2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.
The Sixth Circuit found that Wurzelbache's general claims of emotional distress caused by his knowledge that databases had been searched for his name was inadequate to allege the necessary adverse action. Importantly, any information gleaned from the database searches was never disclosed. Even if this was an "adverse action," it was not the kind of action that would deter a "person of ordinary firmness" from continuing to speak.
Wurzelbacher similarly failed to allege sufficient facts for a violation of his Fourteenth Amendment informational privacy rights. For the Sixth Circuit, these informational privacy rights must meet the substantive due process standard that “the interest at stake relates to those personal rights that can be deemed fundamental or implicit in the concept of ordered liberty.”
Wurzelbacher may not be a trail-blazing opinion, but it does demonstrate the lack of constitutional remedy for state officials "doing research" on a person who has come to their attention for political reasons.
[image: Samuel Joseph Wurzelbacher, circa 2008, via]