Third Circuit Defends Public Defender's First Amendment Rights to "Defend" Clients

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Reversing the district court, the Third Circuit's opinion today in  Flora v. County of Luzerne held that a public defender's complaint contained sufficient allegations to proceed with a First Amendment retaliation claim.

The unanimous panel held that the United States Supreme Court's 2014 decision in Lane v. Franks "clarified that '[t]he critical question under Garcetti [v. Ceballos] is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”  While the Third Circuit noted that the district judge did not have the "benefit of Lane" when it rendered its decision, it stated that "Garcetti alone should have steered it away from applying" the standard it did, a  “related to” employment standard.

"law and conscience" circa 1883 via

So what did Chief Public Defender Flora do that he alleges was protected by the First Amendment?  First, after many unsuccessful attempts to procure what he saw as inadequate funding for indigent defense, he eventually initiated a class action lawsuit for the benefit of indigent criminal defendants in state court, and interestingly simultaneously sought relief in federal court from being terminated for this action.  Second, the county's notorious "Kids for Cash" scandal had resulted in a 2009 order by the state supreme court of vacatur and expungement of thousands of delinquency adjudications and consent decrees, but in 2013 Flora learned that over 3,000 expungements had not yet occurred.  He "brought that failure to the attention of the County, the District Attorney for the County, the Administrator of the Court of Common Pleas, the public interest law firm that represented the juveniles in the expungement proceedings, and Judge Grim," who had been the special master in the case.

Both the lawsuit and the reporting of the failure to expunge were obviously "related to" Flora's position as a public defender.  But the Third Circuit rejected the "related to" standard in favor of the "ordinary duties" standard.  In this light, its interesting that the court highlights Flora's allegations that

his obligations as an attorney, rather than as the Chief Public Defender, compelled him to make the statements at issue. [And that] the funding crisis and the expungement issue as extraordinary circumstances impelling him to extraordinary speech.

 The Third Circuit concludes:

A straightforward application of Lane leads us to conclude that, given those allegations, Flora’s speech with respect to both the funding litigation and the expungement problems was not part of his ordinary responsibilities – it was not part of the work he was paid to perform on an ordinary basis. . . Flora’s ordinary job duties did not include the public reporting of lingering effects from government corruption or the filing of a class action suit to compel adequate funding for his office. Rather, he represented indigent clients in criminal court and in related proceedings . . . .To view it otherwise would unduly restrict First Amendment rights, because reporting malfeasance or misfeasance will regularly benefit an employee in the execution of his job duties by, presumably, removing impediments to proper government functioning.

The Third Circuit's opinion is another example of courts retreating from the broad brush of Garcetti and providing First Amendment protections for "whistleblowers," including attorneys who take action based on their ethical obligations.