Virginia Lawyers Weekly VA Lawyers Weekly
Where a former state court magistrate judge was terminated after she made comments to a local paper about pending matter, her First Amendment retaliation claim may proceed.
Background
Elizabeth Fuller was employed as a magistrate judge in the Eighteenth Judicial District. She alleges that defendants retaliated against her and violated her right to free speech when they fired her for providing comments to the local newspaper, the Alexandria Times, about a pending, impending or concluded case in the judicial system by which she was employed.
She sues defendants in their personal capacities for retaliation in violation of the First Amendment and in their official capacities for violations of the First and Fourteenth Amendments. Plaintiff also alleges that defendants violated her due process rights because plaintiff’s termination did not provide an adequate opportunity to contest the allegations against her. Defendants have filed a motion to dismiss.
First Amendment claims
To determine whether a restriction imposed on a public employee’s speech violates the First Amendment requires “‘a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’”
To determine whether an employee’s speech addresses a matter of public concern, courts look to the “content, form, and context of a given statement, as revealed by the whole record.” Here, although plaintiff is identified in the Alexandria Times as “Alexandria Magistrate Elizabeth Fuller,” there is no evidence before the court that plaintiff herself used the title “magistrate” in making her statements to the newspaper. In addition, plaintiff’s use of the pronoun “we” in her comments to the Alexandria Times does not support an inference that plaintiff was speaking on behalf of her employer.
The fact that plaintiff issued an arrest warrant for Bouaichi in October 2019 and a commitment order for Bouaichi in January 2020 also does not support defendants’ claim that plaintiff spoke in her official capacity when she provided comments to the Alexandria Times about the appropriateness of Bouaichi’s bail and the perceived impropriety of Nguyen’s actions following Bouaichi’s release on bond.
Plaintiff was not involved with the bail decision discussed in her comments or any pending matters related to Bouaichi or Nguyen. Moreover, making statements to the press does not fall under plaintiff’s official duties as a magistrate. Thus, plaintiff’s limited prior involvement in Bouaichi’s case does not cause this court to conclude that plaintiff was speaking within the scope of her duties when she provided comments to the Alexandria Times.
Defendants also argue that plaintiff’s speech is unprotected because her comments to the Alexandria Times were based on a matter of “personal interest.” The court disagrees. Accepting all facts from the complaint as true, plaintiff’s comments to the Alexandria Times facially concern a matter of public interest.
Next, defendants argue that plaintiff’s right to publicly comment on the appropriateness of Bouaichi’s bail and the perceived impropriety of Nguyen’s actions following Bouaichi’s release on bond is outweighed by defendants’ interests, including ensuring effective and efficient services to the public and the public’s confidence in the judicial system. While there are serious governmental interests in, for example, ensuring the public’s confidence in a fair and impartial judicial system, the court is unable to say, at this early stage of litigation, that plaintiff will be unable to show that her interest in First Amendment expression outweighs defendants’ interest in the operation of the judicial system.
Qualified immunity
Assuming that a constitutional violation did occur, the court finds that the First Amendment principles were not clearly established such that a reasonable employer would have known that it was violating plaintiff’s rights when it terminated her employment. Thus, defendants are entitled to qualified immunity on plaintiff’s First Amendment retaliation claim.
Due process
Defendants argue that plaintiff was an at-will employee and had no protectible property interest in her continued employment as a magistrate. The court agrees. Plaintiff lacked a protectible property interest in continued employment and thus the requirements of procedural due process do not apply.
Defendants’ motion to dismiss granted in part, denied in part.
Fuller v. Hade, Case No. 1:22-cv-218, Feb. 28, 2023. EDVA at Alexandria (Giles). VLW 023-3-098. 24 pp.
