Bennett v. Jones

McDONALD, Judge,

dissenting.

I disagree with the majority’s discussion and affirmance of the trial court’s summary dismissal of Bennett’s claim. First, while Martin v. Corrections Cabinet of Commonwealth, supra, does point out that unclassified state employees have “considerably less” protections than merit employees, the case clearly holds that even nonmerit employees cannot be terminated for certain “illegal reasons,” such as exercising their constitutional rights. I am also curious about the majority’s discussion of Scroghan v. Kraftco Corp. In that case the discharged employee had been working for a private employer. It is settled, I believe, that a public employee cannot be terminated for exercising one’s constitutionally protected rights, regardless of his or her property interest in the employment. The majority cites Rutan v. Republican Party of Illinois, which states:

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.... Such interference with constitutional rights is impermissible.” (Emphasis not added; citations omitted).

497 U.S. at 72, 110 S.Ct. at 2736, 111 L.Ed.2d at 65.

Clearly the majority is aware of the impact of Rutan, Elrod v. Burns, and Branti v. Finkel, supra, on a public employer’s attempt to infringe on the First Amendment rights of public employees, but refuses to apply them to this case for the reason that Bennett did not “point to a specific constitutional or statutory provision....” While the First Amendment may not have been mentioned in her pleadings, Bennett asserted she was fired because she obtained a divorce and voiced interest in running for a government office. A law degree is not required to realize Bennett’s allegations concern violation of her First Amendment rights of freedom of association and free speech. The summary dismissal of this matter is erroneous as a matter of law and should be reversed for a hearing on the merits.