Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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MATRISCIANO v. RANDLE (June 26, 2009)

Ron Matrisciano worked for the Illinois Department of Corrections (IDOC) for over 20 years. By 2002, he had risen to the level of Assistant Deputy Director. Over the course of his employment with IDOC, he had become acquainted with a particularly notorious inmate, Harry Aleman. Aleman was serving a 100-300 year sentence for murder. Ten years into his sentence, when Aleman was about to be afforded a parole board hearing, his family asked Matrisciano if he would speak at the hearing. Matrisciano advised his superiors that he planned to testify at a parole board hearing, although he apparently did not advise them that Aleman was the subject of the hearing. Matrisciano took a personal day on the day of the hearing and testified in favor of Aleman's release. The fact that a relatively senior official of IDOC testified in favor of the release of a particularly notorious inmate generated significant media inquiry. IDOC officials reassigned Matrisciano to a new position within the department. Matrisciano filed suit, alleging that the transfer violated his First Amendment rights. The district court granted summary judgment against Matrisciano. Matrisciano appeals.

In their opinion, Judges Ripple, Williams and Sykes affirmed. The Court addressed the issue in the context of qualified immunity. The defendant government officials are entitled to qualified immunity if their conduct did not violate "clearly established" constitutional rights of which a reasonable person would be aware. The Court noted the Supreme Court's recent retreat from the mandatory two-step sequence of Saucier and used its discretion to address the "clearly established" prong first. The elements of a case of First Amendment retaliation are constitutionally protected speech, a deprivation likely to deter speech, and speech being a motivating factor for the adverse action. The defendants did not contest the second element and the Court easily found sufficient evidence of the third element on which a jury could rely. Therefore, the Court addressed whether the speech was constitutionally protected. First, the Court found or assumed that Matrisciano was speaking as a "citizen" and was speaking on a matter of public concern. The Court next rejected the "policy-maker" exception, under which a policy-making employee may be discharged for engaging in speech that is critical of his superiors or their policies. Although the Court found that Matrisciano was a policy-making employee, it found that his speech was too remote from the policies of the department to trigger the exception. Finally, the court moved to the Pickering balancing of the speech interests of the employee and the public service interests of the employer. Under that balancing, the Court considered several factors: whether the speech would create discipline problems, whether the employee’s position is one in which loyalty and competence are necessary, whether the speech affected the employee’s ability to perform, the time and place and manner and context of the speech, whether the subject of the speech was vital, and whether the speaker would be considered a member of the general public. In engaging in that balancing, the Court identified a number of factors on each side of the analysis: on the one hand, there was no policy prohibiting the testimony, Matrisciano advised and got permission for the testimony, IDOC employees frequently have relevant information helpful for parole determinations – on the other hand, Matrisciano had only minimal contact with the prisoner, Matrisciano was a high ranking employee, Matrisciano spoke voluntarily, and Matrisciano testified beyond his personal observations and actually requested the prisoner's release. Having found considerations on both sides of the equation, the Court was not inclined to decide whether Matrisciano's First Amendment rights were violated. Having decided that, it was not difficult to conclude that the law was such that reasonable officials would not know that their transfer of Matrisciano was unlawful. The defendants were entitled to qualified immunity.