Retaliation Claims May Hook Illinois Prosecutor

CHICAGO (CN) - An Illinois state's attorney may have retaliated by firing the assistant prosecutor who testified against him to a grand jury, the 7th Circuit ruled.

Kirk Chrzanowski was an assistant state's attorney for McHenry County from January 2006 until his firing in December 2011.

Chrzanowski claims McHenry County State's Attorney Louis Bianchi fired him after Chrzanowski testified against him before a grand jury and in trial. Bianchi was being investigated on whether he improperly influenced the handling of cases involving political allies and relatives. After his ouster, Chrzanowski sued Bianchi and Michael Combs, another prosecutor, claiming violation of his First Amendment rights.

The defendants argued successfully in District Court that First Amendment protections do not apply to Chrzanowski's testimony because his statements were given "pursuant to [his] official duties" as a public employee.

The Rockford-based court further ruled that the defendants were alternatively entitled to qualified immunity because any First Amendment protections that might have been attached to the testimony were not clearly established at the time.

A three-judge panel of the 7th Circuit reversed Friday, finding that Chrzanowski may have valid First Amendment wrongful termination claims.

"To be sure, Chrzanowski was called as a witness to discuss his employment with the McHenry County State's Attorney's Office, and his testimony focused exclusively on 'allegation[s] that ... Bianchi had improperly influenced and/or arranged a negotiated plea in a case for which [Chrzanowski] was principally responsible,'" Judge Diane Wood wrote for the court.

Citing various precedent, Wood added that "the fact that his testimony 'concern[ed] the subject matter of [his] employment' does not mean that Chrzanowski's speech 'owe[d] its existence' to his official responsibilities. ... His speech was no different from that of a schoolteacher who writes a newspaper editorial criticizing the School Board and superintendant, or of an assistant district attorney who speaks with her co-workers about potential corruption within the District Attorney's office."

"Like Chrzanowski, the plaintiffs in both of these cases were disciplined for sharing information learned and opinions formed in the course of their public employment," the decision continues. "Chrzanowski worked in the criminal justice system and his speech occurred in the course of judicial proceedings. Nonetheless, when he spoke out about potential or actual wrongdoing on the part of his supervisors, he too was speaking 'outside the duties of employment.'"

Bianchi and Combs furthermore are not entitled to qualified immunity because it was clearly established that Chrzanowski's testimony was not part of his job responsibilities, the court found.

"Our opinion in Morales v. Jones has much greater bearing on this case," Wood wrote. "There, a Milwaukee police officer alleged that he was transferred to night-shift patrol duty after being deposed pursuant to a subpoena in a civil suit brought by a fellow officer against the chief of police. We concluded that 'being deposed in a civil suit pursuant to a subpoena was unquestionably not one of Morales' job duties because it was not part of what he was employed to do.' Like Chrzanowski, Morales undoubtedly had a professional obligation (not to mention a personal obligation) to comply with the subpoena, but this did not somehow convert his deposition testimony into speech 'made pursuant to official duties.' Defendants point out that Morales involved testimony in the civil context, whereas this case involves testimony in criminal proceedings, but this is a distinction without a difference: providing eyewitness testimony regarding potential wrongdoing, civil or criminal, was never 'part of what [Chrzanowski] was employed to do.' Chrzanowski's rights were clearly established at all relevant times." (Parentheses in original.)

Chief Judge Frank Easterbrook and Judge Joel Flaum concurred with Wood.

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