Divided 10th Circuit panel gives inadequate First Amendment protection to employee demoted for truthful sworn court testimony

  The 10th Circuit rejected the First Amendment claim of a public employee who was demoted after giving sworn testimony in a judicial proceeding involving a domestic child custody dispute between his sister-in-law and a fellow public employee. The decision gives inadequate protection to public employees who testify in court and creates a circuit split that may require ultimate review by the U.S. Supreme Court.

  Jerud Butler works as a supervisor for the San Miguel County (Colorado) Road and Bridge Department. He suffered a demotion after he testified in a court proceeding involving his sister-in-law and her ex-husband, who also works for the San Miguel County Road and Bridge Department. Two of Butler’s work superiors investigated his court testimony and gave him a written reprimand and demotion.

  Butler then sued the two county directors who demoted him, alleging he was retaliated against for his First Amendment-protected speech. A federal district court dismissed his lawsuit, reasoning that his court testimony did not address a matter of public concern — defined generally as speech that relates to any matter of political, social, or other concern to the community.

  Butler appealed the decision, but a divided three-judge panel of the 10th U.S. Circuit Court of Appeals affirmed its March 29, 2019 decision in Butler v. Board of County Commissioners for San Miguel County. Butler argued that the district court failed to faithfully apply the U.S. Supreme Court’s decision Lane v. Franks (2014). In that decision, the court held that Alabama college officials violated the First Amendment rights of a public employee who testified about financial malfeasance of a former college employee.

  However, the 10th Circuit majority distinguished Butler’s case from Lane, reasoning that Butler merely served as a character witness for his sister-in-law, speech that deals with a “purely personal dispute.” Butler argued that his speech certainly touched on a matter of public concern because the state of Colorado has a strong interest in the welfare of children and the fair resolution of child custody matters. The 10th Circuit rejected that argument, writing that “[t]here is no indication that this testimony was of interest or concern to the community at large.”

  The majority concluded that “Butler’s specific testimony as a character witness for his sister-in-law during a child custody hearing was not a matter of public concern.”

  Judge Carlos F. Lucero dissented. “It is difficult for me to accept the proposition that society’s concern in the custody of a child can be as personal as the majority pronounces,” he wrote. “To be sure, participants in the proceeding may have personal concerns regarding the custody of a child, but the overarching public interest in the well-being of children cannot be so easily ignored.”

  Judge Lucero pointed out that the Supreme Court in Lane emphasized the importance of “sworn testimony in a judicial proceeding…Integrity of our judicial process depends on witness’ willingness to provide truthful testimony,” he wrote.

  Judge Lucero has the better view. Sworn testimony in a judicial proceeding should be presumed to be speech on a matter of public concern. Furthermore, it is simply grossly unfair and an abuse of power to demote a public employee because he gives testimony in a court case.

  The majority’s misguided decision conflicts with other decisions in other circuits.

  Hopefully, this unjust decision will be reviewed either by the 10th Circuit en banc or the U.S. Supreme Court. Public employees who testify in court proceedings deserve better than the fate suffered by Jerud Butler.

  About the author: David L. Hudson Jr., a visiting associate professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Documents Decoded: Freedom of Speech” (ABC-CLIO, 2017).

  This article was published by the Freedom Forum Institute.