Lawsuit against public defender seems near an end

PHILADELPHIA » The last remaining defendant in a 2013 civil rights suit against Delaware County and numerous public officials has been granted leave to file a motion to dismiss following a June order and opinion from the Third Circuit Court of Appeals.

The motion filed Wednesday on behalf of Delaware County Public Defender’s Office Director Douglas C. Roger indicates the appeals court urged U.S. District Judge Cynthia M. Rufe, of the Eastern District of Pennsylvania, to consider the “values of judicial economy, convenience, fairness and comity” in deciding whether to retain jurisdiction over a whistleblower claim brought by former public defender Joseph E. De Ritis.

De Ritis alleged in his October 2013 lawsuit that he was fired by Roger for failing to press his clients into plea deals rather than going to trial. The suit also named the county, former Delaware County Common Pleas Court President Judge Chad F. Kenney, Solicitor Michael Maddren, and county council members Mario Civera, Colleen Morrone, David White, John McBlain and former Chairman Thomas McGarrigle as defendants.

De Ritis, who joined the public defender’s office in 2005, claims he was downgraded from a trial team to juvenile court in June 2012. He allegedly heard rumors shortly thereafter that Kenney did not think he was moving his cases along fast enough. De Ritis took this to mean that Kenney thought he was too often taking his clients to trial rather than accepting plea offers from the District Attorney’s office, according to the complaint.

Roger fired De Ritis after a May 2013 meeting in which De Ritis admitted to repeating this rumor to many district judges and attorneys, as well as Maddren and McGarrigle.

The lawsuit and many months of legal wrangling followed as the defendants were whittled away. All of the claims against Kenney except conspiracy were dismissed in June 2014 and all defendants except Roger and Kenney were removed in October 2014. Kenney was removed in February 2016 after winning summary judgment on the conspiracy claim.

Roger and De Ritis both moved for summary judgment last year on civil conspiracy, First Amendment retaliation, wrongful discharge and Pennsylvania Whistleblower Law claims.

Rufe granted Roger summary judgment on the civil conspiracy and wrongful discharge claims in February 2016, finding De Ritis did not offer any evidence that Kenney was worried about the pace of the docket or that Roger concern.

But she did not grant either man summary judgment on the First Amendment or whistleblower claims.

Roger argued De Ritis was lawfully fired because his speech was not a matter of public concern and that the speech was false, which Roger contended is not constitutionally protected.

Rufe noted in her February 2016 order that De Ritis and the general public have a significant interest in exposing or investigating alleged government impropriety, however, and that even false speech is protected unless it is knowingly or recklessly false.

There was no evidence De Ritis did not believe his comments were true, according to the order, but there was evidence that his termination resulted from his making those comments.

Rufe also found that factual questions still remained as to whether De Ritis made a good-faith report of the alleged impropriety or if it was based on mere conjecture.

The District Court additionally rejected Roger’s argument that he was immune from liability as a government official, since that protection does not extend to violations of clearly established constitutional rights.

But Roger appealed the immunity issue to the Third Circuit Court of Appeals, acted on that which reversed the district court’s denial of qualified immunity June 27 and remanded the case for further proceedings consistent with that opinion.

The appeals court found De Ritis was a representative of the Public Defender’s office when he spoke to other attorneys and judges about his grievances, and that even idle chatter made while waiting for court to begin or end is not “citizen speech” protected by the First Amendment.

His conversations with Maddren and McGarrigle are a different matter, according to the opinion. In both of those instances, De Ritis allegedly expressed concern for the rights of his clients.

However, he still sought intervention only with respect to his own employment situation in those discussions, rather than the rights of the clients of the Public Defender’s office generally, which the court found showed “self-interest, not public spirit.”

De Ritis also waited six to eight months before approaching either Maddren or McGarrigle, according to the opinion. This “prolonged failure to authenticate (his) allegations … approaches reckless indifference to their veracity,” the appeals court found.

The Third Circuit additionally found De Ritis’s interest in disseminating fourth-person hearsay gleaned from after-work gossip paled in comparison to the potential disruption it could have caused to the Public Defender’s office.

“Whatever First Amendment value De Ritis’s statements had, those statements gave Roger adequate justification to treat him differently from a member of the public,” the opinion says. “For that reason, we conclude … that De Ritis’s speech was not protected, putting a hard stop to his First Amendment claim against Roger and entitling Roger to qualified immunity for his decision to fire De Ritis.”

The whistleblower claim was not appealed or addressed directly in the opinion, but a footnote urged Rufe to consider whether it also warranted dismissal without prejudice.

Roger has 10 days to file his motion for dismissal based on lack of jurisdiction.