The Volokh Conspiracy
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Did DA's Office Retaliate Against Prosecutor, When She Was Serving as Juror, for Voting to Acquit Defendant?
That's the issue in Hagan v. Funk, decided last Monday by Chief Judge William L. Campbell, Jr. (M.D. Tenn.); here are the allegations from the Complaint:
Plaintiff was employed as a prosecutor for the Office of the District Attorney General of the 20th Judicial District of Tennessee ("DA's Office") when she received a jury summons. The DA's Office has an employee manual with a policy governing jury duty. The policy states:
Jury service is a responsibility of good citizenship, and all employees are expected to honor subpoenas for jury duty in any court. It is the office policy that employees serve rather than seek to be excused or exempted. Jury service is both a privilege and an obligation. Our court system is founded upon the right to a jury trial, and all citizens should participate in order to insure [sic] that this right is meaningful. Because jury service requires sacrifice, many citizens try to avoid this obligation. Our office should set a good example by our willingness to serve, and we should be positive about our justice system and encourage all citizens to take part.
Every employee is to notify their respective supervisor immediately upon the receipt of a jury notice so that arrangements can be made to cover the employee's office assignments. Attorneys should also bring the matter to the attention of the judge of their court where appropriate. On each day at the conclusion of jury service, the employee shall return to work at the office, unless it is after office hours. All jury fees belong to the employee and will not affect an employee's pay.
Upon receiving the jury summons, Plaintiff notified her supervisor as well as Defendant. Plaintiff appeared for jury service on July 15, 2024, for the case State of Tennessee v. Karlos Reynolds, 2023-B-1023. Plaintiff was juror number nine. Based on this number, she would presumptively serve on the jury unless either the Court removed her for cause or one of the parties used a peremptory challenge to remove her.
During voir dire, the trial court judge identified Plaintiff as "a lawyer in the court system" and Plaintiff stated that she knew "everyone here." During specific questioning by the prosecutor, Plaintiff stated, "I am employed as an Assistant District Attorney. So you all are my colleagues." Following voir dire, the prosecutor stated that Plaintiff should be struck for cause because she "works for Glenn Funk." Judge Chappell ruled that Plaintiff should remain on the jury because "she said she could be fair, and I don't think simply her employment with the Prosecutor's Office makes her unfit."
Each side used only two of its nine allotted peremptory strikes; none of the strikes was used to remove Plaintiff. Plaintiff then served as a member of the jury where she was selected as foreperson. The jury deliberated for less than one hour before returning a not guilty verdict on all counts.
Later that week, Plaintiff met with Defendant and two Deputy District Attorneys. Defendant berated Plaintiff for her jury service, expressed outrage that she was foreperson, and accused her of being unethical. Defendant specifically took issue with the jury's returning a verdict of "not guilty," stating that the "not guilty" verdict could strain her relationship with law enforcement officers at the Metro Nashville Police Department. Defendant told Plaintiff that she could not work as an attorney and needed to be "on leave." On Monday, July 22, 2024, Plaintiff was formally placed on leave and told not to come to the office….
Plaintiff claims Defendant demoted her, reassigned her to non-attorney work, removed her from courtroom work, placed her on leave, and berated her in front of her superiors and colleagues in retaliation for her for serving on a jury and for voting "not guilty" during her jury service….
The court allowed plaintiff's First Amendment claim to go forward, though note that the court just held that plaintiff had adequately pled the claim—the actual facts remain to be determined:
"Generally, the First Amendment protects a public employee's speech if: (1) the speech was on a matter of public concern, Connick v. Myers (1983); (2) the speech was not made pursuant to the employee's official duties, Garcetti v. Ceballos (2006); and, assuming the employee can satisfy the first two elements, (3) the employee's interest in speaking on a matter of public concern outweighs the employer's interest 'in promoting the efficiency of the public services it performs through its employees,' Pickering v. Bd. of Educ. (1968)."
Plaintiff claims Defendant retaliated against her based on her speech as a prospective juror during voir dire and as a juror in rendering a verdict of guilty in a criminal case for which her employer was the prosecutor. Defendant concedes that "an ADA is entitled to First Amendment protection in answering questions as a public employee empaneled in a jury pool and as a juror rendering a verdict." He argues, however, that Plaintiff's speech during her jury service was not protected speech because her interest in speaking does not outweigh Defendant's interest in managing its offices to ensure its "employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission."
Defendant's argument encompasses the second and third prongs of the test for protected speech. First, Defendant asserts that Plaintiff's speech in court as a private citizen summoned for jury duty was an "official communication" by an employee of the District Attorney's office. Even if there were a reasoned basis for this assertion (and the Court can think of none), a determination that Plaintiff's speech in connection with her jury service was pursuant to her official duties as an employee of the District Attorney's office would require the Court to construe the allegations in the complaint in a light most favorable to the Defendant, which is plainly not the standard on a motion to dismiss. Moreover, in making this assertion, Defendant fails to address the fact specific inquiry for determining whether speech is spoken as a private citizen or as an employee.
Defendant's next argument is that Plaintiff's interests in speaking on the matter of her juror qualifications and rendering a verdict do not outweigh the interests of the District Attorney's office in promoting the legal and ethical conduct of its employees. This argument is also inappropriate on a motion to dismiss. Not only would it require the Court to construe the allegations in the Complaint in a light favorable to the Defendant, consideration of Defendant's asserted interests in limiting employee speech on these matters necessitates factual determinations and considerations of matters outside the pleadings not appropriate at this stage in the litigation.
Perhaps recognizing that a motion to dismiss is not the proper vehicle for the Court to weigh the relative speech interests of the employer and employee, Defendant asks the Court to find as a matter of law that "an ADA is not protected by the First Amendment from her employer's scrutiny for failing to inform the court of the inherent conflict of interest created by her jury service when called to jury service in a criminal proceeding in the county in which she has sworn an oath of office to be an ADA." In support, Defendant points to the following authority: (1) Tennessee Rules of Professional Conduct concerning conflicts of interest with regard to representation of clients and disruption of a tribunal (T.R.P.C. 1.7(a)(2) and 3.5); (2) a decision from the Tennessee Court of Criminal Appeals which has since been overruled regarding disqualification of government attorneys in criminal matters (State v. Grooms, 2020 WL 9171956, at (Tenn. Ct. App. Nov. 25, 2020), overruled by State v. Eady, 685 S.W.3d 689 (Tenn. 2024)); and (3) Justice [O'Connor's] concurring opinion in Smith v. Phillips, 455 U.S. 209, 222 (1982), suggesting that if it is revealed post-trial that a juror is "an actual employee of the prosecuting agency" the Sixth Amendment right to an impartial jury would not allow a verdict to stand.
The Court declines to make such sweeping pronouncement concerning the relative speech interests of all district attorney employers vis-à-vis all assistant district attorneys in their employ. Not only is such a ruling not directly supported by the cited authority, as stated above, balancing these interests in the specific context of this case is not appropriate at the motion to dismiss stage, and making these fact specific determinations as to district attorneys and their employees writ large is unlikely ever to be appropriate.
{Throughout the motion to dismiss, Defendant either ignores or mischaracterizes the allegations in the complaint as stating that Plaintiff failed to notify the state trial court of her "conflict of interest" before serving on the jury when the complaint and trial transcript of the criminal court proceeding which is attached to the complaint clearly state that Plaintiff informed the trial court of her employment and that the trial judge considered whether it would be appropriate for Plaintiff to serve as a juror. This approach by Defendant is troubling, to say the least.} …
And the court also allowed plaintiff's claim to go forward for violation of Tenn. Code Ann. § 22-4-106(d), which provides, in relevant part:
(1) No employer shall discharge or in any manner discriminate against an employee for serving on jury duty if the employee, prior to taking time off, gives the required notice pursuant to subsection (a).
(2)(A) Any employee who is discharged, demoted or suspended because the employee has taken time off to serve on jury duty is entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer….
Plaintiff is represented by Christopher W. Smith, David Randolph Smith, and Dominick Randolph Smith of David Randolph Smith & Associates.
