Tenth Circuit: In Order for Employees to Prevail on Freedom of Association Claims They Must Show that the Association Related to a Matter of Public Concern

On July 25, 2011, the Tenth Circuit Court of Appeals, the federal appellate court having jurisdiction over federal cases in Utah, decided an issue that had yet to be decided by that court—whether an employee claiming a violation of his or her right to association was required to show that the association involved an issue of public concern.  The court ruled that there must be a public concern showing.

In Merrifield v. Board of County Commissioners, a former Youth Services Administater in the Santa Fe County Youth Development Program claimed, among other things, that he was given the harsh discipline of termination because the County Commissioners were angry that he had hired an attorney to defend himself in his disciplinary hearing.  He therefore claimed that his First Amendment freedom of association had been violated.  In response, the County claimed that the administrator’s claim was not valid because he had not shown that the association was centered around a matter of public concern.  Instead, the County claimed, it was an association related to a private employment matter.  The administrator claimed that to assert a freedom of association claim no relationship to a matter of public concern was necessary.  He additionally argued that, even if such a relationship was required, his concern was a matter of public concern because “the attorney-client relationship categorically qualifies as a matter of public concern.”

The Court, acknowledging that it had never decided the issue and that other federal circuit appeal courts disagreed about the issue, decided that in freedom of association cases involving associating “for the purpose of engaging in speech, assembly, or petitioning for redress of grievances” the issue around which the association is concerned must be “‘a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.'”  In making this decision, it left open the question whether the matter of public concern element would be required in questions of association related to “intimate human interactions” or “free exercise of religion.”  The Court rejected the administator’s contention that his case was a matter of public concern, holding that if the attorney-client relationship were an issue of public concern in this circumstance, all employee grievances would be turned into constitutional claims.