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County prosecutors’ mastery of their own domains just got another pilaster of support. A federal judge in New Jersey has ruled that a federal remedy is not available to a high-level assistant who was fired for criticizing his boss’s policies. U.S. District Court Judge Joseph Irenas granted summary judgment on Aug. 23, dismissing former First Assistant Gloucester County Prosecutor Keith Johnson’s wrongful termination suit. Johnson had charged violations of the First and 14th Amendments as well as state whistleblower claims. County Prosecutor Andrew Yurick fired Johnson amid a dispute over plea-bargaining policy, spurred by calls from the county’s top judge to decrease the rising backlog in criminal cases. Soon after taking office in January 1997, Yurick adopted a get-tough approach, requiring defendants to plead only to offenses charged in their indictments, not lesser offenses. As a result, fewer and fewer defendants were accepting plea offers. According to Yurick’s deposition testimony in Johnson v. Yurick, CIV-99-3864 (JEI), Johnson originally agreed with the get-tough policy, which eventually led to strained relations between assistant prosecutors and Assignment Judge Joseph Lisa. Irenas recounts that Johnson met with Lisa in December 1997, without informing Yurick, and began discussing ways to alleviate the criminal-case backlog. Johnson apparently had a change of heart and agreed with Lisa that, perhaps, the get-tough policy had backfired. In addition, he apparently agreed with Lisa’s assessment about low morale among the prosecutors and staff. Yurick, after finding out about the meeting several weeks later, was furious, according to deposition testimony cited by Irenas. In his complaint, Johnson charged that Yurick said that he had “screwed up” his plans to get a third judge assigned to the county’s criminal part. Yurick forbade Johnson from meeting with Lisa again. Yurick and Johnson agreed that their relationship spiraled downward afterward. Yurick said in his deposition that he had lost confidence in Johnson because of the meeting. In August 1998, Yurick gave Johnson the option of resigning rather than being fired, and Johnson tendered his resignation letter on Aug. 16 of that year. His wrongful termination lawsuit was filed a year later. PERMISSIBLE GAG ON SPEECH Irenas’ opinion centered largely on Johnson’s claims that Yurick violated his right to free speech by punishing him for talking to Lisa about what he believed to be a matter of public importance — the backlog created by Yurick’s plea-bargaining policy. Irenas cited Connick v. Myers, 461 U.S. 138 (1983), where the U.S. Supreme Court recognized that the First Amendment rights of public employees are more restricted than those of private citizens. He also cited Hall v. Ford, 856 F.2d 255 (D.C. Cir. 1988), which said that a public employee in a policymaking role has “substantially less” First Amendment protection than does a lower-level employee. In Hall, the Court said “[H]igh-level officials must be permitted to accomplish their organizational objectives through key deputies who are loyal, cooperative, willing to carry out their superiors’ policies, and perceived by the public as sharing their superiors’ aims.” Irenas said that while Johnson may have had legitimate concerns about the plea-bargaining policy, those concerns did not outweigh Yurick’s legitimate reasons for not tolerating dissent among his senior staff members. “[W]hile Plaintiff’s criticisms were not public … it is significant that they were made to Yurick’s chief opponent on the issue,” Irenas said. “Plaintiff was undoubtedly aware of the public and private sparring between Yurick and Judge Lisa on the plea bargaining policy. “Whether justifiably or not, Yurick felt Plaintiff was no longer a reliable deputy or assistant prosecutor,” Irenas wrote. “[T]he Court finds that Yurick’s legitimate interests in terminating the employment of a key deputy who disagreed with him on fundamental issues and whom he perceived had betrayed him outweigh the recognized public import of Plaintiff’s discussion with Judge Lisa.” As for Johnson’s due process claims, Irenas cited the Supreme Court’s rulings in Bishop v. Wood, 426 U.S. 341 (1976), and Board of Regents v. Roth, 408 U.S. 564 (1972), where the justices found that public employees with no statutory or contractual entitlement to their jobs have no property rights subject to 14th Amendment protections. Johnson also failed to establish a liberty interest claim under the 14th Amendment because he could not show any real stigma attached to the loss of his job. “Certainly, incidental to any loss of employment, friends and colleagues may ask questions about the circumstances, and rumors may abound,” Irenas said. “But, such idle chatter does not create a stigma of constitutional magnitude. …” Irenas refused to retain jurisdiction over any state claims Johnson may still pursue, but it is unlikely he would prevail should he proceed with the suit in state court. The state supreme court last year, in Golden v. County of Union, 165 N.J. 420, ruled that the governing statute, N.J.S.A. 2A:158-15, “unambiguously creates an at-will relationship between the prosecutor and all assistant prosecutors.” Johnson’s lawyer, Vineland, N.J., solo practitioner Harold Shapiro, declines to comment on Irenas’ ruling, other than to say an appeal to the 3rd U.S. Circuit Court of Appeals is being considered. Johnson, now an assistant prosecutor in Cumberland County, N.J., was away from his office and unavailable for comment. Yurick says he cannot comment on the ruling because of the possibility of an appeal and a state action.

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