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A New Jersey county prosecutor was justified in firing an assistant prosecutor who met behind his back with a judge about problems caused by the prosecutor’s no-plea-bargain policy, the 3rd U.S. Circuit Court of Appeals ruled on June 26. The court, in Johnson v. Yurick, 01-3598, affirmed a grant of summary judgment to Andrew Yurick II, who as Gloucester County prosecutor forced the resignation of his first assistant, Keith Johnson, in August 1998. The stated reason for his action was Johnson’s December 1997 meeting with Judge Joseph Lisa, the vicinage’s presiding criminal judge, to discuss ways of alleviating a backlog in criminal cases. Lisa had been openly critical of Yurick’s tough plea-bargain policy, which he blamed for increasing judicial caseloads and trial delays. The meeting led to the drafting of a plea proposal that conflicted with Yurick’s approach. Johnson sued Yurick and the county in 1998, claiming infringement of his free-speech rights under the federal and state constitutions. Judge Theodore McKee wrote that “Yurick’s interest in an efficient workplace outweighed Johnson’s free speech rights” under the balancing test of Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983). The appeals court found that Johnson’s conversation with Lisa was about a matter of public concern, since the court backlog “presumably affected the speedy trial rights of criminal defendants, and had implications for the operation of the judicial system as well as for how tax dollars were being spent.” But “Yurick’s interest in maintaining the effectiveness of the Prosecutor’s office by disciplining insubordinate employees outweighs Johnson’s interest in commenting upon matters of public concern,” the court held. The court identified Johnson’s “hierarchical proximity” to Yurick as “a crucial variant in the balance.” As first assistant prosecutor, Johnson occupied a confidential and policy-making role that obligated him to follow Yurick’s directives and required that Yurick be able to rely on him to do so. Johnson’s clandestine conference with Lisa conflicted with his role as Yurick’s deputy and “undermined their working relationship so substantially that Yurick was justified in firing him,” stated McKee. The court drew an analogy to its decision in Sprague v. Fitzpatrick, 546 F.2d 560 (1976), which upheld the Philadelphia district attorney’s firing of his first assistant for attacking his boss’ truthfulness in a newspaper interview. Even though Johnson’s words, unlike those in Sprague, were uttered in private, they were spoken to “Yurick’s chief critic” and subverted Yurick’s instructions on maintaining the plea policy. Johnson claimed that he told Yurick of the conversation about a week later, while Yurick maintained he was not informed of it for two or three months. Johnson, now an assistant Cumberland County prosecutor, did not return a call about the ruling, and his attorney, Harold Shapiro, a Vineland, N.J., solo practitioner, declines to comment. Yurick was appointed prosecutor by Gov. Christine Todd Whitman in 1997 and held the post until the end of January, when his five-year term expired. Sean Dalton, a former state assemblyman and municipal prosecutor in Glassboro and Paulsboro, was approved as Yurick’s successor in May. Yurick could not be reached for comment and his attorney, Jacqueline DeGregorio, a partner with Weiner Lesniak in Parsippany, did not return a call requesting comment. Michael Parlavecchio, an associate with Livingston, N.J.’s Genova, Burns & Vernoia, who represents the county, also did not return a call seeking comment. McKee was joined by 3rd Circuit Judge Maryanne Trump Barry and Arthur Alarcon, on loan from the 9th Circuit.

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