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A judge’s decision to fire a law clerk who accused him of corruption does not violate the First Amendment, the 2nd U.S. Circuit Court of Appeals has ruled. Finding that the “potential disruptiveness” to the chambers of former Queens, N.Y., Supreme Court Justice Leon Beerman “outweighed whatever value there was” in the speech of clerk Brian Sheppard, the court upheld a grant of summary judgment for the judge. It was the third time in nine years the 2nd Circuit has ruled in Sheppard v. Beerman, 02-7292. Sheppard, now in private practice in New Hyde Park, N.Y., served as Beerman’s clerk from 1986 until December of 1990, when the two men fought over a speedy trial motion in a murder case. On Dec. 7, Sheppard told the judge he refused to work on the motion because he believed the judge was “railroading” one of the defendants. The judge told him to consider looking for a new job. Sheppard responded by calling the judge a “corrupt son of a bitch,” adding that he had preserved a file on alleged misconduct by the judge during the previous four years. When Sheppard threatened to go public with the information if the judge fired him, the judge told him he was “disturbed” and “disloyal.” Beerman later met with Administrative Judge Alfred Lerner and resolved to fire Sheppard. After being fired on Dec. 11, Sheppard waited a few months and then filed a civil rights suit in the Eastern District of New York under 42 U.S.C. � 1983, claiming his termination violated his First and 14th Amendment rights. Although judgment on the pleadings was granted in favor of Judge Beerman by Eastern District Judge I. Leo Glasser, Sheppard’s First Amendment claim was reinstated by the 2nd Circuit. On remand, Beerman again prevailed on the pleadings, with Judge Glasser finding he was entitled to qualified immunity. The 2nd Circuit reversed, ruling Sheppard was entitled to discovery to support his claim that his firing was driven by an unconstitutional motive. After discovery involving more than 30 witnesses, Glasser granted summary judgment for Beerman, finding that “no reasonable juror could infer” Sheppard’s firing “resulted from an unlawful desire to curb speech on a matter of public concern rather than a legitimate desire by Judge Beerman to maintain the efficiency, discipline and harmony of his public office.” OUTBURST ‘DISRESPECTFUL’ This time, the 2nd Circuit agreed. Senior Judge Joseph M. McLaughlin wrote that “Sheppard’s outburst was grossly disrespectful and an expression of contempt for Judge Beerman.” McLaughlin also said that “[g]iven the nature of the judge-clerk relationship, Judge Beerman’s prediction” that it “would disrupt the efficient operation of chambers was eminently reasonable.” “Sheppard’s use of the word ‘corrupt’ and his several references to Beerman’s alleged misconduct during his invective are not of sufficient import to outweigh the potential disruption his outburst caused,” McLaughlin said. And with “exhaustive discovery” having been conducted, the judge said, “Sheppard has been unable to produce an iota of evidence that Judge Beerman terminated him to prevent him from speaking about Beerman’s alleged misconduct.” Judge McLaughlin approvingly quoted Glasser’s observation that rather than an attempt to suppress speech or retaliate, Beerman’s termination of Sheppard was actually “akin to an invitation to speak.” Senior Judge Ralph K. Winter and Judge Jose A. Cabranes joined in the 2nd Circuit opinion. Sheppard represented himself. Assistant Attorney General Michael B. Siller and Deputy Solicitor General Michael S. Belohlavek represented Judge Beerman, who retired from the Queens Supreme Court at the end of 1992.

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