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Jerud Butler v. Board of County Commissioners for San Miguel County, et al.

Paid petition · United States Court of Appeals for the Tenth Circuit, No. 18-1012 · judgment March 29, 2019

Certiorari denied · December 9, 2019
Pre-decision estimate: 14% cert probability (95% interval 9%–21%)

Before the decision, about 3.3× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition).

Question presented

In Lane v. Franks, this Court held that “the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his ordinary job responsibilities.” 573 U.S. 228, 238 (2014). Lane reached that holding through a straightforward application of this Court’s precedent in Garcetti v. Ceballos, 547 U.S. 410, (2006) and Pickering v. Board of Education, 391 U.S. 563 (1968), which establish that a public employee’s speech falls within the ambit of the First Amendment’s protection if it is speech “as a citizen on a matter of public concern.” Lane, 573 U.S. at 237 (quoting Garcetti, 547 U.S. at 418). In the decision below, the Tenth Circuit held—in acknowledged conflict with the Third and Fifth Circuits—that a government employee is not entitled to First Amendment protection for truthful testimony provided in a child custody proceeding because that testimony is not speech “on a matter of public concern.” The question presented is: Whether a government employee’s truthful testimony at a judicial hearing qualifies as speech on a matter of public concern, such that it is entitled to protection under the First Amendment. (i)

Counsel of record

For petitioner
Neal Kumar Katyal
Milbank LLP

For respondent
Jeffrey Lynn Driscoll
Williams, Turner & Holmes, P.C.

Case

Conference history
Distributed for 1 conference

Amicus briefs
5 cert-stage

Proceedings

  1. Dec 09 2019
    Petition DENIED.
  2. Nov 20 2019
    DISTRIBUTED for Conference of 12/6/2019.
  3. Nov 20 2019
    Reply of petitioner Jerud Butler filed. (Distributed)
  4. Nov 04 2019
    Brief of respondents Board of County Commissioners for San Miguel County, et al. in opposition filed.
  5. Oct 03 2019
    Amicus brief of First Amendment Scholars not accepted for filing. (October 03, 2019 -- Corrected version to be submitted)
  6. Oct 03 2019
    Brief amicus curiae of First Amendment Clinic at Duke Law School filed.
  7. Oct 03 2019
    Brief amicus curiae of Government Accountability Project filed.
  8. Oct 03 2019
    Brief amici curiae of First Amendment Scholars filed.
  9. Oct 02 2019
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  10. Oct 01 2019
    Brief amicus curiae of National Whistleblower Center filed.
  11. Sep 27 2019
    Motion to extend the time to file a response is granted and the time is extended to and including November 4, 2019.
  12. Sep 20 2019
    Blanket Consent filed by Respondents, Board of County Commissioners for San Miguel County, et al.
  13. Sep 20 2019
    Motion to extend the time to file a response from October 3, 2019 to November 4, 2019, submitted to The Clerk.
  14. Sep 16 2019
    Blanket Consent filed by Petitioner, Jerud Butler.
  15. Sep 03 2019
    Petition for a writ of certiorari filed. (Response due October 3, 2019)