Friday, August 13, 2010

Wurzelbacker v. Jones-Kelley: Joe the Plumber Appeals Dismissal

On August 12, 2010, Joe the Plumber appealed dismissal of his lawsuit against Helen Jones-Kelley and others who had made politically motivated searches of his state records.

Helen Jones-Kelley (since terminated) was the Director of Ohio Department of Jobs and Family Services (ODJFS). Her codefendants were also ODJS officials. ODJFS is an Ohio mega-agency enforcing child and spousal support obligations, unemployment compensation, and regulating various businesses, such as child care operators. "Joe the Plumber" embarrassed candidate Barack Obama, resulting in public disclosure of Candidate Obama's "spread the wealth" socialist agenda. After that public humiliation, the defendants met, and Defendant Jones-Kelley authorized searches of the ODJFS databases looking for information to embarrass Joe the Plumber.

When her wrongful actions were disclosed (i.e., using state resources for partisan political activity), Democratic Governor Strickland accepted her resignation and the other defendants resigned or were fired.

Joe the Plumber brought suit for violations of his constitutional rights under color of state law. The federal suit apparently did not include state law claims such as intentional infliction of emotional distress, violation of privacy or other theories.

After the complaint and answer was filed, the defendants filed a motion for judgment on the pleadings. In essence, they argued that the complaint failed to state a claim that the court could recognize.

Judge Algernon Marbley dismissed the complaint on August 4, 2010. He said that although Joe the Plumber stated a claim that the defendants acted under color of state law, he did not state a claim that "the offending conduct [deprived] the plaintiff of rights secured by federal law."

As to the First amendment retaliation claim, the judge said, "Without allegations of a more specific and concrete nature as to the harms he suffered, Plaintiff does not meet the constitutional threshold required to state a claim for First Amendment retaliation."

On the Fourteenth Amendment privacy claim, the judge said, "While Plaintiff's allegations, if found to be true, may have been in violation of Plaintiff's privacy, they do not amount to a constitutional violation of privacy, and Plaintiff's interest at stake do not implicate a fundamental liberty interest." [Italics in original.] In the decision, the court noted that the Sixth Circuit differs from the other circuits on the extent to which privacy violations implicate constitutional violations.

A copy of the decision dismissing the complaint is here.

Unless the case gets settled somehow, I would not be surprised if this decision were reversed, either by the Sixth Circuit or by the United States Supreme Court. The conduct of the defendants was so egregious, it seems odd that a court would find no constitutional violation on these facts.

For me, I am disappointed that the complaint did not recite state law claims that seem even stronger than the constitutional claims. The state law claims probably have a statute of limitations of two years, which is fast approaching if not already past.

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