WASHINGTON SUPREME COURT

The plaintiff was a captain in a municipal fire department. He and several other employees formed a Christian Fellowship. He created a listserve of about 45 firefighters whom he thought would be interested in the Fellowship’s activities. The plaintiff distributed the emails over the employer’s email system.

While the employer had a written policy limiting the email system to firefighter business, in practice personal use of the email system was permitted as long as it was linked to department business in some way. There was also an electronic bulletin board that reached all employees. There was no policy that limited the bulletin board and employees used it for personal business.

The plaintiff posted information about the Fellowship’s activities to both the listserve and the electronic bulletin board. His supervisors ordered him to stop posting communications about the Fellowship and use his personal email. The plaintiff refused and was ultimately terminated.

He first filed a civil service appeal arguing that his termination violated his constitutional rights of free speech and religion. The Commission ruled that there was no constitutional violation because the fire department excluded all religious speech and did not favor one religion. The plaintiff did not appeal the civil service ruling, which became final. He then filed suit in state court claiming violation of his right to free speech only.

The Superior Court granted the fire department’s motion for summary judgment on the ground of collateral estoppel. The Superior Court agreed there was no constitutional violation because the department prohibited all religious speech. Division III affirmed 2-1. The majority agreed with the Superior Court on the collateral estoppel issue. The concurrence reasoned that had the fire department allowed the plaintiff to continue to post his emails, there would have been an Establishment Clause violation. The dissent would have held that collateral estoppel did not apply and that the policy, as applied, was unconstitutional.

The Supreme Court reversed. Justice Wiggins wrote for a majority of five. Justice Yu wrote for four justices.

The Court was unanimous on the collateral estoppel issue. The Court held that the issues in the Civil Service Commission and in the civil action were not identical. The Court reasoned the issue the Commission decided was whether the plaintiff was terminated for cause within the meaning of RCW 41.08.090. The statute prohibits dismissal for political or religious reasons but does not address free speech. Second, the essence of the plaintiff’s claim was that he was dismissed for disobeying an unconstitutional order. Third, the Commission misperceived the plaintiff’s legal claims by focusing on whether other employees were allowed to post religious views.

In rejecting the collateral estoppel argument, the Court also considered the fact that civil service commissions do not have the institutional competence to decide constitutional questions. While the Commission did not decide the constitutional issue the plaintiff raised in court, the Justices suggested it would not have mattered if the Commission had done so. The Justices also noted the disparity between the remedies available in court and in the civil service process in denying collateral estoppel. Finally, public policy does not support giving agencies the ability to have the final word on constitutional questions.

The majority concluded that material facts related to the constitutional question were undisputed and evidenced an unwritten policy that prohibited religious speech on the listserve and the bulletin board. The majority characterized the listserve and bulletin board as nonpublic fora. The majority held that the plaintiff spoke as a citizen rather than within the scope of his duties as fire captain and that his emails addressed matters of public concern.

The majority held that while the written policy restricting the email system to fire department business was reasonable, the application of the policy to preclude religious speech where other non-business-related speech was permitted was illegal viewpoint discrimination. The Justices rejected the reasoning of the court of appeals concurrence that allowing the posting of the emails constituted an Establishment Clause violation. Here, the public never saw the postings.

WELA had submitted an amicus brief asking the Court to consider the potential of supervisor proselytizing to result in religious favoritism or harassment. The majority gave short shrift to those concerns saying those issues were not implicated by the case at issue, which involved a blanket policy against religious discussion. The majority noted that no employee had complained of harassment, a point that WELA argued was not dispositive to whether an employer has an affirmative obligation to prevent discrimination. The plaintiff had sent at least one email questioning the ability of believers and non-believer firefighters to associate. The majority dismissed that concern by stating there was no evidence that the emails had upset anyone.

The majority remanded the case for a determination whether the employer could prove the same action defense available under First Amendment law to defeat liability for violating the plaintiff’s constitutional rights. The majority strongly suggested that defense would not be available on the facts and the only issue would be damages.

Justice Yu would have remanded for a factual determination of the question whether the fire department had an unwritten policy of discriminating against religious viewpoints. These four Justices thus dissented on the scope of the remand. Justice Yu also disagreed with majority’s dismissal of the legitimacy of the concerns about allowing a supervisor to use government resources to promulgate his personal religious beliefs.

Sprague v. Spokane Valley Fire Dep’t, — Wn.2d —, 409 P.3d 160 (1/25/2018)