Montgomery County Courthouse in Norristown, Pennsylvania. Photo: Douglas Muth/Wikimedia Commons

Montgomery County is seeking to dismiss lawsuits brought by two former heads of its Public Defender's Office, arguing it was within its rights to fire the officials over a contentious amicus brief that was highly critical of the county court system's bail practices.

Last week, the county filed motions to dismiss the cases Beer v. Montgomery County and Hudson v. Montgomery County. The motions contended that former Chief Public Defender Dean Beer and former Deputy Chief Public Defender Keisha Hudson, who were both fired in late February, did not engage in protected speech when filing the amicus brief, and that the entity is immune from liability under the Pennsylvania Political Subdivision Tort Claims Act.

The two sued the county in March on First Amendment retaliation and whistleblower claims, arguing they were wrongly retaliated against for exposing allegedly unlawful bail practices. But, in the motions to dismiss, filed by Brown McGarry Nimeroff attorney Raymond McGarry, the county argued the plaintiffs were acting on behalf of the office and therefore not entitled to free speech protections.

Specifically, the defendant argued that the chief of the appeals unit helped prepare the controversial amicus brief, the plaintiffs weren't signatories, and the information in the brief was acquired through their experience on the job.

"Plaintiff has no standing to seek the protections of the First Amendment for speech that factually is not even his speech," the county said in the motion to dismiss Beer's case, which was filed May 21. "The brief was undeniably prepared for, and submitted by, the OPD for the benefit of its indigent clients. As such, under no circumstances could the brief constitute 'citizen speech.'"

The dispute can be traced back to the lawsuit the Philadelphia Bail Fund filed in March 2019 against the First Judicial District, which challenged the court's cash-bail practices. In July, the Pennsylvania Supreme Court took up the case under its King's Bench jurisdiction, and ordered an inquiry into the potentially problematic cash-bail practices.

After a senior judge reviewing the case issued a report saying that the court's procedures were "fundamentally sound," but could be improved, several organizations filed amicus briefs with input.

In his complaint, Beer said he and Lee Awbrey, the office's chief appeals officer, prepared an amicus brief for the case, which he emailed to Montgomery County's chief operating officer, Lee Soltysiak, and Josh Stein, the county's solicitor, Feb. 2. The same day, Beer filed the amicus.

The brief was critical of of bail practices in Montgomery County, including saying that defendants' ability to afford bail was often not taken into consideration and that other times bail hearings were conducted without counsel being present for the defendants.

According to both Beer and Hudson's complaints, Soltysiak emailed Beer saying he did not think the brief was appropriate and that Beer should retract it. The complaints further said Montgomery County Court of Common Pleas Judge Thomas Del Ricci also called Beer into his office, where the judge was allegedly "visibly upset, as he held a copy of the amicus brief." The complaints alleged that Del Ricci told Beer he believed the brief was inaccurate and that, if he did not withdraw it, he would no longer support a proposed pretrial program Beer had advocated for and would not request the more than $1 million needed to start the program.

Several days later, Beer told Del Ricci he would withdraw the brief, but then, according to the complaints, Del Ricci asked Beer to publicly state that the brief was wrong, and to apologize to the judge personally. Del Ricci also threatened to file a disciplinary complaint against Beer, the complaints said.

The brief was formally withdrawn Feb. 12, but both Beer and Hudson were fired Feb. 26.

Along with arguing that the speech could not be protected since it was filed on behalf of the organization, the county argued that the amicus brief did not fit the definition of a report under the Whistleblower Act and further that the brief wasn't making known any wrongdoing by the county, but rather was critical of court procedures, which the county does not control.

The county also claimed it could fire the two, since they were at-will employees, and the firing did not fit any of the specific public policy exceptions.

"Plaintiff fails to identify with any specificity the alleged commonwealth policy regarding independence of public defenders' offices and how her termination violated such policy," the county said in the motion to dismiss Hudson's claims, which was filed May 18. "Simply stated, plaintiff has not alleged any commonwealth public policy sufficient to give rise to a valid wrongful discharge claim."

Greenblatt, Pierce, Funt & Flores attorneys Patricia Pierce and Noah Cohen are representing Beer. In an emailed statement, Cohen said, "We strongly disagree with the county's legal analysis and we will be responding with our own brief by June 15."

David Rudovsky of Kairys, Rudovsky, Messing, Feinberg & Lin, who is representing Hudson, offered similar comments, saying in an email, "We strongly disagree with the county's legal arguments and we will be filing our brief that sets forth the arguments supporting our claims in accord with the court's schedule for briefing."