Speech Claim Is Dismissed in Lawsuit Against Town

, New York Law Journal

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Holding that "the First Amendment does not afford a plaintiff the right to run a political campaign that is free from public criticism," an appellate panel in Rochester has dismissed a defamation action filed by an upstate constable over a letter to the editor written by his boss.

But while the Appellate Division, Fourth Department, threw out Craig Schultz's defamation claim, it allowed his claims for constructive discharge and violation of his constitutional due process rights to proceed in Schultz v. Town of Wheatfield and Zastrow, 13-01046.

Schultz is suing the town of Wheatfield in Niagara County, alleging that he was demoted from the rank of sergeant and constructively discharged because of his unsuccessful bids for election to the town Republican Committee in 2010 and the town board in 2011. He had also claimed that the town's chief constable, Robin Zastrow, libeled him in a letter published in the Buffalo News.

In an unsigned memorandum, the Fourth Department agreed with Supreme Court Justice Catherine Nugent Panepinto that the case for constructive discharge and due process violations should proceed.

It rejected the town's argument that Schultz could not have been demoted from the rank of sergeant because no such position ever existed, and said it is an open question whether the defendants "retaliated against plaintiff because of his political activities by eliminating his assignments and failing to schedule him for work, all without notice or a hearing pursuant to Civil Service Law."

But the justices said Panepinto should have dismissed the First Amendment claim.

On the panel were justices Nancy Smith, Eugene Fahey, Edward Carni, Joseph Valentino and Gerald Whalen. David Polak of West Seneca represents the plaintiff.

The town is represented by James Cosgriff III of Petrone & Petrone in Williamsville.

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