Metropolitan News-Enterprise


Tuesday, March 1, 2005


Page 1


U.S. Supreme Court to Rule on Prosecutor’s Retaliation Suit

Ninth Circuit Said Deputy District Attorney Ceballos Had Free Speech Right to Question Warrant Affidavit


From Staff and Wire Service Reports


The U.S. Supreme Court yesterday agreed to decide whether a deputy district attorney who claims he suffered retaliation after suggesting sheriff’s investigators might have lied to obtain a warrant may sue his superiors for violation of his civil rights.

The justices agreed to review a Ninth U.S. Circuit Court of Appeals ruling from March of last year allowing Deputy District Attorney Richard Ceballos to sue former District Attorney Gil Garcetti, Garcetti’s top deputy, and Deputy District Attorney Carol Najera.

The Ninth Circuit panel ruled that U.S. District Judge Howard A. Matz of the Central District of California erred in granting summary judgment in favor of Los Angeles County. Matz ruled the individual defendants had qualified immunity in the 42 U.S.C. Sec. 1983 action.

The judge also found that the county and Garcetti, in his official capacity, were immune from suit under the Eleventh Amendment.

Both rulings were incorrect, the appellate panel said.

Calendar Deputy

Ceballos claimed in his lawsuit that his supervisors retaliated against him after, as a calendar deputy in Pomona, he wrote a memorandum questioning a search warrant affidavit prepared by a deputy sheriff in a drug case and recommending the case be dismissed. Najera and Frank Sunstedt, then head deputy district attorney, first asked for changes in the memo—which Ceballos made—and then decided the prosecution should not be dropped, Ceballos alleged.

Ceballos advised the defendant’s attorneys of his conclusions and testified at a suppression hearing, but a judge allowed the prosecution to proceed. The deputy district attorney claimed he was then demoted to trial deputy and reassigned to handle misdemeanors in El Monte.

Ceballos was later assigned to the office’s Public Integrity Division.

Reinhardt Opinion

Judge Stephen Reinhardt, in his opinion for the Ninth Circuit, said that under the circuit’s 1988 decision in Roth v. Veterans’ Administration of the United States, 856 F.2d 1401, it is established law that a public employee who seeks to expose official misconduct is exercising a protected First Amendment right.

Noting that Roth  involved a Veterans’ Administration “troubleshooter” who was fired after exposing corruption in reports prepared as part of his official duties, Reinhardt declared:

“Nor do our cases provide any support for the defendants’ contention that a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.”

Since the right was clearly established, the defendants were entitled to qualified immunity only if they could show it was outweighed by the need to promote efficiency and avoid disruption in the workplace, Reinhardt said. They offered no evidence to establish that, he said.

Judge Diarmuid F. O’Scannlain, writing separately, agreed that reversal on the qualified immunity issue was required under Roth, but said that case was “wrongly decided and— ought to be overruled, perhaps even by our court’s rehearing the present case en banc.”

He explained:

“Indeed, with Roth as precedent and now Ceballos on the books, what federal or state employment-based decision can possibly evade intrusive federal constitutional review? Suppose that, instead of retaining private counsel as it has here, the County had provided its own staff attorney representation. Suppose further that the deputy county counsel assigned to defend this case had (just like the majority) quite mistakenly, but also quite sincerely, come to the conclusion that Ceballos indeed has a viable First Amendment retaliation claim and, consequently, went so far as to file a brief in this court not only agreeing with the claims made by Ceballos’s counsel, but providing additional arguments to support them. Could the County discipline its counsel without fear of being hauled into federal court to defend itself against allegations of having committed a constitutional violation?”

The concurring jurist continued:

“Evidently not—for as the majority makes pellucid today, Rot hand its progeny would enable such counsel plausibly to claim some personal stake in the message conveyed by that brief.”

O’Scannlain Reasoning

By holding that public employee whistleblowers are constitutionally protected from retaliation, O’Scannlain said, the Ninth Circuit was trying to “squeeze a policy-oriented square peg into a round constitutional hole,” in effect transforming into a matter of constitutional law the policies embodied in whistleblower legislation protecting those who expose corruption and wrongdoing.

The First Amendment, O’Scannlain insisted, such protect public employees only when they are expressing their personal opinions—“those views he or she holds as a citizen and not as a public employee.”

But Reinhardt said the rule O’Scannlain advocated would be destructive of efforts to expose misconduct and improve governance. Judge Raymond C. Fisher concurred in the opinion authored by Reinhardt.


Copyright 2005, Metropolitan News Company