Thursday, October 13, 2005
U.S. Urges High Court to Toss Prosecutor’s Suit Against Garcetti
From Staff and Wire Service Reports
An attorney for the federal government yesterday urged the Supreme Court to throw out Los Angeles Deputy District Attorney Richard Ceballos’ suit claiming he was retaliated against for writing a memo accusing a deputy sheriff of lying in a search warrant affidavit.
Bush administration lawyer Dan Himmelfarb said workers who feel like they’ve been wrongly punished can file a civil service complaint. He said that government employees are not entitled to free speech coverage for things they say in the scope of their job.
Justices seemed conflicted on where to draw the line in protecting the First Amendment speech rights of more than 20 million public employees.
The Ninth U.S. Circuit Court of Appeals last year revived Ceballos’ suit against former District Attorney Gil Garcetti, Garcetti’s top deputy, and Deputy District Attorney Carol Najera. The court ruled that U.S. District Judge Howard A. Matz of the Central District of California erred in ruling that the defendants had qualified immunity in the 42 U.S.C. Sec. 1983 action and that the county and Garcetti, in his official capacity, were immune from suit under the Eleventh Amendment.
Ceballos claims 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.
Judge Stephen Reinhardt, in his opinion for the Ninth Circuit, said that under the court’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.”
Concurring Judge Diarmuid F. O’Scannlain agreed that the case was governed by Roth but argued that Roth should be overruled, lest every public-sector employment dispute become a federal constitutional case.
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.
In yesterday’s hourlong arguments, justices talked about the importance of preserving the privacy of some government work, like the high court’s own deliberations. But there were also concerns about concealing governmental misconduct.
“We live in a world where people are leaking things all the time,” said Justice Stephen Breyer, adding that he was uncomfortable giving government employees blanket protection for things they say.
Other justices also struggled as they reviewed a lower court ruling in favor of a Los Angeles County prosecutor who said he was demoted and denied a promotion for trying to expose a lie by a county sheriff’s deputy in a search warrant affidavit.
Bonnie Robin-Vergeer, the attorney for prosecutor Richard Ceballos, said that about 100 such lawsuits are filed each year and that employees should know they cannot be fired for speaking out when they see wrongdoing.
The First Amendment protects government workers from being punished for conduct involving a “public concern” rather than personal, job-related issues. The court is using this case to clarify the protection.
Stephen M. Kohn, a leader with the National Whistleblower Center, said that a victory for the government would mean “whistleblowers who expose waste, fraud and corruption will have less constitutional protection than Ku Klux Klan members who burn crosses on their front lawns.”
Justice Ruth Bader Ginsburg seemed sympathetic to Ceballos, saying “this is a person whose job includes being candid, serving justice, serving truth.”
But many other justices appeared ready to side with the District Attorney’s Office.
Justice Anthony M. Kennedy said the court’s decision could affect inner workings of every government office at every level. Justice Antonin Scalia said that there could be arguments that office gossip about extramarital affairs could be revealed to reporters on grounds that it was free speech.
Copyright 2005, Metropolitan News Company