Wednesday, March 22, 2006
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U.S. High Court Mulls Free Speech Claim by Local Prosecutor
Deputy District Attorney Contends He Was Demoted for Questioning Veracity of Warrant Affidavit
From Staff and Wire Service Reports
Several U.S. Supreme Court justices expressed skepticism yesterday at the assertion a Los Angeles 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 case involves Richard Ceballos, a Los Angeles prosecutor who was demoted after he urged his supervisors to drop a criminal case because he believed a sheriff’s deputy had lied in a search warrant affidavit.
A ruling against Ceballos could affect the nation’s 20 million public employees by removing their ability to use the First Amendment as protection against supervisors’ retaliation for bringing government misconduct or other issues to light.
At issue is whether employers’ desires to operate efficient workplaces outweigh whistleblowers’ rights as citizens to speak out on matters of public interest.
The argument yesterday was the second time the court dealt with the case this term, apparently because of a tie vote during the justices’ internal conferences. The appeal was not resolved before Justice Sandra Day O’Connor retired and was replaced by Justice Samuel Alito in late January.
Alito actively questioned all lawyers in the case, wondering whether employers would have to specify every job duty an employee has to avoid lawsuits like the one Ceballos filed.
Four other justices — including Chief Justice John Roberts — were skeptical of arguments by Bonnie Robin-Vergeer, Ceballos’ attorney, that public employees have free-speech rights when they speak out in an office or write memoranda.
Employees, she said, “should not be required to tell supervisors only what they want to hear.”
“Neither should a supervisor be required to get a report from an employee that’s way off,” Justice Antonin Scalia said, referring to employees who persist in making unsubstantiated charges of misconduct.
Scalia and Roberts questioned whether Ceballos’ allegations of police misconduct were correct and suggested that the Los Angeles County district attorney’s office had a right to try to control “a loose cannon,” as Scalia put it.
A Ninth U.S. Circuit Court of Appeals panel ruled that Ceballos could sue former District Attorney Gil Garcetti, Garcetti’s top deputy, and Deputy District Attorney Carol Najera.
Retaliation Claim
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.
The Bush administration sided with the District Attorney’s Office, saying the government’s desire to maintain an efficient workplace outweighs an employee’s right to voice opinions about internal decision-making.
“When the government pays for somebody to do its work it has the absolute right to determine how that work will be performed,” Deputy Solicitor General Edwin S. Kneedler said.
If the justices side with the District Attorney’s Office, Robin-Vergeer said, employees would face a “perverse” result by being forced to go public — and not keep their concerns in-house — to ensure free-speech protection. Such an outcome would be more disruptive for government agencies, she said.
When Alito suggested employers want to know about problems, Robin-Vergeer said there is “much evidence” that supervisors don’t always like receiving “bad news.”
Ninth Circuit Ruling
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.”
Judge Diarmuid F. O’Scannlain, writing separately, agreed the defendants lacked immunity under Roth, but said that case was “wrongly decided and...ought to be overruled.”
Otherwise, he argued, “what federal or state employment-based decision can possibly evade intrusive federal constitutional review?”
The First Amendment, O’Scannlain insisted, should 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 2006, Metropolitan News Company