Metropolitan News-Enterprise


Wednesday, May 31, 2006


Page 1


U.S. High Court Limits Free Speech Rights of Public Employees

In 5-4 Decision, Justices Overturn Ninth Circuit Ruling in Favor of Local Prosecutor


By a MetNews Staff Writer


A Los Angeles deputy district attorney had no First Amendment protection against being demoted for authoring an internal memorandum accusing a law enforcement officer of lying and disclosing the memo to a defense attorney, the U.S. Supreme Court ruled yesterday.

“When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” Justice Anthony M. Kennedy, writing for a divided high court, said.

The court reversed and remanded to the Ninth U.S. Circuit Court of Appeals a suit brought by Deputy District Attorney Richard Ceballos. The U.S. District Court for the Central District of California had granted summary judgment to the defendants, but was reversed by the Ninth Circuit.

Kennedy wrote the majority opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito. Justice David Souter wrote a dissenting opinion joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer wrote a separate dissenting opinion.

The case was reargued after Alito replaced Justice Sandra Day O’Connor, suggesting that O’Connor may have sided with Ceballos in the court’s internal vote.

In February 2000, Ceballos was employed as a calendar deputy in the office’s Pomona branch. A defense attorney contacted Ceballos about inaccuracies in an affidavit used to obtain a critical search warrant in a pending criminal case, the prosecutor said. After reviewing the affidavit and visiting the location it described, Ceballos said he believed that the affidavit contained serious misrepresentations. He spoke with the deputy sheriff who signed the affidavit, but did not receive a satisfactory explanation for the inaccuracies, he said.

Supervisors Informed

Ceballos informed his supervisors, Carol Najera and Frank Sundstedt, of his findings and prepared a disposition memorandum in which he advised that the case be dismissed. After a meeting with Ceballos, his supervisors, the deputy sheriff and other members of the sheriff’s department, Sundstedt decided to proceed with the case, pending the outcome of motion by the defendant challenging the warrant.

Upon being called by the defense, Ceballos testified regarding his findings at the hearing on the motion, which was denied by the court on the grounds that other evidence supported issuance of the warrant.

Ceballos claimed he was then demoted to trial deputy and reassigned to handle misdemeanors in El Monte in retaliation. He sued former District Attorney Gil Garcetti, his chief deputy, and Najera, alleging violations of his First Amendment rights of free speech.

“Government employers, like private employers, need a significant degree of control over their employees’ words and actions without it, there would be little chance for the efficient provision of public services,” Kennedy wrote. “The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”

Ceballos’ attorney, Bonnie Robin-Vergeer of the Public Citizen Litigation Group in Washington, D.C., told the MetNews she was “very disappointed.” The decision “strikes a blow against public employees who want to report government misconduct, “ she said.

Local Reaction

Humberto M. Guizar, Ceballos’ local attorney, said the court was trying to limit law suits, but their ruling might backfire because they’re “telling D.A.s ‘go out and have a press conference.’”

Stevens seemed to agree, saying in dissent, “[I]t seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”

Guizar pointed out that the court dealt only with the memorandum written by Ceballos. He said that Souter’s dissenting opinion left open the possibility that other communications by Ceballos, such as his testimony in the motion to challenge the warrant, might be protected. Guizar said that Ceballos also spoke about the incident before the Mexican American Bar Association.

Guizar expressed regret that the court didn’t focus narrowly on a “deputy D.A.’s obligation to report wrongdoing when he sees it,” but instead, “made it a wider issue,” applicable to all public employees.

In his dissenting opinion, Souter wrote:

“I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.”

The case is Garcetti v. Ceballos, 04-473.


Copyright 2006, Metropolitan News Company