Metropolitan News-Enterprise


Monday, July 7, 2008


Page 1


Court Orders Rehearing on Governor’s Aides’ Title VII Suit


By a MetNews Staff Writer


An en banc panel of the Ninth U.S. Circuit Court of Appeals will decide whether a federal statute allowing some state and local government employees to sue for employment discrimination applies to members of a governor’s staff responsible for formulating and communicating policy, the court announced Thursday.

In a brief order, Chief Judge Alex Kozinski said a majority of the court’s active judges had voted to reconsider the ruling by a divided three-judge panel in November that the Government Employee Rights Act of 1991 violates the Eleventh Amendment to the extent it purports to strip states of their prior immunity from suits by persons in such politically sensitive positions.

The ruling, authored by Senior Judge John T. Noonan, overturned an order by the Equal Employment Opportunity Commission remanding the claims of two former Alaska employees to an administrative law judge after the commission determined it did not have jurisdiction to decide the constitutional issues in the case, which arose from Alaska’s turbulent politics in the 1990s.

In 1990, former Gov. Walter Hickel—who had resigned as the state’s chief executive more than 20 years earlier to become Richard Nixon’s secretary of the interior—was returned to the office after running on the Alaska Independence Party ticket.

Although a Republican who disagreed with the AIP’s advocacy of secession, Hickel had accepted the party’s nomination, which was offered after many Republicans began to publicly criticize their party’s nominee. He was joined by Jack Coghill, who had won the Republican primary for lieutenant governor, but dropped off that ticket to run as Hickel’s running mate.

Hickel named several of the lieutenant governor’s allies to his staff in deference to Coghill, including Margaret Ward as the director of his Anchorage office and Lydia Jones, who is now deceased, as Ward’s special staff assistant. Both positions were exempt from the state’s civil service laws, and job descriptions explicitly stated that duties included assisting constituents and advancing the governor’s policy agenda.

Relations between the governor and lieutenant governor soured, however, as Hickel eventually moved back to the Republican Party while Coghill made plans to run in 1994 for the top job. (Coghill got 13 percent of the vote as the AIP candidate, as Democrat Tony Knowles won by a narrow margin.)

Suspecting that Ward and Jones were surreptitiously working for Coghill’s campaign, Hickel’s chief of staff warned them against any such involvement, and then placed them on administrative leave before eventually firing them after the two held a press conference to criticize the governor.

Ward and Jones later filed complaints with the EEOC. Ward alleged that she was the victim of sex discrimination and retaliation, while Jones, an African American, said she was the victim of race and sex discrimination, and had been sexually harassed by another staff member.

An administrative law judge determined that he lacked jurisdiction to rule on the state’s Eleventh Amendment objection to the proceedings and referred the matter to the commission, who concluded it too lacked jurisdiction and sent the case back to the ALJ , before the Ninth Circuit—concluding that it should hear the matter under the unusual circumstances—agreed to hear an appeal.

Writing for the court, Noonan noted that Congress—despite acting on the basis of a legislative record showing that discrimination against state and local government employees was a significant problem—had made no findings with regard to discrimination against employees on governors’ staffs.

He also pointed out that public entities were immune from suits by their officers by “any person chosen by such officer to be on such officer’s personal staff” and employees “on the policymaking level” or serving the official as “an immediate adviser with respect to the exercise of the constitutional or legal powers of the office,” under Title VII of the federal Civil Rights Act, as enacted in 1972.

Noonan explained that the Supreme Court has held that the Eleventh Amendment—which protects a state only against a “suit in law or equity, commenced or Citizens of another State” in federal court—provides broad immunity to states, including immunity against actions by federal agencies on behalf of citizens of the same state, and said that this immunity must give way where Congress legislates to enforce the Fourteenth Amendment, and the legislation is appropriate to a paramount individual interest Congress has identified.

Concluding that allowing members of the governor’s staff to sue the state was not appropriate to such an interest, Noonan said that treating the policymaking assistants through whom a governor acts as subject to federal legislation was “tantamount to holding that the highest elected official in a state is bound by GERA.

“We do not believe that GERA is a proportionate response to a widespread evil identified as the predicate of this legislation,” he wrote.

Senior Judge J. Clifford Wallace concurred separately with Noonan, writing that Congress could have attempted to show the need to apply GERA to the policymakers it exempted from the 1972 act, but failed to “take the time for hearings to develop an appropriate record,” requiring the court to conclude as it did.

However, Judge Richard A. Paez, citing the deference owed to Congress when it exercises its Enforcement Clause authority, argued in dissent that the record before Congress had been sufficient to abrogate Eleventh Amendment immunity.


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