Thursday, January 15, 2009
Ninth Circuit Rules Retaliation Claim Against Cooley Can Proceed
By SHERRI M. OKAMOTO, Staff Writer
The Ninth U.S. Circuit Court of Appeals is allowing veteran Deputy Los Angeles District Attorney David Eng’s retaliation claim against his employer to go forward, ruling yesterday that Eng had a clearly established personal First Amendment interest in his lawyer’s advocacy on his behalf.
The panel ruled yesterday that Eng’s supervisors and District Attorney Steve Cooley were not entitled to qualified immunity from Eng’s claims that he had been retaliated against for an interview given by his lawyer on his behalf to the press.
Eng was involved in a seven-month investigation by a task force into allegations of fraud and environmental crimes related to the planning and construction of the Los Angeles Unified School District’s Belmont Learning Complex which had been established by Cooley, who had campaigned on a promise to reform the Belmont project.
The task force found that the building site was, and had, always been environmentally safe and that no indictments should issue. But when he reported the task force’s findings to Anthony Patchett, former special assistant to Cooley, Eng claimed that Patchett threatened him with “severe [personal] consequences” if the task force did not tell Cooley what Patchett believed Cooley “wanted to hear.”
When the task force met with Cooley, Eng presented the task force’s conclusions and Patchett issued an opposing report. Cooley’s executive staff eventually adopted the task force’s findings.
At the meeting, the task force discussed a recent a Los Angeles Times article reporting that the Los Angeles Unified School District’s finance agreements for the Belmont project were being canceled and that the district would have to refinance the project at a higher interest rate, Eng claimed.
He alleged that the agreements had been cancelled because Patchett had leaked information to the IRS that the district had committed fraud in purchasing the Belmont property. Eng allegedly voiced his opinion that the agreements were legal, but Cooley angrily told him to “shut up.”
Following the meeting, Eng was informed that he was under investigation for sexual harassment of a law clerk whom Eng had previously dated. The law clerk had not filed the complaint, and expressly advised investigators that Eng had not harassed her, according to Eng’s complaint. No harassment charges were ever brought against Eng.
Eng was also reassigned to the Pomona Juvenile Division, which he asserted was a “clear demotion,” because the position is generally “the first stop for beginning attorneys” and he was a senior attorney in the office.
When he was subsequently suspended without pay, Eng retained Los Angeles attorney Mark Geragos of Geragos and Geragos.
He later received a notice from the district attorney’s office that misdemeanor charges had been filed against him for using an office computer to access private information.
The misdemeanor charges were dismissed when the only potential witness against Eng invoked his Fifth Amendment right to remain silent, but Head Deputy Steven Sowders, since retired, informed Eng that he could not return to work.
Geragos filed an appeal on Eng’s behalf with the County Civil Service Commission. Although the commission ordered that Eng be allowed to return to work and that his lost pay and benefits be restored, Eng’s suspension was extended an additional 30 days.
At around this time, Geragos gave a press interview detailing Eng’s allegations that he was being retaliated against for refusing to file criminal charges against individuals involved in the Belmont project and because he had complained that it was improper for members of the task force to contact the IRS.
Shortly after the interview was published, Sowders allegedly told Eng and Geragos that Eng would “never be allowed to come back” to the District Attorney’s Office and that “they would come up with additional things to charge Eng with so that he would remain on suspension or be terminated.”
Sowders later asked Eng why he had allowed Geragos to give the interview, and offered to “resolve matters” if Eng agreed to request a retraction and publicly apologize to Cooley, Eng alleged.
According to his complaint, he refused to request a retraction, and one week after returning to work, he was again suspended without pay.
Again, Eng appealed the suspension to the Civil Service Commission, the commission again ruled in his favor.
Eng returned to work but was allegedly denied full benefits and has since been passed over for promotion.
He later filed suit against Cooley, Sowders, former Chief Deputy District Attorney Curt Livesay, Patchett, and Assistant District Attorney Curtis A. Hazell in their individual capacities, claiming that they had retaliated against him for exercising his First Amendment right to comment on the Belmont project and the leaks to the IRS, and to speak through his attorney to the press.
The defendants moved for summary judgment based on qualified immunity.
U.S. District Court Judge Otis D. Wright II of the Central District of California granted the partial summary judgment with respect to Eng’s recommendation that no criminal charges be filed against individuals associated with the Belmont project.
He found that Eng was “merely fulfilling his job duties when he gave his Task Force recommendation,” and those statements were therefore not constitutionally protected, but Wright denied summary judgment as to the remainder of Eng’s claims.
On appeal, the defendants argued that Eng lacked standing to pursue a First Amendment retaliation claim for statements that were made by Geragos, but in his opinion for the appellate court, Judge Michael Daly Hawkins explained that Eng did not need to raise a third-party standing claim because he had a constitutional interest in Geragos’ speech.
Because an attorney is a “client’s speaker hired to deliver the client’s message,” and Geragos spoke on behalf of Eng in his capcity as Eng’s lawyer, his words were Eng’s words for purposes of First Amendment analysis, Hawkins wrote.
Hawkins further reasoned that a client’s interest in his attorney’s free speech on his behalf “necessarily follows from the client’s First Amendment right to retain counsel,” and was therefore a clearly established right.
Assuming that Eng’s
version of events were true, Hawkins concluded that
Eng’s allegations demonstrated a violation of his constitutional rights and that the defendants were not entitled to qualified immunity.
Senior U.S. Circuit Judge Richard D. Cudahy of the Seventh Circuit, sitting by designation, and Judge Harry Pregerson joined Hawkins in his opinion.
Eng told the MetNews yesterday:
“When you join the District Attorney’s Office and you make it your career and you’re a loyal civil servant, the last thing that you expect is for your own administration to try and ruin your career, which is what happened here.”
He said he had committed 25 years of his career to the District Attorney’s office, but “what the administration has done to my career and everything that I have worked for made this career choice a very bitter experience.”
After having spent nine years doing environmental prosecution and being “on the cutting edge” of environmental law, he said he has been “languishing” in the juvenile division for the past six years and “since realized that there is no loyalty in this office, good works are not rewarded, ethical conduct is not rewarded, and it truly taints a commitment to public service.”
Eng’s appellate counsel, D. Jay Ritt of Bensinger, Ritt, Tai & Thvedt LLP, suggested that yesterday’s decision “will allow public employees to sleep a little safer knowing that it will be harder for pub employers to retaliate against employees for the legitimate exercise of their First Amendment rights.”
Ritt said that the District Attorney’s office “destroyed” Eng’s “hard earned career,” and that he and his client would be seeking “significant” damages for the “ludicrious retaliatory charges” made against Eng.
He emphasized that there was no office policy against dating within the workplace, and accused Hazell and Sowders, who had investigated Eng, of having engaged in questionable conduct themselves.
Hazell fathered a child with a witness in a capital murder case while he was prosecuting the case, and Sowders engaged in a sexual relationship with a secretary who later became his wife, Ritt claimed.
“It’s egregious how this administration has abused taxpayer dollars’ investigating Eng”, Ritt contended. “What they’re supposed to do is pursue justice, but they pursued vindictiveness.”
A spokesperson for Cooley released a statement that the office “strongly disputes the claims made by the Plaintiff,” and vowing to “vigorously litigate the issues in court.”
Geragos said that yesterday’s opinion meant that a defense lawyer “has the absolute right to defend his client, and you cant retaliate against the client for that.” Following the decision, he said, “the clarity of my right to defend my client is beyond dispute.”
Deputy District Attorney Steve Ipsen, Association of Deputy District Attorneys president and an unsuccessfully challenger to Cooley last year said that Eng’s claim was one of many against the Cooley administration and prior administrations alleging abuse of the transfer process.
He said that the office does not have a written policy establishing the transfer process or any rights of the attorneys within the office. “The lack of a policy creates either the reality of a putative transfer system, or the appearance of a putative transfer system,” Ipsen opined.
Based on a poll of ADDA members two years ago, Ipsen said a “very strong majority” want a change in the office’s transfer policy, adding “I would not be union, but for this issue.”
Ipsen said that the union will be presenting a proposal to Cooley next Friday to discuss a solution “to this, and similar problems,” opining that Cooley’s establishment of a written transfer policy “go a long way in reassuring the public that his policy is to treat all prosecutors fairly.”
The case is Eng v. Cooley, 07-56055
Copyright 2009, Metropolitan News Company