Garcetti, Gil, et al. v. Ceballos, Richard (05/30/2006)

Question presented: Should a public employee's purely job-related speech, expressed strictly pursuant to the duties of employment, be cloaked with 1st Amendment protection because it touches on a matter of public concern, or should 1st Amendment protection also require the speech to be engaged in "as a citizen," in accordance with this Court's holdings in Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S. 138 (1983)?

BY TAWNEY SAYLOR & EMILY WITHROW, MEDILL NEWS SERVICE

No one likes a tattletale, especially not the Los Angeles District Attorney's Office.

In February 2000, Richard Ceballos worked as a calendar deputy in the district attorney's Pomona branch and was asked to investigate allegations of misconduct in a case that his office was prosecuting.

The defense attorney in People v. Cusky, an auto parts theft case, told Ceballos that he believed one of the arresting deputy sheriffs may have lied to obtain a search warrant.

After reviewing court documents and revisiting the crime scene, Ceballos determined that the sheriff had, at the very least, significantly misrepresented the facts on a search warrant affidavit.

Ceballos prepared an office memo on the flawed warrant and gave it to his supervisors, deputy district attorneys Carol Najera and Frank Sundstedt, who decided to proceed with the prosecution.

Ceballos informed the defense counsel about his findings, and was subpoenaed to testify at a hearing on a motion to dismiss the case. The judge denied the motion and Ceballos was removed from the prosecution's team.

According to a complaint he filed in federal court, this was the 1st of many retaliatory actions the district attorney's office took against Ceballos.

Shortly after he blew the whistle on his colleagues, Ceballos was denied a promotion, demoted to the rank of trial deputy and transferred to the El Monte branch.

Ceballos claimed that it was unlawful for his supervisors to punish him for engaging in speech that is protected by the 1st Amendment. He also claimed that the county of Los Angeles should be held responsible for failing to train, supervise and discipline its district attorneys regarding such retaliation.

A district judge dismissed the suit, granting qualified immunity to the individual defendants - Najera, Sundstedt and former District Attorney Gil Garcetti - and 11th Amendment immunity to the county defendants.

Ceballos took the matter to the 9th Circuit Court of Appeals. The central issues before the court were: did Ceballos' speech warrant constitutional protection and should the county be liable if officials violated that right?

The 9th Circuit reversed, holding that Ceballos' speech was protected under the 1st Amendment and the court erred by granting immunity to the defendants.

Writing for a unanimous panel, Judge Stephen Reinhardt explained that Ceballos' speech warranted constitutional protection because "the law was clearly established (in the 1983 Supreme Court case of Connick v. Myers) that Ceballos' speech addressed a matter of public concern" and "his interest in the speech outweighed the public employer's interest in avoiding efficiency and disruption," as was set out in 1968 in Pickering v. Board of Education.

In defining the scope of 1st Amendment protection given to public officials, the Supreme Court distinguished between speech as "a citizen upon matters of public concern" and speech "as an employee upon matters only of personal interest."

The Supreme Court ruled that a government employee's speech loses 1st Amendment protection only if that speech has absolutely no relevance to the public's evaluation of the performance of governmental agencies.

"We have held that when government employees speak out about corruption, wrongdoing, misconduct, wastefulness, or inefficiency by other government employees, including law enforcement officers, their speech is inherently a matter of public concern," Reinhardt wrote. "The right of public employees to speak freely on matters of public concern is important to the orderly functioning of the democratic process."

In a concurring opinion, Judge Diarmuid O'Scannlain suggested the creation of a "per se rule," where public officials would lose their 1st Amendment protection if their speech took place in the course of carrying out their employment obligations.

"The time has come for us to reappraise our jurisprudence concerning the free speech rights of the publicly employed and the scope of legitimate governmental regulation in its capacity as an employer," O'Scannlain wrote.

But Reinhardt dismissed the idea, saying that such a rule would "seriously undermine our ability to maintain the integrity of governmental operations."

Reinhardt also pointed out that the county should be held liable for the retaliatory actions taken against Ceballos. Court precedents show that a county can only have immunity if a prosecutor violates a person's constitutional rights while acting in a judicial proceeding. If a prosecutor violates these rights while performing administrative and other non-prosecutorial duties, he does not have immunity and the county is liable for his actions.

Here, the county is not entitled to 11th Amendment immunity, Reinhardt wrote, because the district attorney was acting as a county official and was carrying out an administrative function when he demoted and transferred Ceballos.

In support of the district attorney's office, the California State Association of Counties filed a friend of the court brief, urging the U.S Supreme Court to take the case.

"The looming, yet uncertain threat of federal judicial scrutiny may well chill the exercise of what otherwise be rational, effective management practices," the brief states. "In order to avoid liability in litigation, the public employer is likely to err on the side of foregoing corrective criticism of government while carrying out job duties. As a result, the government will retain workers who have been identified by the government as ineffective or unsatisfactory.

However, according to Ceballos' attorney, Bonnie Robin-Vergeer of the Public Citizen Litigation Group, the public will suffer the heaviest consequences if the Court fails to protect the constitutional right of government officials to report on unlawful activities.

"Public health and safety will be compromised if public employees who perceive corruption feel chilled in their ability to speak out," she said. "The people who are best able to express misconduct will be retaliated against without 1st Amendment protection and the consequences for the public will be grave."

On Feb. 28, 2004, the Supreme Court accepted review in the case, and heard oral arguments on Oct. 12, 2005.

Representing the district attorney's office, Cindy S. Lee argued that the problem with the 9th Circuit's opinion is that every time a question arises concerning a public employee's required job performance, it will essentially put the issue of motive and reason before a jury or a federal court.

Justice Ruth Bader Ginsburg challenged Lee, asking her if she thought job-related speech was simply not protected by the 1st Amendment.

"Our view is that job-required speech should not be protected under the 1st Amendment," Lee told the Court. "So there is no need to go into the balancing. There is no need to go into the weighing of the interests of the employer versus the employee."

Justice John Stevens asked Lee to provide him with an example of public speech that would be protected but, if made privately to one's superior, could be a basis for discharge.

He expressed doubt that an employee should have more 1st Amendment speech protection outside the workplace than in the workplace, if making objections about work. "It seems to me odd that the employee has greater protection if he goes outside the regular channels and makes a speech than if he…goes right to his superior and says, ‘I think this is what's wrong and should be remedied,'" Stevens said.

Much of the argument revolved around the relevance of the Connick-Pickering test, and whether or not it was applicable in this case.

"I think that there's an open question under Pickering," Justice Anthony Kennedy said, "and that this case presents it. … Are there some matters as to which the employer can protect its own interests and stifle the employee's speech?"

For Ceballos, Bonnie Robin-Vergeer argued that the Pickering balancing test was deferential to the employer, and that reversal of the 9th Circuit would further discourage employees from speaking out on matters of public concern. She contended that the 9th Circuit had rightly recognized whistleblower type speech as of paramount public importance because it reports government misconduct.

"And the consequence of your view is to have the 1st Amendment being used for courts to monitor the discussions that take place in every public agency – local, state, and federal – in the United States," Kennedy challenged Robin-Vergeer. "You're advocating a sweeping rule."

Robin-Vergeer disagreed, saying that instead of a Connick-Pickering test, there would be the Connick-Pickering-Ceballos test.

"That question would be, 'Was the person doing their job?'" Robin-Vergeer postulated. "How do you decide that? Is it in his job description? Is it a matter of custom and practice? What if he's doing extra-credit work to build up goodwill with his employer, but it's something that's not ordinarily required?"

She said that without the 9th Circuit's decision, an employee would have to go public in order to have presumptive 1st Amendment protection.

"But what's bothering me is, while I see the government's role as protecting the interests of the employer," Justice Stephen Breyer told her, "it's very hard for me to believe that never is there an instance where the 1st Amendment offers protection. But the only choice you've given me is a rule that says every dispute of public interest is going to go right into constitutional litigation. And I don't like that either. So, I am hopelessly forced to choose which is the lesser of two evils."

The justices agreed that although certain whistleblower statutes exist in various states, they are patchwork as such. Some of the statutes would provide Ceballos 1st Amendment protection under the state, whereas others fail to address job-required speech at all.

"This case, in its essence, is about whether a public employee has a constitutional right to perform his assigned job duties in such a way that is to the dissatisfaction of the employer," Lee said in the minute she had reserved for her rebuttal. "In Pickering and Connick, this Court contemplated 1st Amendment litigation in a public-employment context in the relatively rare circumstances in which adverse employment action was taken as a result of an employee's extracurricular activities. Under the 9th Circuit and the respondent's approach, the exception would become the rule."

On Feb. 17, 2006, the Court restored the case to the calendar for reargument. It was reargued a month later, on March 21, with Samuel Alito on the bench.

On May 30, the Court, divided 5-4, found against Ceballos, holding that when public employees make statements pursuant to their official duties, they are not speaking as citizens for 1st Amendment purposes, and therefore, the Constitution does not insulate their communications from employer discipline.

In the first 5-4 decision since both Chief Justice John Roberts and Justice Alito joined the Court, they joined Justices Antonin Scalia and Clarence Thomas in constituting a majority with Justice Kennedy, who wrote the majority opinion.

In the majority's analysis, the Court addressed first whether Ceballos spoke as a citizen on a matter of public concern. The Court then looked further in recognition that a government employer may have an adequate justification for treating the employee differently from any other member of the general public to ensure that it can provide public services efficiently.

This, the majority concluded, the government did have because Ceballos' expressions were made pursuant to his official duties. Ceballos wrote his disposition memo because that was part of what he was employed to do, Kennedy reasoned. He did not act as a citizen by writing it.

In so concluding, though, the majority noted that although the Court's precedent do not support a constitutional basis for protecting Ceballos, there can exist federal and state whistle-blower protection laws, labor laws, employee rules of conduct that may give them a cause of action against governmental discipine.

Justices David Souter, Stevens, Ginsburg, and Breyer dissented. In Stevens' short dissent, he criticized the majority for mistakenly concluding that the 1st Amendment should never protect a government employee from discipline based on speech made pursuant to his official duties. What if it is "just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?" Stevens posed. It is "senseless," Stevens added, "to let constitutional protection for exactly the same words hinge on whether they fall within a job description."

Justice Souter's dissent also found fault with the "categorical exclusion" of 1st Amendment proection whenever an employee's speech came as part of his job responsibilities. He asked: "Are government nuclear scientists' complaints to their supervisors about a colleague's improper handling of radioactive materials made 'pursuant' to duties?" and therefore unprotected?