Tuesday, May 30, 2006


Stop me if you've heard this before: The 9th Circuit was overuled today...

Today, the Supreme Court issued its opinion in a so-called whistle blower case: Garcetti v. Ceballos. Justice Kennedy wrote for the 5-4 majority while Justices Stevens, Breyer and Souter all wrote dissents: Opinions - Majority & Dissents. The decision overturns a previous (surprise!!) Ninth Circuit ruling.

In the case, Mr. Ceballos, acting as the ‘calendar’ deputy district attorney in Los Angeles, reviewed a previously issued warrant. He thought he discerned some problems with it and wrote a memo outlining his concerns. Despite the memo, the County went ahead with the case. The defense filed on motion on the warrant, even calling Mr. Ceballos as part its presentation at the hearing. Despite Mr. Ceballos testimony though, the judge rejected the motion and allowed the warrant et al to stand.

Despite Mr. Ceballos’ efforts against the state’s case, he did not lose his job. However, he filed suit anyway; claiming he was reassigned away from his position as calendar deputy to trial deputy, sent to another courthouse and, of course, denied a promotion. All this he claimed as a violation of his First Amendment Rights.

The District Court summarily rejected Ceballos case:

“Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo’s contents.”

but then the Ninth Circuit resorted to one its infamous “balancing tests” and overturned the District court ruling…leading to today’s opinion.

The Washington Post’s Fred Barbash apparently thinks this case has some significance because with it, the Supreme Court Limits Whistleblower Lawsuits:

“The Supreme Court today narrowed the First Amendment protections for public employees who reveal perceived wrongdoing they happen to observe in the course of doing their jobs.
“The decision enhances the ability of governments at all levels to punish employees for speaking out, shielding officials in many instances from lawsuits for violating the right to free speech.”

Mr. Barbash never really explains exactly how the majority opinion does all this but as Justice Kennedy clearly notes:

“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. …. (“[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes”).

That seems to me to be rather intuitive and obvious but since some unions had a different opinion of the case, I guess the Post felt it had no choice but to fall in line:

“The case was closely watched by governments across the country as well as public employee unions, who feared today's outcome.” (emphasis added)

The County apparently never admitted that any of its actions (or non-actions) were as retribution for Mr. Ceballos’ memo and follow-ups in the underlying case – claiming, instead, that the reassignments were for legitimate staffing purposes. But can’t a reasonable inference be made that Mr. Ceballos’ memo just wasn’t very good and below what would reasonably be expected of a deputy attorney general? After all, his superiors rejected his arguments, followed up a trial judge’s own apparent rejection of those arguments in the motion hearing. If they told me that he wasn’t promoted because the memo was evidence that he just wasn’t that good at what he was supposed to be doing – well, okay – I can go along with that.

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