Wednesday, October 12, 2005

Legal Stuff

It's been a while since my last make-Matt's-brain-bleed legal post, so I thought I'd give it a whirl. The case that caught my eye this time around is one pending before the US Supreme Court - Garcetti v. Ceballos. SCOTUSblog brought it to my attention with this synopsis of the facts. For those so inclined the brief for Garcetti (the government) is here, the brief for Ceballos is here, and the amicus brief filed by the US government is here.

The three primary players in this case are Richard Ceballos, a Deputy District Attorney with the Pomona branch of the LA County District Attorney’s Office, his immediate supervisor at the time, Carol Najera, and Head Deputy of the Pomona Branch Frank Sundstedt. Ceballos had been a Deputy District Attorney since 1989, starting as a trial deputy but being promoted to a “calendar deputy” less than a year later, a position giving him supervisory authority over more junior prosecutors and primary responsibility for prosecutions brought in the courtroom to which he was assigned.

In February 2000, Richard Escobedo, a lawyer representing one of the defendants in People v. Cuskey, a case assigned to Ceballos’s courtroom, asked Ceballos to investigate whether one of the arresting deputies from the LA County Sheriff’s Department had lied in an affidavit used to obtain a warrant to search Michael Cuskey’s property. The defense had filed a motion to traverse, or challenge, the warrant.

Basically, the officers had alleged in the warrant that they had found a stripped pickup truck on the street near Cuskey’s home. They said they followed tracks from the truck back to the Cuskey property, and wanted the warrant to go into the residence to search for evidence Cuskey was running a chop shop. When they got to the residence, they found methamphetamine and firearms on the property. The search yielded no sign that Cuskey’s property was used as a stolen-car “chop shop,” and none of the defendants was charged with possessing stolen property. Ceballos examined the photographs with the file, and it raised some red flags. To take an example from his brief, he indicates that the deputy had characterized as a “long driveway” the road on which two other deputies had supposedly observed tire tracks that “appeared to match the [truck’s] tread pattern,” leading from the stripped pickup truck to the defendant’s home. In fact, however, the “driveway” was more like a separate road several hundred feet in length, several car lengths in width, and bordered by many residences, rendering it highly unlikely that the deputies could have traced tire tracks from the defendant’s home to the street. The discrepancy having raised a red flag, Ceballos visited the crime scene. He drove up and down the “driveway” in his truck to see whether he could leave detectable tire tracks or tread patterns and determined that it was impossible to do so because the road’s composition of broken asphalt, gravel, and dirt was not conducive to maintaining tire tracks along its complete length. So Ceballos goes to his fellow prosecutors, showing them the photographs and videotape and describing the facts. Every prosecutor Ceballos consulted agreed that the validity of the warrant was questionable.

At that point, Ceballos went to Najera and Sunstedt, showed each of them the videotape and on March 2, 2000, Ceballos prepared a memorandum for Sundstedt reporting his assessment that Deputy Wall’s affidavit had relied on inaccurate, misleading, and possibly outright false information. Ceballos recommended that the criminal cases against the three defendants be dismissed.

On March 6, 2000, Ceballos wrote a second memorandum, in which Ceballos had stated that the affidavit appeared to be “grossly inaccurate” and that Ceballos had visited the location of the search and found it implausible that discernible tire tracks could be seen along the roadway’s entire length. Somewhere along the line, Deputy Walls made some clarifying statements, including one that the affidavit should have been “modified” to say the deputies had observed “tire gouges,” caused by the rims of the stolen truck scraping along the roadway, and not “tire tracks,” as the affidavit stated.

At some point the memoranda were given to the Sheriff’s Department, who were understandably upset about the whole thing. At a meeting with the Sheriff’s Department, Sunstedt and Ceballos, a lieutenant accused Ceballos of acting like a “public defender,” criticized him for not putting the case on and letting the judge decide, and demanded his removal from the case. There was some discussion of whether the case should proceed to preclude a lawsuit from one of the defendants. At the end of the meeting, Sundstedt decided to proceed with the case pending the outcome of the motion to traverse and let the courts decide the issue.

About a week later, the Cuskey defense issued a subpoena to Ceballos to testify at the hearing on the motion to traverse. Ceballos approached Najera to discuss his view that both his March 2 and 6 memoranda contained Brady material and should be turned over to the defense before the hearing. (NOTE: Brady material is exculpatory information that’s required by law to be provided to the defense). Najera initially didn’t want to, afraid the Sheriff’s Department could sue them for defamation. She wanted Ceballos to revise the memo to exclude everything but Deputy Wall's statements. She changed her mind after talking with other attorneys in the office, and the memo was handed over as written, with the privileged work product removed. But according to Ceballos, she then made veiled threats of retaliation if he testified in a pro-defense manner at the hearing. (His brief says “candidly,” but given the circumstances, I’m extrapolating.) He did testify, the Court restricted his testimony to the statements made by the deputies based on various objections, and the affidavit was allowed to stand.

Afterwards, Ceballos was demoted back to trial deputy, had one of his big murder cases handed over to a junior colleague, was denied a promotion, and eventually involuntarily transferred to another, far less desirable office across town. In LA, that’s no joke. So Ceballos sues the office for retaliating against him in violation of his first amendment freedom of speech.

Until the middle of the twentieth century, a citizen had a right to free speech but not to a government job. As it was then interpreted, the First Amendment did not prevent public employers from taking employment actions on the basis of an employee’s speech, even if the speech was expressed outside the office and had no connection with the employee’s job. That meant that public employees could be forced to sign oaths of loyalty, and be forced to reveal their private memberships in political or other organizations. This changed in 1968, with Pickering v. Board of Education, 391 U.S. 563 (1968). Marvin Pickering was a public schoolteacher who was dismissed for writing a letter to a newspaper that criticized the school board’s handling of revenue-raising proposals and allocation of financial resources. In reviewing the case, the Supreme Court held that, in deciding whether an employment action in response to a public employee’s speech violates the First Amendment, a court must balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern” and “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Applying that test, the Court concluded that the First Amendment prohibited the dismissal of a public-school teacher for writing a letter to a newspaper that criticized school-board policies, because, in the circumstances of the case, the teacher was little different than a “member of the general public.” So we have one precedent: if a) it's a matter of public concern, and b) the employee is speaking as a citizen, then the Court must engaging in a balancing test to see which interest is more important.

The next time this issue came up was in Connick v. Myers, 461 U.S. 138 (1983). In Connick, Sheila Myers, an assistant district attorney, was informed that she would be transferred to a different section of the criminal court. Strongly opposed to the transfer, Myers prepared a questionnaire soliciting the views of her colleagues concerning office transfer policy, office morale, confidence in supervisors, and whether employees felt pressured to work in political campaigns. She distributed the survey at the office during work hours. Her employer deemed its distribution a “mini-insurrection” and an “act of insubordination” and discharged Myers. In reviewing this case, the Supreme Court stated "We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, . . . a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior." The Court found that the majority of the questionnaire consisted of merely personal concerns, and so had no first amendment protection. The exception was the issue of whether employees felt pressured to work on political campaigns. That issue was deemed sufficiently of public concern to warrant further deliberation. The Court then went on to do it's balancing test between her first amendment rights as an employee and the government's interest in promoting the efficiency of the public services it performs through its employees. To cut it short, the government won. This established the converse rule to Pickering.

The problem with Ceballos' case is that while speaking out agains police corruption arguably fits the definition of "an issue of public concern," the speech engaged in was part of his job. So arguably, he wasn't speaking "as a citizen" but as a deputy district attorney in the employ of the LA District Attorney's Office. So now what?

Ceballos' point: should his speech, which falls pretty squarely within the realm of public interest, be constitutionally unprotected for the sole reason that he spoke as part of his job? Does it make sense to require an employee to go outside his or her organization (for example, Ceballos could have gone to the press) instead? And could the school board in Pickering have obviated his first amendment protection by requiring all schoolteachers to state a position on the fundraising tactics at issue, then firing the ones who dissented from the party line? He also raises the issue of attorney ethics in his brief: how he's not just responsible for his conduct to his employer, but also to the bar which issues his license to practice, rendering his job-related duties also subject to public scrutiny. He points out that if he'd prepared the memos privately, a secretary had found it, and it had been used to demote him, he'd have first amendment protection under the government's analysis, something which seems rather odd.

The Government's point: (NOTE: In a very unlawyer-like fashion, I've mashed together the points of the petitioner's brief and the amicus brief. I presume any attorneys who actually read this stuff will go to the original text and sort it out for themselves.) Virtually everything a public employee does in the course of carrying out the requirements of his or her job ultimately is connected to the "public interest.” Thus the seed of a constitutional case is planted in nearly every task that every public employee ever performs. Requiring a case-specific balancing of the interests of the employee and the employer whenever an adverse employment decision can be connected to speech by the employee in the exercise of his duties is inconsistent with the commonsense realization that government offices could not function if every employment decision became a constitutional matter. Ceballos is asking the Court to virtually ignore the Pickering requirement that the speech be made as a citizen and not an employee, evicerating that portion of the rule and leaving only the requirement of it being related to "public interest." Since virtually everything is related to public interest in some fashion, this means everything will be constitutionally challengeable.

It appears from the follow-up SCOTUSblog post that "after a lively hour of argument, that in-the-office memoes or comments seeking to expose official misconduct may get little, if any, constitutional protection against retaliation."
Counting the votes that seemed likely to follow the public comments and questions, it appeared that Chief Justice John G. Roberts, Justice Kennedy, and Justice Antonin Scalia were most likely to accept a government argument that internal complaints -- even about matters of "public concern" -- would be put outside the First Amendment's umbrella. Those three, perhaps, could pick up fairly easily a fourth vote from Justice Clarence Thomas, although he said nothing. Kennedy was the most aggressive, telling a lawyer for a California prosecutor/whistleblower that her position would set up the courts "to supervise the constant dialogue in every agency in every government in the United States."

But, while it was evident that a majority probably would emerge against internal whistleblowing, it was by no means clear where votes 5, or 6, or 7 might be found. Justice Stephen G. Breyer, who was most eagerly looking for some limiting principle, might well provide a deciding vote, cast on narrower grounds. Suggesting he was caught between the claims made from each side, Breyer asked: "Is there a middle approach? If so, what?"

Breyer noted that "thousands of things" are discussed every day in government offices that are matters of "public interest," and said it "is hard for me to believe this is an area where no First Amendment applies." But, he said, the whistleblower's lawyer "only gives me that, in every situation, there would be First Amendment litigation" where a public employee made an internal challenge on a public question.

The other four Justices -- Ruth Bader Ginsburg, Sandra Day O'Connor, David H. Souter and John Paul Stevens -- were either hostile or skeptical to the notion that, if an employee spoke out internally on an issue that was within a normal work assignment, the First Amendment would not apply at all. Only when an employee blew the whistle "as a citizen" would there be any shield against retaliation, according to that approach.

Roberts apparently gave an interesting example: that a ruling for internal whistleblowing could mean that a Justice might face a First Amendment challenge if he or she fired a law clerk for preparing a memo suggesting that another Justice's "jurisprudence was wacky."

I find the fallback position in the amicus brief filed by the US Attorney's office interesting:
If the Court holds that a public employee does have a First Amendment interest in speech expressed in carrying out his job duties, the Court should make clear that it will ordinarily be easier to justify an employment action when the speech is of that type. Because the second part of the Pickering-Connick test focuses on the effective functioning of an employer’s enterprise, the employer should be able to defeat an employee’s First Amendment claim if it can show that, in saying or writing the things at issue, the employee was performing his duties in an inadequate or inappropriate manner.

When they're workable, I'm much more in favor of bright-line rules than balancing tests, simply because they clog the courts less. But philosophically, I'm not so sure a bright-line test is the best answer in this case: the public interest served in allowing public employees to properly expose corruption is quite strong. Under the government's rule, it appears officeholders can insulate themselves from whistleblowers by simply requiring them to report corruption as part of the job, and then firing them for it, unless I'm missing something? On the other hand, the government's correct, in that unless we're talking internal things like lunch breaks and computer use, just about everything a public employee does is connected to the public interest. If the public didn't have an interest in something, presumably they wouldn't have created a tax-payer funded position for someone to oversee it. (Yes, there are porkbarrel exceptions, but I'm not going there.)

So perhaps the split-the-baby rule is right here. We'll find out what they have to say by sometime next Spring.

No comments: