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February 28, 2005
Whistleblowing Assistant DA gets to US Supreme Court
The Supreme Court has another chance to tell the 9th Circuit how the 1st amendment works for public employees. Assistant DA Richard Ceballos sent a memo to his supervisor alleging that a sheriff deputy lied on a search warrant. Ceballos later filed suit claiming his superiors retaliated against him for this.
The last time the Supreme Court had a public employee 1st amendment case from the 9th Circuit the Justices reversed the 9th Circuit without even hearing oral arguments. Ouch. That was San Diego v. Roe (12/06/2004) [full text pdf] in which a police officer was discharged for selling videos of himself masturbating. The 9th Circuit actually thought that was protected by the US constitution. The Supreme Court's per curiam decision (a rare item) said it was "not a close case."
Now comes Garcetti v. Ceballos - certiorari granted February 28, 2005. [9th Circuit decision pdf] The 9th Circuit went through the drill of asking (1) whether Ceballos' speech was a matter of public concern [YES] and, if so, (2) whether his interests outweighed the public employer's interest [YES].
The real question? Whether his speech lacks constitutional protection because it was uttered in the course of carrying out his employment obligations.
9th Circuit Judge Diarmuid O'Scannlain, in a concurring opinion, argued that the 9th Circuit's jurisprudence in this area is flat wrong. (He couldn't know that the Roe case would be summarily reversed.) He traces it all to Roth v. Veteran's Administration, 856 F.2d 1401 (9th Cir 1988), in which the court said that when a public employee speaks on matters of public importance, that speech automatically comes within the definition of a matter of public concern.
My view: The 9th Circuit's Roe decision was off the wall. Its Ceballos decision seems to lose track of what the 1st amendment is for. It is not to protect employees in the conduct of their day-to-day employment duties. Perhaps there should be laws to protect assistant DAs from getting demoted when they tell the boss that a police officer rigged a search warrant. I could vote for that. But a constitutional right? I don't think so.
Posted February 28, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
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