Supreme Court's poorly reasoned "whistleblower" case
The decision of Garcetti v. Ceballos was issued today*, and proves once again how a bright line opinion can create more problems than it solves. Let's go through the basic facts, many of which are not mentioned in most analyses I've read on the web so far:
1. Ceballos is a lawyer in the Los Angeles (CA) District Attorneys' office. He serves as a warrant officer, who reviews warrants--and the challenges to warrants by defense attorneys representing persons accused of commiting crimes.
2. One day, Ceballos received a call from a defense attorney that a particular warrant for the defense attorney's client contained blatantly false information. The defense attorney told Ceballos a motion would be filed to supress the warrant. Ceballos researched the issue, consistent with his job, and prepared a memo to his superior that there were, in his view, blatant misstatements in the warrant--rendering the warrant, again, in his view, invalid.
3. An internal argument between Ceballos and his superiors at the DA's office ensured over whether to send the memo "as is" to the defense. A side note: Defense counsel in criminal cases are entitled to all evidence exculpating their clients. The supervisors at the DA's office forced Ceballos to remove his opinions and conclusions from the memo, but provide the factual basis for his opinions and conclusions to the defense counsel.
4. The defense counsel, upon receipt of the information, decided to call Ceballos at the hearing on the supression of the warrant. The trial court in the criminal case heard the evidence, including Ceballos' open, public testimony (but not his conclusions, which makes sense to me as a court, not a witness, make conclusions of law and fact--and let's not get into the hot topic of experts who testify to ultimate conclusions, shall we?).
5. At the end of the hearing the trial court found that, while the warrant contained errors, it was not enough to invalidate the warrant.
6. Ceballos then filed a civil service grievance after his supervisors started taking cases away from Ceballos and ultimately transfering him from a larger branch of the Los Angeles County court system (Pomona) to a small branch (El Monte).
7. Ceballos then spoke publicly at a Mexican-American Bar Association function about general issues of misconduct at the DA's office. This fact is important as to why we should not be so concerned over the holding in the Supreme Court majority opinion, but let's hold our thoughts on that for a moment, shall we?
8. Ceballos' grievance under civil service procedure was then denied, which means his next level of relief should have been to seek a writ of mandate to the court system in California, seeking relief for wrongful demotion or retaliation. Please note that California cases are pretty clear about this direct, though limited, relief these days, in case anyone is wondering.
9. Instead of going through a writ of mandate procedure, however, Ceballos decided to sue in federal district court. In that separate lawsuit, Ceballos claimed, via the 14th Amendment right of a citizen to receive due process from a State (in this case, CA), that his First Amendment right to free speech had been denied by his employer. His remedy? The same relief in his retaliation or wrongful demotion grievance.
10. The District Court dismissed his lawsuit. Then, the 9th Circuit Court of Appeals reinstated his lawsuit. Then, the US Supreme Court today, in a 5-4 opinion, decided to send the case back to the district court to see if there is sufficient evidence that the retaliation was the result of his speech to the Mexican-American Bar Association.
But admittedly, the Supreme Court is less than clear in why they are sending it back to the district court for further hearings.
The Supreme Court held that Ceballos' internal fight over the memo should remain internal because this was a job-dispute that should not rise to a constitutional (First Amendment) end run around an otherwise ordinary employment case. What I found significant is that the court, in the criminal case, heard the evidence from Ceballos and other evidence--yet still found the warrant valid. This is not like a teacher voicing a public citizen's concern over racism at a school who gets demoted or fired. While an employee may sue for retaliation after being mistaken about a complaint one made, that does not give the person the right to sue for First Amendment violations when one is mistaken.
The majority is correctly concerned about avoiding micromanagement of managerial discretion, which Justices Souter and Breyer admit, in their respective and different dissenting opinions, is a sound public policy that must be considered by a court before issuing a ruling in such matters. Such concern is also well settled in California employment law, where California courts have held managers should be given more discretion to discipline or even terminate employees who exercise the type of authority Ceballos had--in order to promote team work and camraderie among managers or people with high levels of discretion in the work place. See: Pugh v. See's Candies, Inc. (1988) 203 Cal. App. 3d 743, 752.
Overall, I disagree with the majority's reasoning, and agree with Breyer's dissent more than Souter's. I agree with the dissenters overall that the majority opinion was unnecessarily undermining the principles set forth in Pickering v. Board of Ed., 391 US 563, 568 (1968), which held that there must be a balance between the right of a public employee to comment on public matters and an public employers' right to control the policy within its departments.
The majority get lost in analyzing whether Ceballos was acting as a "citizen" or an "employee" in the "memo dispute" when the majority should have by-passed that conundrum. As Justice Souter's dissent stated, the majority's analysis gives Ceballos more rights if he went to the LA Times with his memo dispute than by going through official channels. The majority opinion tries to say the distinction of "citizen" vs. "employee" is not its foundation for its opinion, but it is hard to disagree with Souter on this. Yet, the majority's discussion of this distinction is reasonable, though not a sufficient foundation for a very good reason: Ceballos is suing as an employee and seeking remedies as an employee.
However, the majority decision remains suspect because Ceballos appears to be suffering at his work place whether he speaks publicly or privately: In the facts summarized above, Ceballos also said he was retaliated against for speaking as a citizen, at the Mexican-American Bar Association, about general issues of public concern. The majority of Supreme Court justices, therefore, could have easily said: "We are concerned with interfering with the management of the DA's office in LA, but the pattern of retaliation continued against Ceballos regardless of whether he went outside or inside the system. Thus, the memo and internal dispute are merely further evidence of the retaliation." This way, the Supreme Court could have avoided painting with too broad a brush--and could have allowed the district court another chance to balance the equities through the test previously set forth by the US Supreme Court in Pickering.
Breyer's dissent correctly understood that both the majority and Souter overshot their arguments in favor of their respective positions. However, Breyer could have made more clear his procedural point: What Ceballos is really seeking here is an extra shot at a wrongful demotion and retaliation case, after losing his grievance procedure and not appealing it through a writ of mandate (the usual method under California law for civil service employees). Instead, Ceballos filed a separate lawsuit against his employer using the "First Amendment" to pursue a wrongful demotion and retaliation action. The First Amendment is about speech, not employment rights (particularly with public employees who have civil service protections). However, as with most things in life, employment rights may spill over into the First Amendment--and vice versa. That is why Pickering's balancing test is so important to uphold and why broad brush flourishes about when someone is a citizen or an employee are counterproductive to a district court's effective sifting through the facts of a given case.
All three opinions (majority, Souter's and Breyer's) are handing the matter back to the district court. Why the majority didn't agree with Breyer's more narrow holding and why it didn't see that a new bright line of "citizen" vs. "employee" the Court was painting is obscuring rather than enlightening is something I don't understand. I am not that concerned at this point, however, because the majority opinion states in pertinent part:
"Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions....
"Second, JUSTICE SOUTER suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value...There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."
What does the above quote mean? Well, I think it means there is plenty of reason to think that subsequent decisions will be distinguishing this case on its limiting facts and that, over the years, it will be eventually tossed aside. In the meantime, it will do damage to some whistleblowers, though less than those critical of this decision may presently believe. The majority opinion is poorly argued, however, and creates more uncertainty than enlightenment in the law.
* The link is from the Official US Supreme Court web site. It won't remain there very long, however, as the link is to recent slip opinions of the Court.
ADDENDUM: I am, upon reflection, convinced the only reason Ceballos sued in the federal district court rather than seeking the writ of mandate is that the latter is a very limited remedy. The problem is really the California Supreme Court's rulings giving public employees less than full remedies for wrongful termination owing to public employees having unions and/or civil service protections. This is why hard facts make bad law more often than not. The hard fact of public employees not having full common law rights to challenge wrongful employer practices led to a stretch for a First Amendment-based employee rights case.