Garcetti v. Ceballos

Thu Jun 1 06:57:01 PDT 2006

In my view, Elizabeth has the ethical calculus exactly backwards.  The prosecution discharged its ethical duty to disclose exculpatory evidence. But Ceballos also had an ethical duty to zealoously advance the interests of his client despite his personal belief, and he was unwilling to trust the judge and the defense counsel to analyze the facts correctly.  He was also unwilling to respect his superior's decision to let the judge decide whether the (rather minor) inconsistencies amounted to material misrepresentations of fact that would void the warrant.  Ceballos told the judge (and the public) nothing they didn't already know, and he breached his duty to his client.  To compare this to a case in which a prosecutor reveals  Brady information that his superior wishes to suppress, or who exposes police wrongdoing of which the public was unaware, is a serious misundersanding of what was going on in this case

Larry Rosenthal
Chapman University School of Law.  
________________________________

From: Elizabeth Dale [mailto:edale1 at bellsouth.net]
Sent: Thu 6/1/2006 4:50 AM
To: Rosenthal, Lawrence; Bob Sheridan
Cc: conlawprof at lists.ucla.edu
Subject: Re: Garcetti v. Ceballos

I recall having a conversation with a colleague during the Alito nominations
and proposing, as a thought experiment, that we try to imagine the
possibility of a Democratic president winning in 2008 and nominating a
union-side labor lawyer to the Supreme Court We both convulsed with
laughter, doubtless demonstrating something sad about the academic sense of
humor, to say nothing about the times.

And frankly, while the Garcetti opinion strikes me as being an amazingly
incoherent one on many fronts, it troubles me most for the view it offers of
employee relations. This is a case where the majority is saying that
subordinates should not talk back and should not question decisions. I
agree, talking back and questioning supervisors are not whistleblowing, but
I am not sure they are without virtue, or, in the case of public employees,
not entitled to some constitutional protection.

It is true, employees who complain and question things all the time are
royal pains. It is true, work is more efficient if everyone follows orders.
But it is also true that sometimes efficiency has to give way to other
social and workplace goods. And it is sometimes even true that people who
complain or question are right.

More to the point, lawyers have special ethical obligations, and while those
obligations require them to do what is best for their clients, that raises
questions, it doesn't solve them. In the case of a prosecutor, the ethical
obligations are particularly complex, since, as I recall, they have ethical
obligations to the people and the legal system,  not merely a supervisor.

One problem I have it that this may be just a case in which, as Larry
suggests, the majority found the plaintiff annoying and decided not to let
someone who is a troublemaker turn a disciplinary action into a federal
case. The case can be read that way.  It can also be read the way both
Justices Souter and Breyer suggest in their dissents, as reaching into the
realm of employee speech so far that it undermines professional canons of
ethics in the case of lawyers and academic freedom (which is, after all,
essentially a professional ethic) in the process.

If it is the former, then the problem is it is so badly written it appears
to be the latter. If it is the latter, it strikes me as a really troubling
case, on First Amendment grounds and for what it says about the current
Court's view of employment relations, and particularly supervisory authority
and subordination.

I guess the new rule is that professional employees working for government
have a professional obligation to try to do what is right, but they have no
right to try to be right on the job. At least where being right appears to
entail disagreeing with a superior.

There's a public, social cost to that, if that is, indeed, the new rule. And
I say that not merely as a public employee, but as a former civil rights
attorney who wished that just sometimes some prosecutors might have
considered tryng to stop overreaching or fake warrants. Or bad arrests or
interrogations. There were a few bad apples in the CPD, Larry, and they got
away with quite a bit for quite a while because no one complained.

Elizabeth Dale
University of Florida
Associate Professor, Legal History, Dept of History
Affiliate Professor, Legal History, Levin College of Law

PO Box 117320
Gainesville, Florida 32611

352-392-0271
edale at history.ufl.edu
http://plaza.ufl.edu/edale

----- Original Message -----
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
To: "Bob Sheridan" <bobsheridan at earthlink.net>
Cc: <conlawprof at lists.ucla.edu>
Sent: Thursday, June 01, 2006 1:15 AM
Subject: RE: Garcetti v. Ceballos

Perhaps some of the Court's language is a bit broad, but not by much.  As I
read the opinion (and especially its effort to preserve Givhan), it rejects
Pickering balancing only for employees whose job it is to evaluate the
performance of others.  If supervisors think that such employees are doing a
bad job of evaluating others, they should be free to impose discipline
without running the risks inherent in ad hoc balancing.  Otherwise, every
time a police internal affairs investigator who supervisors believe is too
quick to draw adverse inferences about police officers loses a promotion or
is discharged, there will be litigation risk.  And in the real world, it is
much harder to fire someone when there is litigation risk; the lawyers
insist on enormous documentation that few public employees have the time to
prepare.  When an employee actually exposes government misconduct that is
being suppressed from the public's view, I think it likely that the Court
will distinguish this case and preserve Pickering balancing.  In such a
case, the employee is doing more than merely offering his opinions about the
performance of others.  In such cases, the concern in Landmark (or New York
Times) about exposing government misconduct to public view would be present;
but it is not in this case.  Ceballos' opinions about the performance of the
police have too little First Amendment value to justify ad hoc balancing or
any persuasive reliance on Landmark Communications and its ilk; but had
Ceballos exposed an effort to conceal Brady material, the Court would find a
way to characterize his conduct as going beyond the mere "performance of
duty" that does not trigger Pickering balancing.  But the worst you can say
about this case is that appalling facts, involving an amazingly
insubordinate and officious public employee who thought that justice would
never be done unless the judge heard his perspective on things, makes for
slightly-too-broad law.

________________________________

From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
Sent: Wed 5/31/2006 9:07 PM
To: Rosenthal, Lawrence
Cc: conlawprof at lists.ucla.edu
Subject: Re: Garcetti v. Ceballos

Which makes it all the harder to understand why the Court wanted to
carve out yet another categorical exception to the FA protection of
expression.  It is difficult enough to police the borders of other
islands of categorical unprotection.  This particular island seems made
of quicksand and the borders difficult to discern, particularly when, in
another case, for example, if the assistant prosecutor were to deal, not
in opinion, but in matters of asserted factual truth on matters of
public concern, two high-value cores of FA jurisprudence absent some
compelling governmental interest.  Reputation of juvenile judges was not
held to be so compelling in Landmark Communications, nor juvenile
rehabilitation in Daily Mail.  The value in Ceballos seems to be the
need for governmental control of employee speech, held to be worthy of
categorical protection beyond that afforded by Pickering balancing.
Why?  Because Ceballos, intolerably, won the balancing test below?  Or
because governmental employers really, really, need such protection and
control?

rs
sfls

Rosenthal, Lawrence wrote:
> As a former supervisory attorney in a government law office, perhaps
> unsurprisingly I see absolutely no First Amendment interest at stake in
> this case.  Ceballos was not a whistleblower, if that term is to have any
> meaning.  He was not disclosing government misconduct; there is no claim
> that any exculpatory information had been concealed from the defense.  The
> defense counsel and the judge were fully capable of evaluating the
> evidence relating to the warrant affidavit which troubled Ceballos.  In
> his memorandum and subsequent testimony, Ceballos was disclosing his
> personal opinion that the evidence relating to the warrant affidavit
> warranted invalidation of the warrant -- undermining the contrary view of
> his supervisor.  Brady, however, does not obligate a prosecutor to
> disclose his personal opinions about the decisions of his supervisors; it
> mandates disclosure only of exculpatory evidence, not exculpatory opinions
> of someone in the supervisory chain.  Moreover, the rules of professional
> conduct prohibit Ceballos, like any attorney, from permitting his personal
> views to undermine his ability to advance the interests of his client, and
> under California law, it is the District Attorney and not Ceballos who
> gets to determine what the position of the client will be.  Nor does the
> public does need Ceballos's help to evaluate the defense's allegation of
> police misconduct -- that is what the judge is for.  Ceballos was just an
> officious intermeddler unwilling to respect the contrary opinionz of his
> supervisor.  A true whistleblower -- someone who is trying to alert the
> public the government misconduct which his superiors has concealed -- may
> well be entitled to First Amendment protection under Pickering balance,
> but that is not what Ceballos did.
>
> Larry Rosenthal
> Chapman University School of Law
>
>
> Message: 3
> Date: Tue, 30 May 2006 17:52:57 -0400
> From: "michael curtis" <curtism at bellsouth.net>
> Subject: Re: No First Amendment Protection for (Most)
>         Employees'Official-Capacity Speech the perils of a news report
> To: "michael curtis" <curtism at bellsouth.net>,
>         <conlawprof at lists.ucla.edu>,    "J. Noble" <jfnbl at earthlink.com>
> Message-ID: <00e601c68433$69944100$1805fea9 at MCurtis>
> Content-Type: text/plain; charset="iso-8859-1"
>
> Re: No First Amendment Protection for (Most) Employees' OContrary to good
> sense,  I wrote before reading the opinion & based on a somewhat detailed
> news account that misled me.  The speech was to a superior, not to the
> public.  The opinion aparently reserves the question of whether there is
> still some Pickering protection if instead the public employee holds a
> news conference about government wrongdoing. The next step may be to
> eliminate Pickering protections there (to the extent that there are any),
> but the step I wrote about was not the one taken in the case.  Hmmmm.  As
> anyone, like me, who has read accounts of legal proceedings in which he
> was a lawyer should know, many news accounts get it wrong.
>
> Still, would a press conference rather than speaking truth to the
> immediate boss really have held more promise of First Amendment
> protection?  It would certainly be a lot more disruptive of working
> relations.  I would have thought telling the immediate boss he was
> seriously wrong would have had more protection, because it would be less
> disruptive of working relations than going public.  So this case may not
> be a good omen for the admittedly complicated problem about which I (too
> quickly) wrote.
>
> Protection for job related employee speech of public concern may have to
> come (if at all) from the legislature or from state supreme courts--as to
> state employees.
>
> Michael Curtis
>   ----- Original Message -----
>   From: michael curtis
>   To: conlawprof at lists.ucla.edu ; J. Noble
>   Sent: Tuesday, May 30, 2006 3:46 PM
>   Subject: Re: No First Amendment Protection for (Most)
> Employees'Official-Capacity Speech
>
>
>   Another oddity.  According to democratic theory (see, Marbury) the
> people are the sovereign, and the president, et al are their agents or
> servants.  (Admittiedly the metaphor is imperfect.)  If you see serious
> governmental misconduct, you can tell the agent above you, but you can't
> tell the boss.  But by the theory, public employees should owe a fiduciary
> duty to the public, who is the ultimate boss.  By this approach the duty
> it owed to the elected or appointed agent. The current court seems to be
> moving toward an elite democracy model, by which the people (from heavily
> gerrimandered districts that prevent real elections often), choose their
> President, congressmen, etc. but after that are not too much entitled to
> know what their elected elite is up to--at least if the only people who
> can tell them are government employees.  Are they ordered to fake the
> numbers on the cost of some program.  Mum is the word.  Are reports on
> global warming edited to tone them down to the poi!
>  nt of vacuity.  Mum is the word.  Is the government producing fake news
> accounts with fake newsmen, sent to local TV stations.  Mum is the word.
> Of course, the popular soverignty model is an ideal which would inevitably
> be compromised in application.  This strikes me as going beyond that.
> Justice Kennedy has helped us to have pretty strong protection for
> sexually oriented expression--and I agree with him on that.  But as to
> public employees and matters of public concern related to the job, the
> commitment to free speech seems to be trumped by the elite democracy
> model.  Sex and circuses.  Perhaps the Court is reflecting the mass media
> world.
>
>   Michael Curtis
>     ----- Original Message -----
>     From: J. Noble
>     To: conlawprof at lists.ucla.edu
>     Sent: Tuesday, May 30, 2006 3:09 PM
>     Subject: Re: No First Amendment Protection for (Most) Employees'
> Official-Capacity Speech
>
>
>     At 11:10 AM -0400 5/30/06, Marty Lederman wrote:
>       So, it appears that if one's duties are to expose wrongdoing in the
> workplace, such exposure is entitled to no constitutional protection, but
> that if an employee whose duties do not involve such whistleblowing makes
> the exact same complaint, then Pickering/Connick analysis still applies. A
> somewhat odd result, at least on first glance.
>
>
>     Isn't this the key: "The fact that his duties some-times required him
> to speak or write does not mean his supervisors were prohibited from
> evaluating his performance." If I had an associate prepare a memo on Mr.
> Ceballo's legal recourse after his termination, and the associate came
> back with a memo identifying the First Amendment claim, but overlooking
> his civil service protection and/or retaliatory discharge claim, I might
> decide he wasn't up to the job. Should the First Amendment protect a
> government employee's right to under-perform because his job is writing
> memos? Does it make a difference that the speech is whistle-blowing,
> rather than an awful appellate brief? Does it matter whether the
> whistle-blower's charge is credible or plainly delusional?
>

>
>     There's another issue buried in the facts to which you might provide
> some insight as a former government lawyer. Ceballo claimed he was fired
> for writing the memo, and the fact was assumed for purposes of summary
> judgment. But the facts disclose that he was fired after testifying for
> the defense regarding his reasons for concluding that search warrant
> affidavit was falsified. That seems the more likely cause of his
> termination than a disregarded memo to the boss. I assume he was
> subpoenaed, and couldn't be fired for giving truthful testimony.
>
>
>     However, if he was my investigator, I could probably block his
> testimony as to his impressions and conclusions under the work-product
> privilege, even if he wanted to testify after I fired him for sharing my
> work product with opposing counsel. I assume that the government's work
> product is also privileged, and that unauthorized disclosure to opposing
> counsel is a firing offense. But is there a different First Amendment
> issue when the investigator is subpoenaed to testify, and the government's
> objection, sustained by the court, is state action that suppresses speech?
>
>     John Noble
>
>
> ----------------------------------------------------------------------------
>
>
>
>
>
> ------------------------------------------------------------------------
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.

_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.