Garcetti v. Ceballos
rosentha at chapman.edu
Thu Jun 1 10:53:20 PDT 2006
Bob Sheridan's post assumes that the inquiry into whether the warrant affidavit was false is binary. Litigators, however, cannot approach disputes of fact in that fashion. Evaluating the accuracy of an affidavit is a probabalistic business. It is generally properly left to the adversarial process. Ceballos, however, was unwilling to trust the adversarial process; he wanted the office simply to abandon the prosecution, even though defense counsel and the judge were fully competent to evaluate his concerns (and the judge ultimately rejected Ceballos' view of the warrant affidavit). I do not see why that makes Ceballos a "good example" of anything. The people of Los Angeles County are entitled to elect a district attorney who wishes to vigorously pursue all nonfrivolous cases, and that district attorney is entitled to insist that his staff adhere to such a policy. I see no reason why he should be immune from discipline if his superiors decide that Ceballos is too quick to throw in the towel in litigation.
From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
Sent: Thu 6/1/2006 10:31 AM
To: Mark Graber
Cc: Rosenthal, Lawrence; conlawprof at lists.ucla.edu
Subject: Re: Garcetti v. Ceballos
I think it is correct that there is a point that we haven't quite held
up for examination yet, but have now approached with Mark's post.
Here's another example:
Assume that an elected official heads a public office such as county
prosecutor. S/he has campaigned and won election on a promise to
enforce the law this way, not that, to go after violent and gang crime,
say, as opposed to devoting limited resources to obscenity and vice.
Assume that the office is populated by holdovers from the previous,
defeated, administration, and the new DA wants to clean house and
appoint new supervisors who now take their posts. The new supervisors
see that some of the line deputies and subordinate supervisors are set
in their old, defeated ways. And thus people in a similar position to
Mr. Ceballos are moved closer to the door. Is there any constitutional
problem with this? The elected DA is following the mandate he
campaigned and won on. Is this any different than Pres. Bush, for
example, populating his top discretionary, political offices with
Is the answer different when the position of the assistant is civil
service, not political?
Suppose the conduct of the assistant public employee doesn't have much
if anything to do with the political flavor of the office, but, rather,
as in Ceballos's case, the alleged truthfulness of a warrant affidavit
submitted by a police officer. But even the question of what to do
about that, an allegedly false affidavit, will be affected by the
world-view of the elected official, who may regard police inaccuracy as
forgiveable, while Mr. Ceballos does not. This is where Mr. Ceballos
wants to rest his First Amendment claim, I should think. He wants to
assert that the truth is a greater value than the world-view of his
immediate supervisor or the elected boss who has the right to replace
him at will in a non-civil service office. This is the protection that
the Garcetti case coldly denies him.
So, we have Mr. Ceballos trying to set a good example for his
subordinates as an honest attorney serving the truth and good
government, and the Supreme Court is giving him hemlock for his trouble.
What seems so difficult to swallow about this case, even allowing the
elected official in a non-civil service office to fire subordinates at
will with near impunity, is that the among the public offices most
affected are those employing attorneys who have spent a great deal of
effort in learning the distinctions between right and wrong that we want
them to be mindful of.
These public attorneys enjoy full First Amendment freedom until they
report to work, daily. It returns to cloak them when they go home. But
not when they need it most, at work.
I wonder whether public service attorneys would be well-advised to
include a paragraph of boilerplate on all of their inter-office
stationery stating (or prayerfully claiming) that the writing herein is
submitted not just as an employee but as a citizen of the United States
and is entitled to full state and federal constitutional protection.
Mark Graber wrote:
> I think to some degree some of the comments may be talking past each
> other. I take it that there is general agreement that government
> employee may be fired for expressing opinions in the line of duty that
> are misguided or inflammatory, and that government employers must have a
> good deal of discretion when determining what opinions are misguided or
> inflammatory. The issue is, as I read Garcetti, whether there is any
> limitation to that discretion. Consider the following example. A
> government employee in, say, the tax department is asked to give a tour
> to a group of visitors. The employer specifically declares, "answer
> their questions to the best of your ability." Suppose the employee is
> asked "what party do you belong to." May he or she be fired for
> responding "Republican." May he or she be fired for refusing to answer
> the question, in violation of the superior's orders. Does this not
> suggest that when a government employee is put in a situation by their
> employer where they must express an opinion, they should be
> constitutionally protected if a reasonable person would conclude their
> opinion was reasonable and civilly given.
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