Garcetti v. Ceballos: judicially muzzling the voices of public sector employees.

• Author: Roesler, Beth Anne

The free speech rights of public sector employees, virtually nonexistent in the earlier part of the twentieth century, experienced a revival with the United States Supreme Court decision in Pickering v. Board of Education. This decision required a balancing of interests between the public employee and the government employer. The holding in Garcetti v. Ceballos, however, placed a new threshold test on public employee speech, greatly diminishing the effectiveness of the balancing test. Further, the holding unduly expanded the powers of the government employer at the expense of its employees and the general public.

1. INTRODUCTION

   Freedom of expression is among our most cherished freedoms, (1) but for public sector employees it is a now freedom that is unprotected. (2) In the 2006 decision of Garcetti v. Ceballos, (3) a sharply divided United States Supreme Court added a new prong to the public employee speech standard. (4) In effect, this subtest imposed a threshold question of whether speech was made pursuant to the public employees official duties. (5) In this decision, the Court examined four decades of public employee speech precedent and concluded that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." (6) As a result, more than twenty-one million American public sector employees (7) are now beyond the protections of the First Amendment if they are faced with retaliation from a supervisor for speech made within the scope of official employment duties. (8)

   The First Amendment explicitly provides that "Congress shall make no law ... abridging freedom of speech." (9) In application, this guarantee has never been strictly interpreted by the United States Supreme Court. (10) Nevertheless, freedom of speech is considered fundamental to individual liberties in Western society, and has been characterized as "the matrix, the indispensable condition of nearly every other freedom." (11) Even so, this fundamental right frequently causes conflict between public employee rights and government needs. (12)

   In 1892, the Massachusetts Supreme Court held in McAuliffe v. Mayor of New Bedford (13) that public employees had no right to constitutional protection under the First Amendment. (14) This case became the foundation for public employee speech rights, and influenced this area of the law for several decades. (15) This landscape began to drastically change, however, with the advent of a series of freedom of association cases in the 1950s and 1960s. (16) These cases opened the door for the landmark decision in Pickering v. Board of Education, (17) which presented a new standard to determine public employee free speech rights by adopting the amorphous balancing test. (18) Subsequent cases served to narrow and refine the Pickering test by focusing on the methods used and factors employed in administering the balancing test. (19) Through the progeny of Pickering, the Supreme Court has effectively narrowed the standard to ease administration and application in the lower courts, but it has nevertheless left the basic standard relatively intact. (20)

   The opinion in Garcetti departed from previous decisions by establishing a per se rule that imposed new restrictions on public sector employee speech. (21) As a result, millions of Americans were categorically excluded from protections offered under the First Amendment. (22) This note will analyze the Garcetti decision. First, this note will review the facts and procedure of the case, including the reasoning behind the district court, appellate court, and Supreme Court decisions. (23) Second, this note will examine the history and development of public employee speech protection of the First Amendment. (24) Third, the note will focus on the expansion of government power through the Garcetti decision. (25) The analysis will advocate the need for exceptions for public employees whose professional or constitutional obligations compel speech, and conclude by arguing that enhancing statutory whistleblower protections at both the state and federal level is necessary to protect public employees rights to speak on matters of public concern. (26)

2. FACTS AND PROCEDURE

   1. STATEMENT OF THE FACTS OF GARCETTI V. CEBALLOS

      Richard Ceballos joined the Los Angeles County District Attorneys Office in 1989. (27) After ten years, he was promoted to the position of calendar deputy. (28) In February 2000, Ceballos was contacted by a defense attorney requesting that he investigate possible inaccuracies contained in an affidavit used to obtain a search warrant in a pending criminal case. (29) Although the case was assigned to one of Ceballoss deputy district attorneys, Ceballos considered the request routine and decided to conduct the investigation himself. (30) After reviewing the affidavit and visiting the crime scene, Ceballos determined that the affidavit clearly misrepresented the truth. (31)

      Ceballos sought an explanation from the Los Angeles County deputy sheriff who obtained the warrant, but was unsatisfied with the deputys response. (32) He then brought the findings to the attention of his supervisors, Carol Najera and Frank Sundstedt, and wrote a disposition memorandum detailing his concerns and recommending that the case be dismissed. (33) Sundstedt felt that the memorandum was too accusatory of the deputy sheriff and instructed Ceballos to revise the memorandum. (34) Subsequently, a meeting was held with Ceballos, Sundstedt, Najera, and representatives from the sheriffs department including the warrant affiant. (35) After a heated meeting, Sundstedt felt dismissal of the case was inappropriate and recommended that prosecution be continued, pending the outcome of the defense motion to traverse. (36) With respect to the pending motion, Ceballos believed that Brady v. Maryland (37) required him to turnover his memorandum to defense counsel. (38) Najera ordered Ceballos to write a new memorandum to defense counsel containing nothing but the deputy sheriffs statements, but Ceballos decided to use the existing memorandum with his work product redacted. (39) The defense counsel subpoenaed Ceballos to testify regarding his investigation of the affidavit at the motion hearing. (40) Ceballos maintained that Najera threatened to retaliate against him "if he testified the affidavit contained intentional fabrications." (41) Despite Ceballoss testimony at the hearing, the defense motion was denied. (42)

      Najera and Sundstedts alleged employment retaliation actions occurred following the suppression hearing. (43) After the alleged retaliatory incidents, Ceballos initiated an employment grievance. (44) The grievance contended that he had been reassigned to a trial deputy position, that he had been told to transfer to another branch or be reassigned, and that he had been denied a promotion. (45) While this grievance was pending, Ceballos spoke at a Mexican-American Bar Association (MABA) meeting regarding the sheriff departments conduct in the criminal case. (46) Just two days after the MABA meeting, the grievance was denied based on a finding that Ceballos had not been retaliated against. (47)

      Ceballos then filed a claim under 42 U.S.C. section 1983 (48) in the United States District Court for the Central District of California against Sundstedt, Najera, Garcetti, and the County of Los Angeles. (49) Ceballos alleged that the retaliatory actions that had been taken against him violated his First and Fourteenth Amendment rights. (50) Ceballos sought compensatory and injunctive relief. (51) The county defendants moved for summary judgment, claiming that no retaliatory actions had been taken against Ceballos and that all actions taken were easily explained by legitimate staffing needs. (52) The defendants further contended that the memorandum was not protected speech under the First Amendment. (53)

   2. PROCEDURAL HISTORY

      1. District Court Action

         The county employee defendants moved for summary judgment, and the district court dismissed the section 1983 claims. (54) The district court asserted that the disposition memorandum was a "professional evaluation in a pending criminal case" and that Ceballos had acted not as a citizen but within his specified job duties. (55) Further, the court stated that while "an important public interest [exists] in excluding perjured evidence from court proceedings ... the mere significance of that issue does not establish that Ceballoss views addressed an issue of public concern for purposes of the First Amendment, [simply] because ... he wrote it as part of his job." (56)

      2. The Ninth Circuit: Public Concern Outweighed Defendant's Administrative Interests

         On appeal, the Ninth Circuit reversed the district courts ruling, holding that "Ceballoss speech addressed a matter of public concern and that his interest in the speech outweighed the public employers interest in avoiding inefficiency and disruption." (57) To determine whether Ceballoss speech was protected under the First Amendment, the court first examined whether the speech was a matter of public concern. (58) Relying on previous precedent, the majority found that an employees right to First Amendment protection could not be rejected "simply because his efforts to expose wrongdoing were included in reports written pursuant to his employment duties." (59) Balancing Ceballoss interests against the administrative interests of the county defendants, the Ninth Circuit determined that there was no showing of office disruption or inefficiency, thus tilting the balance in Ceballoss favor. (60)

         Judge O'Scannlain wrote a special concurring opinion, agreeing that Roth v. Veteran's Administration of the United States (61) controlled the Ninth Circuits decision, but that the Roth result was incorrect and should be overturned. (62) Judge O'Scannlain...