Sunday, June 04, 2006

Ceballos SCOTUS Finding

George Will Op-Ed regarding the Ceballos finding that overturns (no surprise) a 9th Circuit Court finding.
Last Tuesday, in a decision of special interest to America's 22 million public employees, the Supreme Court, with yet another 5-4 ruling, told the 9th Circuit Court of Appeals, which is always entertaining but frequently reversed (16 times last term), not to neglect half of those standards. And it told Richard Ceballos, in effect, that Holmes had half a point.

In 2000, Ceballos, a deputy district attorney in Los Angeles -- where the Ramparts Division police-corruption scandal was reverberating -- became convinced that police had made ``grossly inaccurate'' statements to obtain a search warrant. Ceballos wrote a heated memo to his supervisors, one of whom asked him to moderate it. He did, but when they proceeded with the criminal case, he informed the defendant's attorney, who subpoenaed Ceballos, whose testimony at a hearing favored the defense. As a result, Ceballos says, he was punished by demotion, reassignment and various indignities. These, he charged in a suit against his superiors, violated his First Amendment rights.

The 9th Circuit sided with Ceballos, citing the fact that the subject of his memo was a matter of "public concern.'' But, Kennedy noted, the 9th Circuit did not consider whether Ceballos' speech was made in his "capacity as a citizen.'' And: "We hold 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.''

By ignoring the question of whether an employee was or was not speaking "as a citizen,'' the 9th Circuit's approach would, Kennedy wrote, produce a huge "displacement of managerial discretion by judicial supervision.'' It would "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business,'' a flood of "judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.''

I must admit that the finding does make it difficult for public employees to make official statements when they go near or past what management considers their boundaries. It also challenges them in whistleblower situations.

The decision does strike me as correct. Though I do believe that this will weaken the whistleblower protections.

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