The Mysteries of Ceballos
on Jun 1, 2006 at 8:57 am
It’s been a fairly uneventful Term, at least with respect to high-profile or jurisprudentially significant constitutional decisions. (FAIR being an obvious exception — with decisions still pending in Hamdan (which might deal with some constitutional questions) and the Texas and Vermont election-law cases.) But Monday’s decision in Ceballos certainly has prompted a lot of varied reactions and interesting questions. In addition to Jack Balkin’s and Kim Roosevelt’s posts at Balkinization (and the comments on both), and my response to Kim, I highly recommend many of the thoughtful comments to my posts below, here and here.
Also, here (below the “fold”) are some excerpts from an interesting Ceballos thread on the CONLAWPROF listserv:
Larry Rosenthal:
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 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 opinions 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.
Bob Sheridan:
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?
Rosenthal:
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.
Elizabeth Dale:
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 is 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.
