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High court debates whistle-blower suits

Ruling could affect public employees' speech protections

From Bill Mears



Supreme Court
Merrill Lynch & Company Incorporated

WASHINGTON (CNN) -- The Supreme Court heard debate Tuesday on whether free-speech protections apply to government employees at their jobs.

Government workers who blow the whistle on illegal conduct risk becoming "unwelcome messengers" subject to retaliation by their bosses, the court was told in a free speech case that appeared to again deeply divide the justices.

"The First Amendment is not about policing the workplace," Cindy Lee, a lawyer for Los Angeles County told the court.

The Bush administration supports local officials. Deputy Solicitor General Edwin Kneedler said the government is unique because there is a "principle of public accountability" by top officials over "the right to control and direct the work of their subordinates."

The nine-member bench seemed to have trouble balancing the need for preserving discretion in many aspects of the workplace with the need to ensure those who expose wrongdoing are not unfairly punished.

At issue is what constitutional guarantees civil servants are entitled to in speech that is a routine part of their duties.

The stakes are high for the approximately 20 million government workers nationwide, including law enforcement personnel, who would be affected in their job duties by the high court's ruling.

The case involves Richard Ceballos, a deputy Los Angeles County prosecutor who investigated alleged misconduct by a sheriff's deputy accused of lying on an affidavit to obtain a search warrant.

After looking into a formal complaint by a defense attorney, Ceballos found evidence of misconduct and recommended to his bosses the criminal case be dismissed for that reason.

He was asked by his supervisors to tone down the wording of his memo, but the revised letter still contained the conclusion of "grossly inaccurate" statements made in the deputy's affidavit.

Despite that, prosecutors moved ahead with the case involving theft at an auto parts store. Ceballos said he was obliged to tell the defense of his conclusions. He testified about his investigation at the trial, which went in favor of the defendant.

Ceballos claimed his bosses later retaliated by demoting him, making threats, creating a "hostile" work environment and denying a promotion. He sued and a federal appeals court eventually agreed with him.

He attended oral arguments Tuesday but refused comment afterward.

Ceballos' attorney, Bonnie Robin-Vergeer, engaged in a spirited debate with several justices when she suggested workplace speech would be "chilled" without constitutional protections.

Justice Antonin Scalia particularly took issue with Ceballos' assertions. He asked, "You really need the Constitution to address all these complaints?" -- suggesting there are other internal and legal avenues to pursue.

Robin-Vergeer replied that when civil service employees witness or investigate police brutality, disaster preparedness failings and corruption, they need the full protection of the law so that "they should not be required to tell their supervisors only what they want to hear," for fear of retaliation.

"Neither should a supervisor be required to get a report from an employee that's way off base," Scalia replied. He said the supervisor would be unable "based on this to say, 'You're fired.' "

Both Scalia and Chief Justice Roberts questioned the facts surrounding Ceballos' assertion that the deputy made "grossly inaccurate" statements.

Other justices appeared to agree, with some limits.

"Who's going to decide?" asked Justice Stephen Breyer. "A constitutional court or a state court under state whistle-blower statutes?"

With constitutional challenges, he said, it would be "difficult to delve into this when other remedies are available."

Target audience: Alito

In some ways, Tuesday's arguments were directed at one person, Justice Samuel Alito, who has been on the bench only seven weeks.

That is because the appeal originally was heard in October, when now-retired Justice Sandra Day O'Connor was still a member of the court.

She stepped down January 31, before the opinion was completed, and under court rules could not vote. That apparently left a 4-4 tie, and the justices decided to rehear the case with Alito aboard as its the newest member.

Since the other justices already are well-versed in the case and may already have made up their minds, Alito's views are likely to prove decisive.

Liberal groups complained during his recent confirmation hearings that he has been overly deferential to the government in cases involving individual claims of discrimination and harassment.

Alito was an especially active questioner, probing lawyers on both sides of the practical implications for employees to challenge their supervisors.

He appeared at one point to favor the county, asking, "Aren't there terrible litigation problems" with such worker claims?

The high court has been back and forth on the issue of workplace speech in the past century. Justice Oliver Wendell Holmes famously wrote in a 1906 case that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."

But a 1968 ruling concluded that a schoolteacher could not be fired for writing a letter to a newspaper complaining about how the school board was spending the taxpayers' money. The justices said public employees have a right to speak out on matters of public concern.

Now the legal dispute centers on whether government workers speaking out internally on the job -- whether it was of the "public interest" or not -- deserve the same kind protection as those speaking out in public as citizens.

Justice David Souter questioned the government's assertion that the "public interest" would not be served by exposing some internal decision-making. Souter wondered whether the employer would be allowed to "do anything" by claiming the discretionary right to manage his or her personnel.

During the rare afternoon session, Justice Ruth Bader Ginsburg appeared to have trouble staying awake. She was more alert after a gentle hand on the shoulder and brief words by Justice David Souter, sitting to Ginsburg's right.

A ruling in the case -- Garcetti v. Ceballos (04-0473) -- is expected by late June.

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