James J. Kilpatrick

In the case of Richard Ceballos, the Supreme Court last week through indecision found decision out. The court held, in effect, that public servants must be granted power to serve the public through some orderly chain of command. It's hard to argue with that proposition.

Justice Anthony Kennedy sketched the facts in his opinion for the court. Ceballos was a deputy district attorney in Los Angeles County, Calif. He was not at the bottom of the totem pole, but he wasn't near the top either. He did have some authority to influence the disposition of criminal cases. One day, six years ago, a defense attorney came to him and asked for a review of the preliminary case against his client. It appeared that some critical evidence might have been obtained through serious misrepresentations.

Ceballos became convinced that the evidence was too shaky to take to trial. He twice relayed his conclusions to his principal supervisor, Frank Sundstedt. Finally and formally, he recommended in writing that the charge be dismissed. Sundstedt called a staff meeting. The participants sharply disagreed. In the end, Sundstedt decided to go ahead with the case.

Defense counsel then moved formally to challenge the evidence. The trial court held a hearing. To the considerable embarrassment of the district attorney's office, the defense summoned Ceballos as a witness. Under oath he expressed his doubts about the prosecution. This may have been a manifestation of the highest principles of the bar; it may have been a splendid example of free speech in the public interest. The First Amendment may seldom have glowed so brightly as it glowed that day in Pomona. Milton -- that's John Milton -- would have been proud.

It will not surprise many readers to learn that life soon became miserable for the deputy district attorney. He was denied a promotion, transferred to another courthouse and demoted from his position as a calendar deputy. Eventually he sued the county for violation of his civil rights. He won in the 9th Circuit but lost in the Supreme Court a week ago.

In his opinion for the majority, Justice Kennedy first gave away some easy points. Public employees, such as Richard Ceballos, "do not surrender all their First Amendment rights by reason of their employment." Indeed, in certain circumstances, a public employee may speak with impunity "as a citizen" addressing matters of public concern. He recalled Thurgood Marshall's opinion in the famous case of Marvin Pickering in 1968. There the Supreme Court ruled unanimously that an Illinois schoolteacher could not be fired for writing a letter to a newspaper criticizing the allocation of school funds.

James J. Kilpatrick

James J. Kilpatrick has been reporter, editor, columnist, commentator, and briefly an adjunct professor of journalism.

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