Lawyer’s ethical duty not ‘official duty’ under Garcetti; law clerk advances free speech reprisal claim

By Joy Waltemath

By Dave Strausfeld, J.D.

A law clerk who reported a state appeals court judge to an ethics panel can move ahead with his claim that the judge retaliated against him, held the Fifth Circuit, hearing an interlocutory appeal of a lower court’s decision denying qualified immunity. The state judge did not have qualified immunity because it was clearly established at the time in question that the law clerk’s speech was protected by the First Amendment. While the law clerk had an ethical duty as an attorney to report malfeasance, this did not mean he acted pursuant to his official duties under Garcetti when he reported the judge’s alleged misconduct. Therefore, the district court had properly denied the state judge’s motion to dismiss (Anderson v. Valdez, filed November 9, 2016, rehearing denied January 10, 2017, Wiener, J.).

According to the complaint, a law clerk employed by the Texas Court of Appeals became aware that the chief judge had improperly obtained double reimbursement for certain travel expenses. The law clerk learned of these matters through his own boss, another judge on the same court. Though his boss did not ask him to report the matter to authorities, he decided to do so, first sending a letter to the Texas Supreme Court and then filing a disciplinary complaint with the state commission on judicial conduct. When his boss retired later the same year, the law clerk was offered another position working for the court. But the state judge against whom he had filed the ethics complaint allegedly intervened to cause the job offer to be withdrawn.

Ethical duty versus official duty. On interlocutory appeal, the state judge argued that he was entitled to qualified immunity. He maintained, first of all, that the law clerk’s speech was not constitutionally protected because the law clerk was acting pursuant to his official duties in filing the ethics complaint and, under the Supreme Court’s decision in Garcetti v. Ceballos, public employees have no First Amendment protections for speech they make pursuant to their official job duties. The state judge’s argument was as follows: As an attorney, the law clerk had an ethical obligation under the applicable rules of professional responsibility to report malfeasance, and this duty was incorporated into his official duties as a public employee. Thus, when he filed the judicial misconduct complaint, he was acting pursuant to his official duties—and his speech received no constitutional protection.

The Fifth Circuit was not persuaded. “Garcetti’s scope is obviously not as broad” as this, it wrote, rejecting the notion that the law clerk’s professional responsibilities as a lawyer became part of his official job duties. Moreover, the state judge’s argument was inconsistent with the reasoning underlying Garcetti. The touchstone of Garcetti is the right to control a public employee’s performance of his or her official duties, and “[i]f it is not lawful and appropriate for the employer to exercise control, the employee is, quite simply, not speaking pursuant to his official duties.”

The Fifth Circuit thus rejected the state judge’s assertion that professional ethical duties become incorporated into official duties under Garcetti. The law clerk plausibly pleaded that he engaged in constitutionally protected speech when he filed the judicial misconduct complaint and suffered retaliation because of it, the court held.

Clearly established. The Fifth Circuit next considered whether the law clerk’s free speech rights were clearly established. Arguing that the rights asserted here were not clearly established, the state judge pointed out that when the alleged retaliation occurred, the Supreme Court had not yet handed down Lane v. Franks, nor had the Fifth Circuit issued Cutler v. Stephen F. Austin State Univ., both decisions that clarified the scope of public employees’ free speech rights. But the appeals court found no merit in this argument, concluding the law was sufficiently clear that he should have known his retaliatory conduct was unconstitutional, at least based on the facts as alleged. The law clerk adequately “pleaded the violation of a clearly established right.”

No heightened pleading standard. On a related issue, the state judge contended that the law clerk’s free speech retaliation claim was subject to a heightened pleading standard because a defense of qualified immunity was raised. But the state judge “misconstrue[d] this court’s precedent in Shultea v. Wood” in reading it to require a heightened pleading standard, the appeals court said.

Dissent. Judge Jones did not agree that the law was clearly established at the time of the relevant events. In her view, a reasonable judge would not necessarily have understood at that time that the law clerk’s speech was constitutionally protected because it occurred outside of his “chain of command.”

Rehearing denied. The state judge filed a petition for rehearing arguing that the Fifth Circuit improperly relied on case law post-dating the events in this case in deciding whether the law clerk’s rights were clearly established. But the appeals court rejected the notion that its decision had relied on—as opposed to merely mentioning—post-conduct holdings.

Source:: Employment Law Daily Newsfeed