By Marjorie Johnson, J.D.
The chief justice of a Texas appeals court was entitled to qualified immunity from a First Amendment retaliation lawsuit by a former briefing attorney who claimed his employment offer was rescinded because he reported the justice’s judicial misconduct to the state commission, resulting in an investigation by the district attorney’s office. Reversing denial of the justice’s motion for summary judgment, the Fifth Circuit found that it was unsettled at the time of the alleged retaliation whether the attorney had spoken as a citizen or as an employee since it wasn’t until a month later that the Supreme Court’s Lane v. Franks, holding clarified that the general obligation to report judicial misconduct did not make the complaint “official duty” employee speech (Anderson v. Valdez, January 14, 2019, Higginbotham, P.).
Alleged financial misconduct. The briefing attorney worked for an appellate judge who told him that she had documents suggesting the chief justice collected duplicative reimbursements from the court fund and his own campaign fund. Though the judge didn’t report the misconduct out of fear she would appear political (she was vying for the chief’s job), the attorney sent a letter reporting the conduct to the chief justice of the state supreme court. At the high court’s direction, he then filed a complaint with the state’s commission on judicial conduct and the district attorney’s office began an investigation.
Reemployment offer rescinded. After the attorney’s employment with the appeals court ended due to the expiration of his judge’s term, he provided the district attorney’s office with additional information. He was then offered a senior staff attorney job for a different appellate judge. However, the chief justice remarked that this was a “bad idea” and suggested that other judges be consulted, which was unusual. The job offer was subsequently withdrawn.
Denial of motion to dismiss affirmed on prior appeal. The attorney filed this suit against the chief justice in his individual and official capacities, claiming he intervened in his hiring as retaliation for the complaint. The chief justice moved to dismiss, asserting that the speech was not protected since the attorney’s professional obligations as a lawyer required his report of judicial misconduct, and thus he spoke pursuant to his official duties in filing the complaint with the commission. The district court denied the motion and the Fifth Circuit affirmed, holding that his general professional duties as a lawyer were not “official duties” that would transform the constitutionally protected speech of a citizen into the unprotected speech of a public employee.
This appeal. At issue here was the district court’s subsequent denial of the chief justice’s motion for summary judgment, which presented the separate issue of whether it was clearly established at the time of the alleged retaliation that the employee’s speech was protected. The chief justice had argued that it was unprotected since the attorney was specifically bound by the Texas Code of Judicial Conduct, which requires judges and their staff to report judicial misconduct to the state commission. Thus, he spoke pursuant to this “official duty” at the time his employment offer was rescinded.
State of the law at time of retaliation. In Garcetti v. Ceballos, the U.S. Supreme Court settled that when public employees make statements pursuant to their official duties, their speech is not protected since they are not speaking as citizens for First Amendment purposes. Afterwards, the Fifth Circuit “repeatedly held that employees speaking in discharge of job-imposed obligations to report wrongdoing did so as public employees—not as citizens.” However, clarity came with the Supreme Court’s Lane decision, which found that”a general job-imposed obligation to detect and prevent wrongdoing does not qualify as an employee’s ‘official duty’ because ‘such broad [obligations] fail to describe with sufficient detail the day-to-day duties of a public employee’s job.’”
Here, the briefing attorney’s oath subjected him to the Texas Code of Judicial Conduct, requiring that he swear that he would “observe the standards of fidelity and diligence prescribed.” In turn, the Code required judges (and by extension, their briefing attorneys) to report any “knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge’s fitness for office.” While Lane and the Fifth Circuit’s post-Lane caselaw made clear that a general obligation to report judicial misconduct did not constitute an “official duty” demarcating employee speech under Garcetti, Lane was decided a month after the attorney’s employment offer was withdrawn.
The Fifth Circuit also rejected the attorney’s assertion that even if his complaint to the state commission was official speech, his later communications to the district attorney’s office (made when he was no longer a judiciary employee) was citizen speech that alone could ground his retaliation claim. If the chief justice was entitled to discipline him for his initial speech as an employee, he could not escape that discipline by going public with the same speech. Thus, since it was not clearly established that his original complaint to the state commission on judicial conduct was not employee speech, the chief justice was entitled to qualified immunity concerning his later contact with the district attorney.
No ongoing violation. The attorney was also unable to pursue his claim against the chief justice in his official capacity since he there was no ongoing violation of federal law. Significantly, the judge who offered him a job as his staff attorney had since lost his bid for reelection and therefore was no longer on the appeals court. Since the appellate judges conducted their own individualized hiring, there was no ongoing violation of federal law in failing to hire him to work for a different judge. Thus, denial of summary judgment on this claim was also reversed.
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