The Supreme Court is set to hear rearguments in a key public employee free speech case, as announced in this ABA eReport piece. That’s not so odd, when new justices come on board. The facts concern a former attorney for the Los Angeles County District Attorney’s office:

Ceballos … sued his supervisors in October 2000 in federal court, contending they retaliated against him after he exposed false statements by a deputy sheriff in a search warrant affidavit. Ceballos alleged that after he wrote a memo to his supervisors advising the dismissal of an auto theft case, his supervisors demoted him and otherwise engaged in retaliatory actions against him.

A federal district court granted summary judgment to the defendants, reasoning they were entitled to qualified immunity because the memorandum was created "as part of his job." On appeal, the San Francisco-based 9th U.S. Circuit Court of Appeals reversed. Ceballos v. Garcetti, 361 F.3d 1168 (2004). In an opinion by Judge Stephen Reinhardt, the appeals court rejected "a per se rule that the First Amendment does not protect a public employee simply because he expresses his views in a report to his supervisors or in the performance of his other job-related obligations."

In a concurring opinion, Judge Diarmuid O’Scannlain said 9th Circuit precedent dictated the result, but called for the high court to "steer this court’s drifting First Amendment jurisprudence back to its proper moorings." O’Scannlain added that "the First Amendment, in short, does not protect public employees’ routine and required speech on behalf of the government."

But court observers are pressed to pinpoint exactly which issue led to the stalemate.

"The court never really indicated any reasons why reargument was called for," says First Amendment expert Robert O’Neil, who wrote an amicus brief in support of Ceballos on behalf of the Charlottesville, Va.-based Thomas Jefferson Center for the Protection of Free Expression and the American Association of University Professors. "It is not easy to identify what exact issue may have caused the reargument, but it is probable that there was a key issue in which Justice O’Connor’s vote was critical."

"Reargument is very uncommon over the past decade," says Supreme Court practitioner Tom Goldstein of Washington, D.C. "Chief Justice [William H.] Rehnquist almost always ensured that opinions were completed by the end of each term so that reargument wasn’t required. This is the unusual situation in which a tie vote requires reargument."

But it is not rare to have reargument "when a new justice arrives in the middle of a term and there are outstanding 4-4 cases," Lederman says. "For example, the court heard reargument in four or five cases when Justice Anthony Kennedy came on board in the middle of the 1987-88 term."

Nearly all eyes will be on Alito. "Of course, any justice can change his or her mind on reargument, but the parties to the case would be wise to presume that Justice Alito will determine the outcome," Lederman says. …

The Ninth Circuit’s opinion can be found here. For additional information, take a look at the Firs Amendment Center’s page on the case here (with transcripts, oral arguments, and other supporting documents).

EDITED – I did not originally intend to publish the entirety of the article. I do recall a few things from my Copyright class in law school. I’ve edited the post by taking down the remainder of the article.


The opinion by Justice Ginsburg can be read here.

Question Presented: Whether the "15 employee" requirement in Title VII’s definition of "employer" is properly construed as an element of federal-court "subject matter" jurisdiction over a controversy, or as an essential element of the underlying Title VII claim.

Case Name: Jenifer Arbaugh v. Y & H Corporation d/b/a The Moonlight Cafe
Case Number: 04-944
Court: Supreme Court
Date Decided: February 22, 2006

Facts: Plaintiff Jenifer Arbaugh worked as a bartender and waitress from May 2000 through February 2001 at the Moonlight Café in New Orleans. She alleged that one of the owners of the restaurant subjected her to sexual harassment, and engaged in behavior that brought about Arbaugh’s constructive discharge. She filed suit in Louisiana federal district court under Title VII (claiming sexual harrassment) and various pendent state law claims based on the same facts.

Analysis after the jump.

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