The U.S. Court of Appeals for the Fifth Circuit based in Louisiana has issued a decision that promises to chill future whistleblower complaints of judicial corruption in state and federal courts.
A three-judge panel of the appeals court on Jan. 14 dismissed a lawsuit filed by a staff attorney who complained about alleged corruption by then Chief Justice Rogelio Valdez of the Texas Thirteenth District Court of Appeals and then was blackballed by Valdez in 2014 apparent in retaliation for his complaint.
The decision notes Bruce M. Anderson was required to swear an oath to report judicial misconduct when he was hired as a briefing attorney for a judge on the Texas state appellate court.
He complained in 2012 that Valdez doublebilled (at least ten times) travel expenses to both Valdez’ political campaign and the court’s local fund.
At the time, Anderson worked for Justice Rose Vela of the Thirteenth Court who, along with another Justice, Gregory Perkes, unsuccessfully sought an audit of a court fund controlled by Valdez. (Vela and Perkes also had a professional obligation to report Valdez’ alleged misconduct under the Texas Code on Judicial Conduct but they did not do so.)
As of about two weeks ago, Valdez is no longer on the Texas court. He chose not to run for reelection and his term expired on December 31, 2018.
After Vela’s term expired in 2013, both she and Anderson left the court. He provided additional information about Valdez’ alleged corruption to the Public Integrity Unit of the Travis County District Attorney’s Office in his capacity as a private citizen.
In 2014, Justice Perkes offered Anderson a position as senior staff attorney. When Valdez found out about this, he told Perkes that hiring Anderson was a “bad idea” because, among other things, Anderson had a bad attitude. According to the 5th Circuit: “After Valdez told Perkes in May 2014 that he and the other justices did not approve of Anderson’s hiring, Perkes rescinded Anderson’s offer.”
The facts point to an open and shut case of retaliation against a whistleblower.
Anderson filed a lawsuit against Valdez alleging retaliation. Anderson argued he not only had a professional obligation to report judicial misconduct as a staff attorney for the Thirteenth Court but he was protected as a citizen under the free speech clause of the First Amendment of the U.S. Constitution.
U.S. District Judge Randy Crane in 2015 denied Valdez’s motion to dismiss the lawsuit on the grounds of qualified immunity, and ruled Anderson’s claims for damages and injunctive relief could move forward.
Valdez filed an unusual interlocutory appeal to the 5th Circuit. An interlocutory appeal asks an appellate court to review an aspect of the case before the trial has concluded.
Valdez argued that Anderson’s speech was not protected by the First Amendment because the Texas Code of Judicial Conduct requires judges – and by incorporation, their staff – to report misconduct. He said Anderson’s speech was made pursuant to his official duties and not as a citizen.
The 5th Circuit agreed.
The 5th Circuit ruled that Anderson’s later contact with the Travis County District Attorney’s office – which occurred when he was clearly a private citizen – was not protected because Anderson “cannot escape the discipline of his employer for breach of his employee duties by going public with the same speech.”
The 5th Circuit then ruled that Anderson could not sue Valdez in his official capacity because state courts and state judges are protected under a grant of qualified immunity from lawsuits via the Eleventh Amendment of the U.S. Constitution (unless the state consents to be sued or barring a Congressional enactment).
The 5th Circuit also chose not to use its equitable powers to order Anderson’s reinstatement.
The 5th Circuit concedes in its decision that it possesses inherent equitable power to order the Thirteenth Court to reinstate Anderson to the job that he lost in 2014 due to Valdez’ interference. However, the appeals court panel notes that Justice Perkes – who hired Anderson to be his staff attorney in 2014 – had lost his bid for reelection and was no longer on the court. “While Anderson points out that there are still senior staff attorney positions on the Thirteenth Court, the practice of the Thirteenth Court is to allow judges to conduct their own individualized hiring,” the 5th Circuit writes.
By refusing to order the Thirteenth Court to reinstate Anderson, the 5th Circuit effectively condoned Valdez’ retaliation of Anderson for complaining that Valdez was illegally double billing taxpayers for travel expenses. A Google search failed to disclose any public record of what, if anything, happened to Anderson’s original complaint of Valdez’ doublebilling.
The bottom line: If Anderson had not reported Valdez, he would have violated his professional obligation as a lawyer. As a direct consequence of reporting Valdez, Anderson lost his job and, now, a costly court battle for justice.
One wonders whether the 5th Circuit gave any thought to the message that it’s decision sends to staff attorneys and employees in state and federal courts throughout the country. Should they honor their professional obligations and report judicial misconduct or should they save their butts, like everyone else in this case with the sole exception of Bruce M. Anderson?
The 5th Circuit decision was written by Justice Patrick E. Higginbotham. Other members of the panel were Justices Don R. Willett, and James E. Graves. The case is Anderson v. Valdez, No. 17-41243, January 14, 2019.
There is no significant citizen input or oversight into the federal courts. Federal judges are appointed and serve for life barring bad behavior (whatever that means). They earn around $200,000 a year to interpret the law fairly and impartially. The judiciary is charged with policing itself. Given the 5th Circuit’s opinion in this case, the bar set by court “leadership” obviously is not high.
The 5th Circuit has appellate jurisdiction over federal courts in Texas, Louisiana and Mississippi.