Last week, the U.S. Court of Appeals for the Ninth Circuit issued an opinion holding that a social worker is protected from retaliation for his courtroom testimony about a former client. The case is Clairmont v. Sound Mental Health and Wilson, No. 09-35856 (9th Cir. 2011).
From 2005 to 2007, Sound Mental Health (SMH) of Seattle, Washington, employed Richard Clairmont as a domestic violence program manager. He supervised a treatment program for offenders and members of the public. SMH had a contract with the Seattle Municipal Court. In exchange for providing the services and making regular reports to the Court, the Court gave SMH office space and equipment. Joni Wilson was the Manager of Probation Services for the Court.
In 2007, a criminal defense attorney subpoenaed Clairmont to provide expert testimony in her client's case. The client spoke Spanish, and had been terminated by a competing treatment program. Clairmont agreed to provide the testimony about the possibility that the client was treated differently because of the language issue. The Court's probation office was seeking a court determination that the client had violated the terms of probation such that the court should revoke probation and impose a jail sentence. When Wilson learned about Clairmont's testimony, Wilson called Clairmont's supervisor at SMH. Two weeks later, SMH fired Clairmont because of "critical feedback from the City of Seattle Domestic Violence Probation Officers Unit about your performance." The letter noted that "The program is in jeopardy. They have proposed a stop-referral beginning immediately. This leaves SMH with no option but to terminate your employment effective today.
The Ninth Circuit held that Clairmont could pursue a First Amendment claim because "his relationship to the Municipal Court was analogous to that of an employer and employee." A state agency cannot "abuse its position as employer to stifle the First Amendment rights its employees would otherwise enjoy as citizens to comment on matters of public interest." The Court held. The Court declined to hold that all court testimony is protected, but instead held that Clairmont's specific testimony here "helps the public evaluate the performance of public agencies." That is enough to address a "matter of public concern." Sworn courtroom testimony will constitute speech on a matter of public concern when it “bring[s] to light potential or actual discrimination, corruption, or other wrongful conduct by government agencies or officials.”
In this case, it helped that Clairmont was addressing a matter of discrimination, civil rights violations, and threats to public safety. "[S]peech exposing policies that put people in jeopardy is inherently of interest to the public."
The Court rejected Wilson's claim that Clairmont was testifying as part of his official duties. If Wilson had been successful on this point, it could have required a dismissal of the case under Garcetti v. Ceballos, 547 U.S. 410, 420 (2006). The Court said there was no evidence in the record that this testimony was part of his official duties. The Court also rejected Wilson's claim that qualified immunity should apply. The Court found that the First Amendment right to testify in court about discrimination was well-established. The Court remained Clairmont's claims to the district court "for trial."
Congratulations to Richard Clairmont and his attorney, Jesse Wing of Seattle, Washington.