Supreme Court Weighs Issue of Privacy in Public Offices

Attorneys for California contended in arguments before the Supreme Court on Wednesday that a public employee has no legal right to privacy in his office or desk, even if the door is locked and personal papers are kept inside.

The state and the Justice Department are urging the high court to reverse a ruling last year declaring that officials of a state hospital in Napa violated the constitutional rights of a staff psychiatrist when they searched his locked office as part of an investigation that led to his dismissal.

But the key issue--whether offices and desks are private--triggered questions from the justices, who themselves are public employees.

Associate Justice Antonin Scalia pointed out that on occasion he must check the desk of a law clerk who has gone home for the evening. “Can I go in there and get a paper off his desk (without a search warrant)?” Scalia asked the attorney representing the psychiatrist.

However, Associate Justice Sandra Day O’Connor asked: “What about the desk of a Supreme Court justice? Aren’t there some public officials who can have a reasonable expectation of privacy in their desks?”

California Deputy Atty. Gen. Jeffrey T. Miller argued that because government offices and desks are the property of the government agencies, no right is violated when the agency searches them.

‘Variety of Reasons’

Without responding directly to O’Connor’s question, Miller said: “An employer may open an office for a variety of reasons. We don’t believe that’s a violation of the Fourth Amendment,” which bans unreasonable searches and seizures.

However, Joel Klein, the psychiatrist’s attorney, said that most employees have “a reasonable expectation of privacy” in their desks and offices.

“It’s our common understanding that when we go home at night, our employer will not rifle through our desk,” Klein said.

In response to Scalia’s question, he granted that a supervisor or fellow employee can enter an office to obtain a paper or file but said the situation changes when an investigation is under way.

“They had singled this person out, and they wanted information to use against him,” Klein said. “In that situation, I think they need a (search) warrant.”

The American Civil Liberties Union and several groups representing public employees have filed briefs with the court supporting the notion that offices and desks are private.

The case arose in 1981 when officials of the Napa State Hospital received reports that Dr. Magno Ortega, a psychiatrist there for 17 years, had mismanaged his office, harassed a female nurse and put another doctor on involuntary leave. According to court papers, the hospital officials then searched Ortega’s office and conducted an “inventory” of his papers and possessions.

Ortega, who was later fired, sued for $750,000, but his suit was dismissed by a trial court. However, in 1985 the U.S. 9th Circuit Court of Appeals ruled in his favor, concluding that the search was unjustified. A ruling in the case (O’Connor vs. Ortega, 85-530) from the Supreme Court is expected by the end of the current term in July.

In session earlier in the day on another case (McCleskey vs. Kemp, 84-6811), several justices expressed skepticism about statistical evidence presented to suggest that the death penalty is being administered in a racially discriminatory manner.

The National Assn. for the Advancement of Colored People’s Legal Defense Fund, in what many have called the last broad attack against the death penalty, contends that killers of whites in Georgia are 11 times more likely to get a death sentence than killers of blacks.

The statistics show a “pattern” of discrimination and represent a “clear indictment of the Georgia system,” attorney Jack Boger argued before the court.

But Chief Justice William H. Rehnquist countered, “Don’t you have to show that this particular jury . . . (or) this particular prosecutor discriminates in the manner which you suggest?”

O’Connor called it a “curious claim” because the black defendant charged that he was treated unfairly not because he was black, but because his victim was white.

“What if we find that shifty-eyed people are convicted to a disproportionate extent?” Scalia asked.

Representing Georgia, attorney Mary Beth Westmoreland said that each case is unique and that the statistics were insufficient to show that the system was unfair.