State Lawyer Who Says Rights Were Violated Can Sue, Court Rules

A state Department of Health Services lawyer who was transferred from her job after she attended a legislative hearing on abortion on her own time but against the department’s wishes has the right to sue for violation of her constitutional rights, a federal appeals court ruled Thursday.

In a decision upholding the rights of public employees to participate in political activities outside the workplace, the U.S. 9th Circuit Court of Appeals held that Joyce C. Johnston’s First Amendment rights were violated when her employers transferred her to another division after she attended the hearing on abortion and family planning.

“Abortion and abortion rights are matters of great public concern. The consciences of citizens are divided on them. Public employees, as citizens, have a right to make their interest in the issues known to their legislators,” the court said in a unanimous opinion written by Judge John T. Noonan Jr., a former anti-abortion activist who edited the Human Rights Journal before his appointment to the court in 1985.

The decision allows Johnston to go back to the trial court for a determination of whether she can collect damages for her job transfer or whether the department justifiably transferred her for other reasons.

“It seemed clear that it was an effort to bully me out of my rights to attend a hearing as any other citizen can to hear what elected and appointed officials had to say on an important public issue,” Johnston, who is now an attorney in the Health Services Department’s Medi-Cal section, said in an interview.

Strong Feelings Cited

Deputy Atty. Gen. Dennis Eckhart, representing Johnston’s supervisors at the department, Richard Koppes and Robert Tousignant, said Johnston’s strong feelings about abortion justified her transfer to an area of the department that did not deal with family planning issues.

“What we were asking was, do the interests of an employer in having a workplace that is efficient and harmonious outweigh the employee’s interest in expressing her views,” he said.

The dispute arose in September, 1984, when top health officials in the Deukmejian Administration were called before a state Senate committee to explain delays in funding for family planning contracts throughout the state.

Johnston, who was then a lead attorney in the Health Services Department’s preventive health section, requested two hours of vacation time to attend the hearing. The assistant chief counsel denied the request, telling her she had “no business being there,” according to her complaint. She appealed to the chief counsel, who said he “preferred” that she not attend.

According to the court’s findings, Koppes was embarrassed by her presence at the hearing, knowing her views did not coincide with those of the department and fearing that she might be called to testify.

Johnston’s vacation request was eventually approved retroactively after she had attended the hearing, but her job as lead attorney was abolished and she was transferred.

In its ruling, the appeals court found that Johnston’s First Amendment rights were violated by the transfer. The court also rejected the state’s arguments that Johnston’s conduct put her in conflict with the interests of her client, ruling that she was not acting against the department in any professional capacity.

“Loyalty to a client requires subordination of a lawyer’s personal interests when acting in a professional capacity. But loyalty to a client does not require extinguishment of a lawyer’s deepest convictions,” the court held.