First Amendment

In opinion by Trump appointee, 5th Circuit upholds firing of DA employee over political differences

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A Texas district attorney did not violate the First Amendment when he fired the coordinator of his crime victims unit because of political disagreements, the 5th U.S. Circuit Court of Appeals at New Orleans has ruled.

The 5th Circuit ruled for District Attorney Omar Escobar Jr. of Duval, Jim Hogg, and Starr counties in South Texas in an Aug. 28 opinion.

The coordinator, Bernice Garza, functioned as a policymaker and confidential employee, and political affiliation is an appropriate requirement of the position, the 5th Circuit said. As a result, Garza could be subject to “patronage dismissal without violating” the First Amendment.

Judge Stuart Kyle Duncan, an appointee of President Donald Trump, wrote the unanimous opinion. His opinion was joined by Judge Leslie Southwick, an appointee of President George W. Bush, and Judge Gregg Costa, an appointee of President Barack Obama.

Garza had helped Escobar in his successful 2012 campaign for district attorney, and she was hired in 2015 to be the coordinator of the crime victims unit. The next year, she worked on Escobar’s reelection campaign, but their relationship began to deteriorate because of political activities and views by Garza’s sister, according to the 5th Circuit opinion, which relied on allegations in the lawsuit.

Escobar didn’t want the sister to run for office because it would disrupt his own political plans, but the sister nonetheless ran for county judge in 2017.

Escobar also disagreed with a decision that the sister made when she was a member of the school board and blamed Garza for an assistant district attorney’s decision not to run for a judgeship.

Escobar quit communicating with Garza and talked only to her subordinates. After the sister’s campaign kickoff, Escobar sent Garza a message about a new election code amendment that increased penalties for election offenses while warning vaguely that arrests would be made, she alleged.

Garza requested a leave of absence and worked on her sister’s campaign during that time. When she tried to return to work in March 2018, Escobar was told that she was “suspended without pay pending the outcome of a current election fraud investigation.” In April 2018, Garza learned that she had been fired.

The appeals court upheld a decision by the trial judge that Garza’s dismissal did not violate the First Amendment.

“We conclude that Garza’s political affiliation and actions disrupted the work of the DA’s office,” the appeals court said. “After Garza’s political actions, Escobar was unable to place absolute confidence in her performance of her vital statutory duties.”

“As discussed, Garza oversaw the office’s work with victims and their families,” the court said. “In performing those duties, Garza was representing Escobar, the elected DA. He was thus entitled to her loyalty and needed confidence in her representation.”

Hat tip to Law360, which had coverage of the opinion.

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