Ninth Circuit Tosses First Amendment Ruling

SAN FRANCISCO (CN) – The Ninth Circuit reversed and vacated $940,000 in awards in a case from a former county attorney who claimed Maricopa County tortiously interfered with her job after she spoke to a newspaper reporter about a sensitive case, in violation of her First Amendment rights.

Maria Brandon defended Maricopa County in civil cases as a member of its Special Litigation Department. In her 2012 lawsuit, she claimed that county management sought to punish then-County Sheriff Joe Arpaio and then-County Attorney Andrew Thomas by settling lawsuits for amounts larger than would be typically owed.

Maricopa County’s seat is Phoenix, the state capital.

In reporting on a police-brutality settlement of $424,700, The Arizona Republic called Brandon about a memo to then-Maricopa County Sheriff’s Office Chief Deputy David Hendershott, which was leaked by someone other than Brandon.

Brandon declined to comment on the memo, but said in regard to county officials settling the case: “I don’t know why they did what they did, and I’m sure they have their reasons.” The Republic ran a front-page story and quoted Brandon.

After the Special Litigation department was disbanded, Brandon returned to her previous job as a civil litigation attorney with the Maricopa County Attorney’s Office. County risk management officials requested that risk management cases not be assigned to Brandon because they believed she had acted unprofessionally by commenting on a sensitive case to the media. Brandon was later terminated on the grounds that she had had an altercation with another staff member.

Brandon sued the county and several officials in April 2012, claiming constitutional violations, wrongful termination, and tortious interference for reassigning cases away from her. The federal jury found for Brandon on her First Amendment and tortious interference claims, awarding her $1 and $638,147 respectively. The court awarded her another $302,175 in attorney fees for prevailing on her First Amendment claim.

On Friday, however, Ninth Circuit Judge Carlos Bea reversed and vacated the fee award.

Writing for the three-judge panel, Bea said: “Under Arizona tort law, a necessary element of tortious interference with contract is that such interference be ‘improper.’” And in this case, it was not improper for county officials to concern themselves with an attorney representing their interests.

The district court erred, Bea wrote, in determining that the risk management office was not Brandon’s client.

“This conclusion is factually incorrect because the record is undisputed that the risk management office coordinated, on behalf of the county, with the MCAO [Maricopa County Attorney’s Office] to manage the resolution of civil lawsuits against the county,” Bea wrote. “No reasonable jury could find otherwise from the record here.”

Therefore, county officials did not tortiously interfere with Brandon’s contract.

As for Brandon’s First Amendment claim, Bea wrote that the claim turns on whether she was speaking as a public official or as a private citizen.

The trial court held that Brandon was not speaking publicly because there was “no evidence to show that Brandon’s statement violated any policy, contained confidential information, harmed the county, or interfered with her duties so as to outweigh her First Amendment protections.”

However, Brandon was speaking as an attorney representing Maricopa County, and her statement reflected negatively on a client to whom she owed a broad duty, Bea wrote.

“That the attorney who handled the case did not ‘know why [the client] did what they did’ implies the client was acting without professional advice when paying the settlement. Brandon’s statement that they must ‘have their reasons’ cements the implication that the client was acting unprofessionally.” (Brackets in ruling.)

Because Brandon is no longer considered a prevailing party, the fee awards are vacated.

Larry Cohen represented Brandon; Kimberly Demarchi with Lewis Roca Rothgerber represented Maricopa County. Neither returned requests for comment Friday.

Judge Bea was joined on the panel by Ninth Circuit Judge Sandra Ikuta and International Trade Judge Jane Restani, sitting by designation.

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