Rackauckas Is Told by Court to Reinstate a Former Deputy

A state appeals court has ordered Orange County Dist. Atty. Tony Rackauckas to reinstate one of his former top deputies, saying her constitutional rights were violated when she was demoted for supporting an unsuccessful challenger to Rackauckas in the 2002 election.

Former Asst. Dist. Atty. Jane Shade must be reinstated to her former rank as a senior deputy district attorney, Presiding Justice David G. Sills wrote in a 17-page unanimous decision released late Friday by a three-judge panel of the 4th District Court of Appeal in Santa Ana. The opinion reversed a lower court ruling by Los Angeles Superior Court Judge Philip H. Hickok.

Rackauckas’ office referred a call for comment to attorney Norman Watkins, who represented his office in the appeal. Watkins described the ruling only as “interesting” and said he didn’t know if the county would appeal to the California Supreme Court.

The decision, the first of several similar cases to reach the appeals court, keeps alive a bitter controversy that broke out during Rackauckas’ reelection campaign in 2002.

The campaign, in which the prosecutor was opposed by one of his deputies, Wally Wade, split the office among prosecutors defending Rackauckas and those critical of his management.

After winning the election, Rackauckas moved swiftly to demote Wade and six other deputy prosecutors who backed him, including Shade. The attorneys were moved to the district attorney’s family support division, which four months later was taken over by the state.

Six of the seven lawyers sued, alleging that Rackauckas improperly retaliated against them. In July 2002, four months after the election, the Orange County Grand Jury echoed some of their complaints by accusing Rackauckas of intervening in cases on behalf of friends and campaign contributors, improperly basing hiring decisions on politics and personal loyalty, and misusing public resources.

An investigation by Atty. Gen. Bill Lockyer concluded that no crimes occurred but said Rackauckas had exercised mismanagement and bad judgment. Rackauckas said he was the victim of a vendetta by disgruntled employees.

Rackauckas has prevailed in some of the cases brought against him by former deputies, but Friday’s appellate decision sided with Shade.

While the district attorney has broad discretion to transfer attorneys among departments, that discretion “may not be exercised solely in retaliation for activities protected by the First Amendment,” Sills wrote for the court. He said Shade’s campaigning on behalf of Wade was clearly in the public interest and was constitutionally protected.

“In the context of a political campaign, she spoke out against Rackauckas’ integrity and work habits, and she disclosed what she believed to be the preferential treatment he afforded those who donated to his campaign,” Sills said.

Shade, an instructor at Western State University College of Law in Fullerton, said she was excited about going back to work as a prosecutor. She retired a year ago from the state Department of Child Support Services, which collects overdue support payments.

However, she acknowledged some jitters about serving again under Rackauckas.

“Naturally I’m concerned, not only because of this [case], but because of all of the other mismanagement that the district attorney’s office has experienced under Rackauckas,” she said.

Wade said he was hopeful the appeals court ruling in Shade’s favor would help his case, most of which was dismissed in June by Hickok -- the same judge who handled the Shade lawsuit. Wade’s case, which he filed jointly with three other former prosecutors, is being appealed to the same court that ordered Shade reinstated.

Hickok dismissed the Wade case after a jury was preparing to settle on a $4-million verdict against Rackauckas, according to the jury forewoman. The judge ended the trial after agreeing with county attorneys that provisions of the state labor code on which the suit was based didn’t apply to government workers. The lawsuit also alleged violations of free-speech rights.

Watkins said he doubted the Sills decision would affect the Wade case because the county presented evidence during the trial that the attorneys were moved because they had disrupted the office.

In the appellate decision Rackauckas was faulted for failing to explain why he moved Shade, despite having an opportunity to do so.

“Other than his conclusory statement that Shade’s transfer was for the good of the people, Rackauckas offered no justification, legitimate or otherwise, for the exercise of his discretion,” Sills wrote.