Phyllis Carver Thomas Fox April Moore Roberta Rudolph v. Tom Foerster, An Individual and Chairman, Allegheny County Commissioners County of Allegheny, 102 F.3d 96, 3rd Cir. (1996)
Phyllis Carver Thomas Fox April Moore Roberta Rudolph v. Tom Foerster, An Individual and Chairman, Allegheny County Commissioners County of Allegheny, 102 F.3d 96, 3rd Cir. (1996)
Phyllis Carver Thomas Fox April Moore Roberta Rudolph v. Tom Foerster, An Individual and Chairman, Allegheny County Commissioners County of Allegheny, 102 F.3d 96, 3rd Cir. (1996)
3d 96
65 USLW 2406
Plaintiffs brought suit under 42 U.S.C. 1983 against Allegheny County and
Tom Foerster, Chairman of the Board of Commissioners of Allegheny County
and a member of the Allegheny County Salary Board, charging that Foerster
had eliminated their jobs with Allegheny County because they supported Joe
Brimmeier in the Democratic primary for Prothonotary. Allegheny County and
Foerster moved for summary judgment based on absolute legislative immunity
because plaintiffs' positions had been eliminated by a vote of the Salary Board.
Foerster also claimed qualified immunity for his actions as a member of the
Salary Board. The district court denied the motions on the ground that Foerster
was not entitled to absolute or qualified immunity for his pre-vote activities and
that municipalities do not enjoy legislative immunity from Section 1983 suits.1
Both defendants appeal the denial of absolute legislative immunity. We agree
with the district court's reasoning and will affirm.
I. Facts
2
In May 1991, Joe Brimmeier, a former aide to Foerster, ran in the Democratic
primary for the position of Prothonotary of Allegheny County. Foerster vocally
opposed Brimmeier's candidacy. The four plaintiffs actively supported
Brimmeier in the primary election. Brimmeier lost.
Plaintiffs Phyllis Carver and Thomas Fox held positions in the Department of
Development. Carver was a planning and evaluation specialist, and Fox was
manager of marketing. Shortly after Brimmeier's candidacy for Prothonotary
failed, Foerster allegedly had Wayne Fusaro, one of his Executive Aides,
compile a "hit list" of Brimmeier supporters. The list reportedly included
Carver and Fox.
On June 19, 1992, George Braun, the Director of Development, notified Carver
On June 19, 1992, George Braun, the Director of Development, notified Carver
and Fox that he was eliminating their positions because of budgetary concerns.
Two other positions within the Department of Development were eliminated at
the same time. Braun submitted his request for Salary Board action on June 12,
and the Salary Board unanimously approved his recommendation for
termination on June 18. Neither Fox nor Carver were offered positions
elsewhere in county government.
The plaintiffs assert that the Salary Board would automatically approve any
proposal to eliminate jobs without independent consideration and that once
Foerster made it known that he wanted plaintiffs' positions eliminated, the vote
of the Salary Board was a mere formality.
On June 9, 1993, the plaintiffs filed suit against Allegheny County and against
Foerster, individually and in his official capacity as Chairman of the Allegheny
County Board of Commissioners. After extensive discovery, defendants filed
for summary judgment. The magistrate judge denied defendants' motion. The
District Court adopted the magistrate judge's report and recommendation.
Defendants have appealed that portion of the District Court's decision relating
to absolute legislative immunity, as well as those defenses "inextricably
intertwined" with their immunity claims.
Ordinarily, this court does not have jurisdiction to review a lower court's denial
of summary judgment since a denial of summary judgment does not constitute a
"final decision" within the meaning of 28 U.S.C. 1291. See In re City of
Philadelphia Litigation, 49 F.3d 945, 956 (3d Cir.), cert. denied, --- U.S. ----,
116 S.Ct. 176, 133 L.Ed.2d 116 (1995). When the summary judgment motion
is premised on absolute immunity, however, the district court's denial is
immediately appealable because it falls within the collateral order doctrine:
"that small class [of orders] which finally determine claims of right separable
from, and collateral to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated." Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26,
93 L.Ed. 1528 (1949).
11
Absolute immunity is an issue of law, separable from the merits of the case,
which once denied cannot effectively be preserved for later review by an
appellate court. "[T]he denial of a substantial claim of absolute immunity is an
order appealable before final judgment, for the essence of absolute immunity is
its possessor's entitlement not to have to answer for his conduct in a civil
damages action." Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806, 2815,
86 L.Ed.2d 411 (1985) (ruling on qualified immunity immediately appealable).
See also Nixon v. Fitzgerald, 457 U.S. 731, 741-43, 102 S.Ct. 2690, 2697-98,
73 L.Ed.2d 349 (denial of presidential immunity immediately reviewable on
appeal) and Acierno v. Cloutier, 40 F.3d 597, 606 (3d Cir.1994): "The Nixon
case makes clear that we have appellate jurisdiction to consider whether the
former members of the County Council are entitled to absolute legislative
immunity."
12
16
17
capacity. "It is only with respect to the legislative powers delegated to them by
the state legislatures that the members of local governing boards are entitled to
absolute immunity." Ryan v. Burlington County, New Jersey, 889 F.2d 1286
(3d Cir.1989); Acierno, 40 F.3d at 610. In Ryan, 889 F.2d at 1290-91, we
devised a two-pronged test for determining whether or not a municipal body's
action was "legislative" or "administrative" in character. To be legislative, the
act must be (1) substantively legislative, such as "policy-making of a general
purpose" or "line-drawing"; and (2) procedurally legislative, such that it is
"passed by means of established legislative procedures". We refined the first
prong of this test in Acierno when we held that although the number of persons
affected by a given decision might be an important factor in the two-part
immunity analysis, it was not dispositive.
18
Using this same approach, we conclude that Tom Foerster is not entitled to
legislative immunity for any non-legislative actions he took to abolish the
plaintiffs' positions. In coming to this conclusion, we will assume, without
deciding, that the Salary Board's vote to eliminate plaintiffs' positions was
"legislative" in nature. In addition, we will assume that a legislative body's
decision to eliminate a government position, in contrast to the mere termination
of a person's employment, is legislative activity. See Rateree v. Rockett, 852
F.2d 946 (7th Cir.1988). Nevertheless, we do not think that such legislative
activity by the Salary Board shields Tom Foerster from liability. As a County
Commissioner, Foerster acted in various capacities--legislative, executive and
administrative. In giving a unilateral order to have Brimmeier supporters fired,
Foerster would not be engaging in policy-making of general application
regarding the expenditure of County funds, but would be making either an
executive decision on how the anticipated cutback should be implemented or an
administrative decision that certain individuals should be fired. Actions taken in
a executive or administrative capacity are not entitled to absolute immunity.
19
Plaintiffs have not named the Salary Board in their complaint; neither do they
cite Foerster's vote as a Salary Board member as part of their claim. Rather,
they seek restitution for the course of conduct--harassment, threats, and
retaliation--in which Foerster allegedly engaged prior to and independent of the
Salary Board's vote. Even if the Salary Board's decision was part of a policy to
cut waste from the county government, Foerster's conduct, if proven,
constituted retaliatory conduct targeted at specific individuals because of their
support for a political adversary. If Tom Foerster used his position as
Commissioner to "punish" county workers for their support of Brimmeier, that
abuse of power for personal ends cannot be made "legislative" simply by
eliminating plaintiffs' positions instead of firing them outright. Were the Salary
Board nonexistent and Tom Foerster able to eliminate County positions without
21
"Indeed,
as Mayor Fischl was powerless to discharge Bartholomew himself, the
Mayor's only available means of effecting appellant's termination was to persuade
the city council of Allentown, the city's official lawmakers, to dissolve the BiCity
Board of Health and the Bureau altogether, thereby eliminating Bartholomew's
position. It is this course of conduct that Bartholomew refers to [in his
complaint]...."
22
23
The district court also held that the Allegheny County and Tom Foerster in his
official capacity were not entitled to legislative immunity from suit under
Section 1983. For the reasons set forth below, we will affirm this holding as
well.
27
Our resolution of this issue necessarily begins with the Supreme Court's
decision in Monell v. Department of Social Services of City of New York, 436
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Court overruled
a portion of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961),
to find municipalities liable as "persons" under Section 1983. "[I]t is when
execution of a government's policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy,
inflicts the injury that the government as an entity is responsible under Section
1983." Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38 (emphasis supplied). The
phrase "made by its lawmakers," practically forecloses the argument that the
Court meant to leave open the possibility that local governments were entitled
to legislative immunity under Section 1983. In addition, the Court rejected the
Shortly thereafter, in Owen v. City of Independence, 445 U.S. 622, 100 S.Ct.
1398, 63 L.Ed.2d 673 (1980), the Court held that municipalities lacked
qualified immunity under Section 1983. Justice Brennan's reasoning in the
majority opinion in Owen bears on our resolution of this case. First, Brennan
noted the language of 1983, which makes no mention of immunities or any
exceptions to the scope of liability. "Its language is absolute and unqualified; no
mention is made of any privileges, immunities, or defenses that may be
asserted." Owen, 445 U.S. at 635, 100 S.Ct. at 1407. Nevertheless, the Court
conceded, some common law immunities were so fully entrenched at the time
the Civil Rights Act was passed in 1871, that they were implicitly incorporated
into the Act.
29
The Court then considered whether any type of immunity protected local
governments in 1871 and found two. The first, the distinction between
governmental and proprietary acts, was ruled out as a basis of immunity under
1983 because it was a form of sovereign immunity, abrogated by Congress,
"the supreme sovereign on matters of federal law," when it included local
governments as "persons" within the Civil Rights Act's scope of liability. Id., at
647-48, 100 S.Ct. at 1413. The second doctrine of immunity, which protected
municipalities for "discretionary" activities of a public or legislative nature,
was equally inapplicable because "a municipality has no 'discretion' to violate
the Federal Constitution; its dictates are absolute and imperative." Id. at 649,
100 S.Ct. at 1414. Thus, neither doctrine of immunity supported the City's
claim of qualified immunity under 1983. The Supreme Court further
31
The Supreme Court's past treatment of local governments under Section 1983
compels our decision today that Allegheny County is not entitled to legislative
immunity in this case. Were we to hold in defendants' favor, we fear this
doctrine of "legislative immunity" would cut away the core principle of Monell
and Owen: Local governments, unlike individual legislators, should be held
liable for the losses they cause. Moreover, a doctrine of legislative immunity
for local governments might have the undesirable effect of encouraging a
county council to adopt all of its policies through a series of legislative actions
passed by a newly created "Board" or "Council".
32
Other policy concerns also support our analysis. First, we do not believe local
governments face the same mix of perverse incentives as individual legislators
when sued or threatened with a lawsuit. When a legislator considers a piece of
legislation, we expect him to consider the best interests of the people he serves,
not the size of his own wallet. As the Supreme Court has recognized, "In many
contexts, government officials are expected to make decisions that are impartial
or imaginative, and that above all are informed by considerations other than the
personal interests of the decisionmaker." Forrester v. White, 484 U.S. 219, 223,
108 S.Ct. 538, 542, 98 L.Ed.2d 555. If the legislator is held personally liable
for suit, however, even the most conscientious public officer will be
encouraged to vote against legislation that may be beneficial for the community
at large for fear that personal liability will outweigh his genuine interest in
helping his constituents. The public officer will think less about the needs of
the city or the county, in order to protect his own monetary and personal
interests. Or, he may even decide to forgo public office altogether. See Wood v.
Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). In sum, the
The same concerns do not arise when local governments are held liable for
violations under 1983. First, city or county liability for constitutional
violations only adds to the collective risk of loss that the legislator already
should be considering when he decides whether or not to enact a new piece of
legislation. If a county policy causes a constitutional wrong, the county should
be made to bear the losses caused by that violation. As Justice Brennan
explained in Owen, the central purpose of the Civil Rights Act was to provide
citizens with a remedy against those who had abused state power. "It hardly
seems unjust to require a municipal defendant which has violated a citizen's
constitutional rights to compensate him for the injury suffered thereby. Indeed
Congress enacted 1983 precisely to provide a remedy for such abuses of
official power." Owen, 445 U.S. at 654, 100 S.Ct. at 1417.
34
In addition, liability on the part of the local governing body may deter future
unconstitutional legislation, thereby contributing to the enforcement of
constitutional norms within our society. "The knowledge that a municipality
will be liable for all of its injurious conduct ... should create an incentive for
officials who may harbor doubts about the lawfulness of their intended actions
to err on the side of protecting citizens' constitutional rights." Id. at 651-52, 100
S.Ct. at 1416. Efforts to enact legislation that causes harm to the community
(including the compensation paid for violation of constitutional rights) should
be chilled.
35
Finally, because a legislator's own money is not at risk, county liability does
not distract the legislator from his job of serving the community's interests.
True, the legislator must contend with lawsuits brought against the county, but
that distraction is borne equally by the local populace as a whole (at least in tax
dollars) and not by any particular individual. If a county council forgoes
enactment of legislation because it fears potential liability for the county under
1983, its decision reflects a rational calculation that, whatever a given policy's
benefits, its risk of liability outweighs its collective benefit to the community.
This is exactly the type of reckoning we want to encourage our legislators to
make.
36
Finally, we note the uniform manner in which our sister circuits have dealt with
this issue. See Berkley v. Common Council of City of Charleston, 63 F.3d 295
(4th Cir.1995), cert, denied, --- U.S. ----, 116 S.Ct. 775, 133 L.Ed.2d 727
(1996); Goldberg, 973 F.2d at 70; Reed v. Village of Shorewood, 704 F.2d 943;
Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982); Hernandez v.
City of Lafayette, 643 F.2d 1188 (5th Cir. Unit A May 1981), cert. denied, 455
U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982). We know of no circuit that
currently accepts the doctrine of municipal legislative immunity under Section
1983.
IV. Conclusion
38
For the reasons stated above, we will affirm the district court's judgment against
the defendants insofar as it holds that neither Tom Foerster, in his individual or
official capacity, nor Allegheny County are entitled to legislative immunity in
this case.
39
I.
40
In 1976, over a strong dissent by Justice Powell, the Supreme Court announced
its decision in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547
(1976), holding that the First and Fourteenth Amendments prohibit the
dismissal of certain government employees on the basis of political affiliation.1
In Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), over
a similar Powell dissent,2 the Court clarified Elrod by making clear that: (1)
Elrod prohibits dismissal on the basis of party affiliation even if the discharged
employee cannot show that he or she was coerced into changing his or her
political allegiance; and (2) government employees can be dismissed for their
party affiliation only when the government can show that certain political
beliefs are necessary to carry out the duties of those offices. Then, in Rutan v.
Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52
(1990), the Court extended the Elrod principle to include hiring as well as
firing. But Justice Scalia, undaunted by a decade and a half of Elrod 's
hegemony, wrote a powerful dissent, building upon the words of Justice
Powell, and assailing the Elrod-Branti-Rutan trilogy as not only amounting to
bad constitutional law, but also as reflecting a deep misunderstanding of the
essential role that the patronage system has played in American history and
political tradition. 3
41
As this recitation suggests, the view that the Elrod-Branti-Rutan trilogy was a
serious mistake will not die. That it will not is, I suspect, because of the
compelling logic of the Powell and Scalia arguments, described infra, as well as
the fact that the total domination of election campaigns by money and special
interests that we have seen in recent years not only adds fuel to the fire of the
Powell and Scalia arguments, but renders them prophetic. The need to
reexamine the trilogy, which is what I will argue for, is thus counseled by new
developments in the years since the trilogy was complete. The need is doubled
in spades by the extreme result in the present case.4
42
The "extreme result" is that the majority has been led by the Elrod trilogy to
rule, in effect, that any political leader who advises his political associates to
discharge a political opponent may be subject to suit under 42 U.S.C. 1983
for a First Amendment violation. Although the present defendant, "Boss"
Foerster, is a public official and a member of the Salary Board, under the
majority's logic, Foerster would be liable as a 1983 co-conspirator if he were
a private citizen-political boss who gave the same "orders" he is charged with
giving here, to me a quite startling proposition. This result causes me to
question whether there is now any limit to examination in the courts or under
the aegis of the courts (through depositions and interrogatories) of any
government personnel or procurement decision that gores the ox of someone
who can claim political foul. And, query whether there is any limit to the
judicial examination of the mental processes and conversations of defendants in
such cases. If there is not, the fundamental premise of representative
government--that it is our public officials who are held accountable for their
actions at the ballot box rather than their political "bosses"--seems not only
challenged, but also undermined.5
43
The 1996 election campaigns were startling in the extent to which the influence
of money and special interest groups so clearly dwarfed the role of the political
parties in affecting the outcomes. But this is the very specter that loomed so
large in the sights of Justice Powell when he decried the results in Branti:
44
Particularly
in a time of growing reliance upon expensive television advertisements,
a candidate who is neither independently wealthy nor capable of attracting
substantial contributions must rely upon party workers to bring his message to the
voters. In contests for less visible offices, a candidate may have no efficient method
of appealing to the voters unless he enlists the efforts of persons who seek reward
through the patronage system. Insofar as the Court's decision today limits the ability
of candidates to present their views to the electorate, our democratic process surely is
weakened.
45
Branti, 445 U.S. at 528-29, 100 S.Ct. at 1300 (Powell, J., dissenting). As the
foregoing comments suggest (and as I will elaborate), I see the trilogy as
extremely deleterious to the national polity. That is because it has seriously
undermined certain traditions that have helped our democracy to flourish.
46
I recognize that I am a judge of an inferior court, but that does not preclude me
from expressing an opinion where I feel strongly that the Supreme Court has
gone down a dangerous path it ought to reconsider. U.S. v. Kennerley, 209 F.
119, 120 (S.D.N.Y.1913) (Hand, J.) ("While, therefore, the demurrer must be
overruled, I hope it is not improper for me to say that the rule as laid down,
however consonant it may be with mid-Victorian morals, does not seem to me
to answer to the understanding and morality of the present time.").
47
II.
48
I begin with a description of the problem clearly identified by the Powell and
Scalia dissents. In essence, the patronage system historically has been critical to
the survival and strength of political parties by allowing party leaders to reward
their party faithful. Strong parties have, in turn, played a crucial democratizing
role: they have stimulated political activity and encouraged meaningful political
debate; they have enabled local candidates for office to attract attention to their
candidacies and galvanize grass-roots organizing; and they have facilitated the
political participation of historically excluded groups, see Rutan, 497 U.S. at
108, 110 S.Ct. at 2755 (Scalia, J., dissenting) ("By supporting and ultimately
dominating a particular party 'machine,' racial and ethnic minorities have--on
the basis of their politics rather than their race or ethnicity--acquired the
patronage awards the machine had to confer.").6
49
Moreover, as Justice Scalia noted in Rutan, the "patronage system does not ...
merely foster political parties in general; it fosters the two-party system in
particular." Id. at 106, 110 S.Ct. at 2754. If patronage jobs are available to
workers who have chosen a winning candidate, campaign workers are more
likely to choose a party with a chance of prevailing, rather than one with nonmainstream views. This tends to foster the preservation of the two-party system,
as parties must ensure that their message has wide appeal to attract rank-andfile members.
50
As I see it, the Elrod trilogy has deprived parties of one of the most effective
tools for building party unity: prospect of future political jobs for a job well
done. The blow that this has dealt patronage systems has contributed to the
need of political candidates to rely almost exclusively on media and moneyintensive campaigns to succeed. That politics has come to be dominated by
money, and hence large contributors and political action committees (PACs)
have achieved a significant sway, has been true for a number of years now, but
it surely cannot be doubted in the wake of the 1996 election campaigns. This
effect has been felt most significantly at the local level, where candidates,
particularly challengers who have no PAC money to draw on, can generate
little support. Without personal wealth, such candidates are doomed to failure.
See Branti, 445 U.S. at 528-29, 100 S.Ct. at 1299-1301 (Powell, J., dissenting).
I, of course, do not mean to suggest that the trilogy is the only reason for the
massive influence of money in election campaigns, nor could I credibly do so
given the ascendency of the mass media over so many aspects of national life,
and the high cost of media advertising. But, it is at least a significant
contributing factor.
51
individual party workers, particularly in local races. "Certainly they have not
made personal contacts unnecessary in campaigns for the lower level offices
that are the foundations of party strength, nor have they replaced the myriad
functions performed by party regulars not directly related to campaigning. And
to the extent such techniques have replaced older methods of campaigning
(partly in response to the limitations the Court has placed on patronage), the
political system is not clearly better off." Rutan, 497 U.S. at 105, 110 S.Ct. at
2753 (Scalia, J., dissenting).
52
The decline of the patronage system has had other significant consequences for
the character of the electoral process. The weakening of the party system
affects the ability of voters to make educated choices among candidates, as
voters with little information about candidates historically have looked to their
party for cues. "With the decline in party stability, voters are less able to blame
or credit a party for the performance of its elected officials. Our national party
system is predicated upon the assumption that political parties sponsor, and are
responsible for, the performance of the persons they nominate for office."
Branti, 445 U.S. at 531, 100 S.Ct. at 1301 (Powell, J., dissenting). Weaker
parties also adversely affect citizen participation in the democratic process.
Contrast the appalling national turnout of 48% in the 1996 presidential election,
notwithstanding the vaunted impact of motor-voter registration laws, with the
much higher turnout in years past when the political parties were stronger. That
in itself is an ominous sign.
53
The deleterious impact of special interest money does not lessen after election
day, as has often been noted. According to Justice Scalia, "[t]he replacement of
a system firmly based in party discipline with one in which each officeholder
comes to his own accommodation with competing interest groups produces 'a
dispersion of political influence that may inhibit a political party from enacting
its programs into law.' " Rutan, 497 U.S. at 107-08, 110 S.Ct. at 2754 (Scalia,
J., dissenting) (quoting Branti, 445 U.S. at 531, 100 S.Ct. at 1301 (Powell, J.,
dissenting)). Additionally, as the decline in party strength hastens the rise of
special interest groups, which are necessarily focused on narrow issues,
government suffers because "candidates and office-holders are forced to be
more responsive to the narrow concerns of unrepresentative special interest
groups than to overarching issues of domestic and foreign policy." Branti, 445
U.S. at 532, 100 S.Ct. at 1302 (Powell, J., dissenting). Such ills, fostered by the
dominance of money in elections, can only grow more significant, as each
election brings more expensive campaigns.
54
In a similar vein, Justice Powell explained that "[s]trong political parties aid
effective governance after election campaigns end. Elected officials depend
upon appointees who hold similar views to carry out their policies and
administer their programs. Patronage ... serves the public interest by facilitating
the implementation of policies endorsed by the electorate." Id. at 529, 100 S.Ct.
at 1300.
55
56
57
At the same time, the regime of the trilogy has created widespread uncertainty
among government officials as to the legality of hiring and firing certain
government employees. The line between who can be discharged for political
affiliation and who cannot under Branti is less than pellucid, to say the least.7
This has required time-consuming and ongoing training of management-level
government employees lest they run afoul of its precepts. In my view, Justice
Powell was right when he said that "[a] constitutional standard that is both
uncertain in its application and impervious to legislative change will now
control selection and removal of key government personnel. Federal judges will
now be the final arbiters as to who federal, state, and local governments may
employ.... [T]he Court is not justified in removing decisions so essential to
responsible and efficient governance from the discretion of legislative and
executive officials." Branti, 445 U.S. at 525-26, 100 S.Ct. at 1298 (Powell, J.,
dissenting).8
58
I acknowledge, of course, that I have not made an empirical study of the impact
of the Elrod trilogy, but a survey of the literature reveals no satisfactory data.9
On a matter such as this, I believe that seasoned judgment of those with
experience in the political process is the best guide. Moreover, I share Justice
Scalia's view that to "oppose our Elrod-Branti jurisprudence, one need not
believe that the patronage system is necessarily desirable; nor even that it is
always and everywhere arguably desirable; but merely that it is a political
arrangement that may sometimes be a reasonable choice, and should therefore
be left to the judgment of the people's elected representatives." Rutan, 497 U.S.
at 110, 110 S.Ct. at 2756 (Scalia, J., dissenting).
III.
59
I do not claim that the patronage system is without flaw. The abuses of the
system have been well documented over the years. But while patronage
systems have their faults, the damage that the Elrod trilogy has done to the
polity weighs, on balance, in favor of permitting elected officials to hire and fire
based on political affiliation. Moreover, what is too often forgotten is that most
patronage appointees--whether maintenance employees of municipalities,
county clerks, or federal judges--perform honorably and well. And when they
do, they bring credit upon the party that had them appointed and justify support
therefor. While a distinction is often made between patronage and merit
appointment, patronage employees are, far more often than not, true merit
employees. The problems of the patronage system can be dealt with, and
historically have been dealt with, through civil service reform and other
measures, rather than through constitutional litigation.
60
Turning to that aspect of the matter, as Justice Powell noted in his Elrod
dissent, the "judgment today unnecessarily constitutionalizes another element
of American life--an element certainly not without its faults but one which
generations have accepted on balance as having merit." Elrod, 427 U.S. at 389,
96 S.Ct. at 2697 (Powell, J., dissenting). I am also concerned by the
proliferation of Elrod-generated litigation (an on-line review reflects that Elrod
has now been cited 1249 times by federal courts alone), which is now
extending rapidly to procurement decisions, such as the award of towing
contracts, in addition to personnel decisions. See O'Hare Truck Serv., Inc. v.
City of Northlake, --- U.S. ----, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996). The
growing number of Elrod-based cases has imposed a burden on federal trial and
appellate courts, embroiling them in the time-consuming and often quite
difficult exercise of divining where a duty is sufficiently policy oriented to
except an employee from Elrod scrutiny.
61
In sum, given the sea change in politics, even since Rutan, characterized
primarily by the decline of political parties and the dominance of elections by
money, I submit that it is time for the Supreme Court to revisit this area of the
law.
62
It seems that the import of the majority's discussion on causation is that, if the
fact-finder determines that the Salary Board would have itself decided to
eliminate plaintiffs' positions, Foerster must be absolved.10 Perhaps I am
incorrect. At all events, the plaintiffs' claim should really be cut off at the pass,
i.e. now. I lament that it cannot be, but hope that the Supreme Court will accept
Justices Powell and Scalia's wisdom. As Justice Frankfurter once stated,
"Wisdom too often never comes, and so one ought not to reject it merely
because it comes late." Henslee v. Union Planters Bank, 335 U.S. 595, 600, 69
S.Ct. 290, 293, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting).
Because the claims against Foerster in his official capacity are in fact claims
against the County, we will refer to the official capacity claims and the county
claims collectively as those against "the County." See Kentucky v. Graham,
473 U.S. 159, 165, 105 S.Ct. 3099, 3104, 87 L.Ed.2d 114 (1985)
See e.g. Dwyer v. Regan, 777 F.2d 825 (2d Cir.1985) (employee brought suit
against state comptroller for wrongful elimination of position); Laskaris v.
Thornburgh, 733 F.2d 260 (3d Cir.1984) (governor and secretary of
transportation, sued for politically motivated elimination of employment
positions)
These cases do not address the issue of legislative immunity per se, presumably
because the defendants never raised it as a defense. Nevertheless, they illustrate
that a single official's elimination of a position of employment, without more,
will not insulate him from liability for constitutional violations.
jurisdiction lightly, see Swint v. Chambers County Commission, 514 U.S. 35,
115 S.Ct. 1203, 131 L.Ed.2d 60 (1995) and we see no reason to apply the
doctrine here
5
But Cf. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748,
69 L.Ed.2d 616 (1981) (municipality not liable for punitive damages under
1983)
Justice Powell was joined in dissent by Chief Justice Burger and Justice
Rehnquist
Justice Powell was joined in dissent by Justice Rehnquist. Justice Stewart also
dissented, but on narrower grounds
Justice Scalia was joined in dissent by Chief Justice Rehnquist, and Justices
O'Connor and Kennedy
I recognize that, as the majority opinion has noted, we cannot reach the merits
at this juncture. But since this case appears to be proceeding apace to a merits
consideration, I think it appropriate to speak out now about the wisdom of the
patronage jurisprudence
Justice Scalia continued: "No one disputes the historical accuracy of this
observation, and there is no reason to think that patronage can no longer serve
that function." Rutan, 497 U.S. at 108, 110 S.Ct. at 2755
In Rutan, Justice Scalia explained the legal morass into which public officials
must wade, citing several circuit and district court opinions:
A city cannot fire a deputy sheriff because of his political affiliation, but then
perhaps he can, especially if he is called the "police captain." A county cannot
fire on that basis its attorney for the department of social services, nor its
assistant attorney for family court, but a city can fire its solicitor and his
assistants, or its assistant city attorney, or its assistant state's attorney, or its
corporation counsel. A city cannot discharge its deputy court clerk for his
political affiliation, but it can fire its legal assistant to the clerk on that basis.
Firing a juvenile court bailiff seems impermissible, but it may be permissible if
This exercise is especially frustrating when the plaintiff has been the
beneficiary of the same partisan political largesse that he or she now decries,
see Elrod, 427 U.S. at 380, 96 S.Ct. at 2693 (Powell, J., dissenting) ("
[B]eneficiaries of a patronage system may not be heard to challenge it when it
comes their turn to be replaced."). In this regard, it is important to note that
these plaintiffs do not have a property interest-based interest in keeping their
jobs, see Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570
(1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972), but rather only a Pickering-like claim based on Elrod, see Pickering v.
Board of Educ. of Township High School Dist., 391 U.S. 563, 88 S.Ct. 1731,
20 L.Ed.2d 811 (1968)
Several studies have concluded that the many arguments in favor of patronage
are misguided. See, e.g., Cynthia Grant Bowman, "We Don't Want Anybody
Anybody Sent": The Death of Patronage Hiring in Chicago, 86 Nw.U.L.Rev. 57
(1991); Anne Freedman, Patronage: An American Tradition 178-83 (1994).
These studies, however, are not supported by persuasive social science research,
in my view. They are generally limited to big-city or historically famous
political machines, see Bowman, supra, or to samples that are too small to
support generalized conclusions, see Rutan, 497 U.S. at 105, 110 S.Ct. at 2753
(Scalia, J., dissenting) (noting that the Court relies on a single study about a
rural Pennsylvania county--Sorauf, Patronage and Party, 3 Midwest J. Pol. Sci.
115 (1959)--which is " 'more persuasive about the ineffectuality of Democratic
leaders in Centre County than about the generalizability of [its] findings' ").
Moreover, notably absent from the work of these commentators are detailed
interviews with politically experienced party workers, who are trying to run
their organizations without patronage, about the effects of the Elrod trilogy. In
the absence of social science research that clearly refutes the arguments in
favor of patronage and in the face of some evidence that these arguments are
correct, we should be careful not to disregard a political system that has
historically been widely used and accepted
I note in this regard that several commentators have drawn on the trilogy
dissents and have expressed varied concerns about the demise of patronage
along the lines that I have argued. See, e.g., Ronald N. Johnson & Gary D.
I note in this regard that antitrust law provides useful insight into the causation
question. Discussing the Supreme Court's refusal in Eastern Railroad Presidents
Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d
464 (1961), to impose Sherman Act liability on private parties who sought to
influence legislation, Professors Areeda and Hovenkamp explained that
"private parties may have influenced or persuaded the government to act, but
the government's decision to act reflects an independent governmental choice,
constituting a supervening 'cause' that breaks the link between a private party's
request and the plaintiff's injury." Phillip E. Areeda & Herbert Hovenkamp,
Antitrust Law 201 (Supp.1996)