Walter T. Peters, Jr. v. Delaware River Port Authority of Pennsylvania and New Jersey

NYGAARD, Circuit Judge,

concurring and dissenting:

I join in parts I-III(A) of the majority opinion. I respectfully dissent because I believe the district court correctly concluded that the exception to the Elrod-Branti-Ru-tan doctrine was both inapplicable to the DRPA and unwarranted by these facts.

I.

It is well to first place the issue in perspective and note just what this case is all about. It is about a political party’s power to command membership or some pledge of allegiance to the party as a requirement for public employment. It is about Walter T. Peters’ constitutional right secured by the First and Fourteenth Amendments to affiliate with the political party of his choice without fear that he will lose his livelihood as a result. I begin with the law as set forth by the Supreme Court. In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a plurality of the Court annunciated a “positional” test and held that public employees’ political affiliation enjoyed constitutional protection and one could not be dismissed on the basis of party affiliation unless one held a “policymaking” position. See id. at 367, 96 S.Ct. at 2687 (plurality op.); id. at 374-75, 96 S.Ct. at 2690 (Stewart, J., concurring). Writing for the plurality, Justice Brennan pointed out that political affiliation is protected by the First Amendment; accordingly, for a political patronage dismissal to be justified, the governmental body must demonstrate that it possesses an overriding (not merely legitimate) reason before encroaching on the employee’s constitutional rights. Moreover, the interest of the government must not be confused with that of a political party; the interest asserted must belong to the government in its governmental role. Finally, the in-fiingement of protected rights must be the least restrictive one possible. Id. at 362-63, 96 S.Ct. at 2684—85.17

Thus, the plurality held that merely because an employee belongs to a different political party than the one currently in power does not support the inference that he or she will undermine governmental effectiveness and can be dismissed solely on partisan grounds, noting that an ineffective or insubordinate employee may be fired for good cause. Id. at 365-66, 96 S.Ct. at 2685-86. The plurality instead carved out a very narrow exception for policymaking positions. Id. at 367, 96 S.Ct. at 2687. It acknowledged that the line between policymaking and non-policymaking positions is difficult to draw and placed the burden of proving the policy-*1360making nature of the jeopardized position on the government.

Four years later, in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), a clear majority of the Court refined and tightened the exception recognized by the Elrod plurality by adding a “personal” overlay. First, the Court stated that only if an employee’s political beliefs would (not “could”) interfere with the performance of his or her duties, could an employee’s constitutional rights could be overridden and the employee dismissed for political reasons. Id. at 517, 100 S.Ct. at 1294. Second, the Court re-examined the Elrod “positional” test and determined that “party affiliation is not necessarily relevant to every policymaking or confidential position.” Id. at 518, 100 S.Ct. at 1295. It then recast the Elrod test as follows:

[T]he ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

Id. The Court held that an assistant public defender could not be dismissed because of his or her political beliefs. Although the job of a public defender might well entail policy-making and would certainly involve confidential information, both factors concerned only the representation of criminal defendants and had no impact on the governmental process. Id. at 519, 100 S.Ct. at 1295.

We too have given close scrutiny to any contention that a position was subject to political dismissal. In three cases, we further defined the Elrod-Branti burden and set forth a standard that only when a difference in political affiliation is “highly likely” to make the employee ineffective, may a politically motivated dismissal pass constitutional muster. Waskovich v. Morgano, 2 F.3d 1292, 1297 (3d Cir.1993); Zold v. Township of Mantua, 935 F.2d 633, 635 (3d Cir.1991); Ness v. Marshall, 660 F.2d 517, 521 (3d Cir.1981). The majority dismisses this standard as essentially mere dictum (maj. op. at 1353-54). I disagree.

The majority is correct, so far as it goes, that in Ness, we did not explicitly hold that “highly likely” was the burden to be met in all cases. We did, however, repeat this formulation of the standard in both Zold and Waskovich. Moreover, in Waskovich, we noted that the exception for political dismissals is a narrow one. 2 F.3d at 1297 (citing Burns v. County of Cambria, 971 F.2d 1015, 1023 (3d Cir.1992)). This alone counsels against the majority’s expansion of the El-rod-Branti exception.

More importantly, I think the majority incorrectly cramps the scope of Peters’ First Amendment rights. In Zold, we cited Elrod for the proposition that the government must demonstrate an “overriding interest” to justify an exception to the general rule forbidding a politically motivated dismissal. 935 F.2d at 635. This discussion took place in the same paragraph in which we cited the Ness “highly likely” standard. The majority fails to recognize what was implicit in Zold and is obvious in any event: if a political difference is not highly likely to render an employee ineffective in his or her assigned duties, the government interest in a politically motivated dismissal cannot possibly override his or her constitutional rights.

Properly viewed, then, the Elrod-Branti exception for policymaking positions is just that — an exception — sparingly granted and narrowly construed to cover situations in which a governmental decisionmaker or body, accountable to a political party and whose power is delegated to it by the people, has the legitimate expectation that a specific key employee both shares with it the same viewpoint mandated by a ballot to the dominant party, and moreover, will effectuate governmental policies accordingly. Applying the test to Ness, we concluded that a city solicitor who reported to the mayor could be dismissed for partisan political reasons. 660 F.2d at 521. The solicitor was an expert on whom the mayor relied to render opinions, draft ordinances and negotiate contracts. We stated that the mayor who is, after all, a party’s nominee and elected by partisan ballot, “has the right to receive the complete cooperation and loyalty of a trusted adviser, *1361and should not be expected to settle for less.” Id. at 522.

II.

This brings me to the particulars of this case. While undoubtedly the DRPA, like any governmental agency or business, has a need for a loyal confidant in the position of Secretary, this need cannot come within the Elrod-Brcmti exception unless the loyalty is not merely to the position, but is necessarily to a partisan political interest. See Burns, 971 F.2d at 1022 (citing Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 241-42 (1st Cir.1986) (en bane) (“A threshold inquiry, which derives from Branti, involves examining whether the position at issue, no matter how policy-influencing or confidential it may be, relates to partisan political concerns.'... Otherwise stated, do party goals or programs affect the direction, pace, or quality of governance?” (citations and internal quotations omitted)). The majority strives mightily to demonstrate how the structure, organization and functions of the DRPA relate to a political party’s interest. It is unable, however, to refute the reasoning of the district court that, although the DRPA no doubt has “broad powers” (as do many government agencies and businesses), it is inherently and functionally nonpartisan. That is to say, its job remains the same regardless of any shifts in party power.

First, the majority notes that there is “room for principled disagreement on policy goals or their implementation.” (Maj. op. at 1354-55.) Of that I have no doubt; yet, the same would be true of a doctor in a government hospital or a football coach at a state university. Without a nexus to partisan processes, however, this fact is quite irrelevant. See Branti 445 U.S. at 518, 100 S.Ct. at 1295.

Second, the majority points to the possibility of political consequences stemming from the success or failure of DRPA policies. This is also true — and equally irrelevant to the analysis. What the majority fails to recognize is that those consequences would have no significant impact on the party of an elected political administration. Assume for example, that Peters somehow subverted for political ends the bridge maintenance plans of the DRPA, causing traffic delays and resulting in irate commuters. No doubt this subversion would make the DRPA an unpopular entity, but no more so than if a local road supervisor failed to repair potholes in the road. Both could be fired for cause, but the political affiliation of neither is material. I conclude the partisan processes are simply too removed from the affairs of the DRPA for Peters’ party affiliation to adversely affect its government processes.

Third, the majority argues that, because of the bi-state nature of the DRPA and its need to interact with the elected officials of both states, its staff members must be “politically sophisticated” (maj. op. at 1356). That fact, however, does not by itself create a nexus with partisan political concerns that relate directly to the success or failure of the party’s policy agenda. Many positions in government and business require the ability to deal with and lobby political bodies and officials of both parties. “Political sophistication,” quite simply, is not the test enunciated by Elrod and Branti.

Fourth, the majority asserts that “political reality” dictates that political affiliation is relevant to maintain the balance of power on the DRPA between New Jersey and Pennsylvania (maj. op. at 1356-57). Specifically, the majority regards the fact that the positions of Secretary and Treasurer may be filled by DRPA commissioners as some evidence that party loyalty and affiliation was considered relevant to those positions by the drafters of the DRPA Compact. I disagree. If anything, I think the requirements of the Compact show quite the opposite. The Compact requires that the Chairman and Vice-Chairman of the DRPA be sitting commissioners, while the Secretary and Treasurer need not be. That requirement is strong evidence of which positions the drafters thought were partisan. Because the Compact permits the latter two positions to be filled by non-commissioners, it follows that *1362party loyalty is simply not relevant to the duties of the Secretary and Treasurer. “Political reality” is only a euphemism for the functionally illegitimate practice of rewarding the party faithful and is hence “at war with the deeper traditions of democracy embodied in the First Amendment.” Elrod, 427 U.S. at 357, 96 S.Ct. at 2682 (citing Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (7th Cir.1972)). It has no business in the equation by which we counterbalance a constitutionally protected interest.

Additionally, I note that the commissioners, with the exception of the two ex officio members from Pennsylvania, serve for five-year terms, while the term of the New Jersey and Pennsylvania governors is four years. Had the drafters of the Compact considered political affiliation and responsiveness to partisan politics in both states to be essential to the governance of the DRPA, it follows that the commissioners would have been given four-year terms. If anything, then, these five-year terms are compelling evidence of the drafter’s intent to keep the DRPA out of patronage and partisan politics.

Moreover, that a majority of the commissioners from each state is required for the DRPA to act is also evidence that the DRPA is intended to be insulated from partisan politics. For example, assume New Jersey’s Republican governor appoints eight Republicans to the DRPA, while Pennsylvania’s Democratic governor appoints six Democrats. Assume further that the Pennsylvania State Treasurer and Auditor General are both Republicans. Republicans would then hold a 10-6 majority on the DRPA. Yet, if the six Pennsylvania Democrats held together in opposition to a plan put forth by all the Republicans, the plan could not be implemented by the DRPA. If the DRPA were intended to be responsive to partisan political pressures, one would not find such a provision in its Compact.

I have no doubt that the DRPA, regardless of design, is not apolitical. It responds to the governmental interests of the State of New Jersey and the Commonwealth of Pennsylvania. That, however, is not a partisan political concern. Simply stated, it cannot be said that party affiliation is a requirement for efficient performance of Peters’ duties, which is the minimum the Elrod-Branti line of cases require if he is to be subject to political dismissal. I would therefore affirm. I believe the majority has misconstrued the rationale and purpose behind the political dismissal doctrine and has broadened the exception to the point that it endangers the rule. Walter T. Peters was fired because of his political beliefs and party affiliation, and from a position where neither mattered. I respectfully dissent.

Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, and LEWIS, Circuit Judges.

. This principle was reaffirmed by a majority of the court in Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 2736, 111 L.Ed.2d 52 (1990).