The opinion of the court was delivered by: LUONGO
The plaintiff in this civil rights action is a former hearing examiner for the Pennsylvania Liquor Control Board who contends, inter alia, that his termination from that position infringed his first amendment rights to political expression and association.
The named defendants are the Commonwealth of Pennsylvania, the Pennsylvania Liquor Control Board, the Governor, the Secretary of Budget and Administration, the Director of the Bureau of Labor Relations, and two members of the Liquor Control Board. Jurisdiction is predicated on 28 U.S.C. §§ 1331(a), 1343(3) (1976), with 42 U.S.C. § 1983 (1976) as the remedial vehicle. The action is currently before me on plaintiff's motion for preliminary relief. After evaluating the evidence adduced at the hearing on preliminary injunction, which was held on June 6, 1979, and after considering the arguments advanced in the memoranda submitted by the parties, I conclude that preliminary relief is warranted under the circumstances of this case.
There is virtually no dispute about the facts surrounding Savage's termination.
Savage, who has been a member of the Pennsylvania Bar since 1971, served as a hearing examiner for the Pennsylvania Liquor Control Board (LCB) from April 1977 to March 21, 1979. During that period he received two evaluations, both of which evidence that his performance as a hearing examiner was wholly satisfactory. Plaintiff's Exhibits No. 7, 8. On March 19, 1979, Savage received a call from the office of Murray Dickman, the Deputy Executive Assistant to the Governor, and agreed to a meeting with him on March 21, 1979. Dickman's office did not at that time inform Savage of the purpose of the meeting. On the morning of March 21, 1979, Savage appeared at Dickman's office in Harrisburg; he finally met with Dickman and Richard Glanton, the Governor's counsel, in the early afternoon. The upshot of that meeting was Savage's termination as an LCB hearing examiner.
During the meeting, Dickman informed Savage that Savage's partisan political activities in connection with a special election that was to be held on March 27, 1979, had recently come to Dickman's attention. Savage acknowledged that he was a Democratic Party ward leader and that he had been actively campaigning for the Democratic candidate in the fifth senatorial district. Savage also acknowledged that he was a Democratic Party candidate for city council. After Savage confirmed Dickman's understanding of Savage's role in the then-upcoming election, Dickman proffered a letter of resignation that he had prepared prior to the meeting. Savage read the letter and refused to sign it. Dickman then handed Savage a letter of termination bearing the Governor's signature.
Savage contends that his termination for having exercised his first amendment right to political expression is constitutionally impermissible under the doctrine enunciated in Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). The defendants counter this argument on two grounds. First, they contend that Savage was terminated pursuant to the Governor's policy against partisan political activity by government employees. They assert that this policy was nonpartisan in application, similar to the constitutionally permissible prohibitions contained in the Hatch Act. Second, they argue that Savage does not come within the Elrod doctrine because he is a policy-making, confidential employee.
I. JURISDICTIONAL IMPLICATIONS OF THE ELEVENTH AMENDMENT
Before I consider the relative merits of these arguments, I must first address a jurisdictional question that is raised by the presence here of the Commonwealth and the LCB. That question is whether the eleventh amendment bars suit against these institutional defendants. Sometime after the hearing on preliminary injunction, I requested additional briefing on the eleventh amendment issue, but only insofar as the problem of immunity might affect the relief potentially available to plaintiff should be succeed on the merits.
After reviewing the most recent Supreme Court pronouncements on the relationship between the eleventh amendment and section 1983 (on which plaintiff relies herein), however, I conclude that the eleventh amendment has more serious and wider-ranging implications than I had immediately perceived. The question of eleventh amendment immunity does not color just the remedial phase of litigation, it surfaces at an even more fundamental stage. I refer, of course, to the initial exercise of jurisdiction over the Commonwealth and the LCB. Neither of these two defendants has moved for dismissal on this ground. Nevertheless, because the issue of eleventh amendment immunity is "not merely academic (but rather) "sufficiently partakes of the nature of a jurisdictional bar,' " See Alabama v. Pugh, 438 U.S. 781, 782 & n.1, 98 S. Ct. 3057, 3058, & n.1, 57 L. Ed. 2d 1114 (1978) (quoting Edelman v. Jordan, 415 U.S. 651, 678, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)), I may, and do, raise the question on my own motion.
My inquiry proceeds from the premise that absent consent to suit by the state or clear abrogation of the immunity by Congress, the eleventh amendment insulates from suit both the state and governmental units that are extensions of the state. Alabama v. Pugh, supra, 438 U.S. at 782, 98 S. Ct. 3057, Cited with approval in Quern v. Jordan, 440 U.S. 332, 339-40, 99 S. Ct. 1139, 1144-45, 59 L. Ed. 2d 358 (1979); See Skehan v. Board of Trustees, 590 F.2d 470, 488-91 (3d Cir. 1978), Cert. denied, 444 U.S. 832, 100 S. Ct. 61, 62 L. Ed. 2d 41, (1979) (No. 78-1719); Flesch v. Eastern Pa. Psychiatric Institute, 434 F. Supp. 963, 976-77 (E.D.Pa.1977). Compare Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976), With Edelman v. Jordan, supra, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662. Plaintiff argues by analogy to Fitzpatrick v. Bitzer, supra, that inasmuch as section 1983 is an exercise of congressional authority under section 5 of the fourteenth amendment, section 1983 abrogates the Commonwealth's eleventh amendment immunity. He suggests that the language in both Fitzpatrick v. Bitzer, supra, 427 U.S. at 451-52, 96 S. Ct. 2666, and Edelman v. Jordan, supra, 415 U.S. at 675-77, 94 S. Ct. 1347, noting that section 1983 does Not abrogate the states' eleventh amendment immunity, has been undercut by the decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In Monell, the Supreme Court overruled the holding in Monroe v. Pape, 365 U.S. 167, 187-91, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), that municipalities and other local governmental units were not persons within the meaning of section 1983. 436 U.S. at 690, 98 S. Ct. 2018. Plaintiff argues that the Court's prior refusals to construe section 1983 as limiting the eleventh amendment was rooted in the now-rejected rationale of Monroe v. Pape. See Fitzpatrick v. Bitzer, supra, 427 U.S. at 452, 96 S. Ct. 2666. He contends that
(t)he obvious effect of the court's decision in Monell establishing municipalities as "persons' in 1983 actions is, of course, to recognize the states as equally amenable to (suit). The syllogism outlined by the court in Fitzpatrick, supra, regarding the exclusion of cities in Section 1983 actions and, therefore, the states as well, all of which was predicated upon Monroe v. Pape, supra, clearly requires a contrary result in view of Monell (, a result that would recognize the Commonwealth as) an appropriate party defendant.
Plaintiff's Additional Memorandum of Law (Document No. 12) at 9.
Any suggestion that Monell cast doubt on the Court's prior statements about the impact of section 1983 upon the states' eleventh amendment immunity was effectively foreclosed by the Court in this last term. In Quern v. Jordan, supra, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358, the Court reinforced the continuing vitality of Edelman v. Jordan and its subsequent decisions dealing with the eleventh amendment. After having noted that its holding in Monell was " "limited to local government units which are not considered part of the State for eleventh amendment purposes,' " Id. at 338, 99 S. Ct. at 1144, the Quern majority firmly rejected the argument made by Justice Brennan in his concurring opinion that Congress intended section 1983 to override the states' traditional eleventh amendment immunity. Although the majority agreed that "both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive province of the individual States," Id. at 342, 99 S. Ct. at 1146, they refused to concede that "logic, the circumstances surrounding the adoption of the Fourteenth Amendment, (or) the legislative history of the 1871 Act compel, or even warrant, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States." Id. at 342, 99 S. Ct. at 1146. Pointing to the very limited debate on section 1 of the 1871 Act (the precursor to section 1983), the Court compared the "clearer showing of congressional purpose to abrogate the Eleventh Amendment immunity" relied upon in other cases. Id. at 343, 99 S. Ct. at 1146. "By contrast, § 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States." Id. at 345, 99 S. Ct. at 1147. Accordingly, I reject plaintiff's argument that section 1983 limits the Commonwealth's eleventh amendment immunity.
As I noted at the outset of this discussion, the eleventh amendment concerns do not simply limit the relief available to a plaintiff. Rather, the eleventh amendment poses an absolute bar to the state's joinder as a defendant. Quern v. Jordan, supra, 440 U.S. at 339 - 40, 99 S. Ct. at 1144-45 (citing with approval Alabama v. Pugh, supra, 438 U.S. at 782, 98 S. Ct. 3057). It might perhaps be argued that the Court's allusion in Alabama v. Pugh, supra, 438 U.S. at 781, 98 S. Ct. 3057, to the mandatory nature of the injunctive relief ordered in that case somewhat tempers its statement that suit against the State and the State Board of Corrections is barred unless there is consent or waiver of the eleventh amendment immunity. I doubt, however, that the Court intended its conclusion that the eleventh amendment prohibited the initial assumption of jurisdiction over the state and the state agency to depend upon the nature of the relief. Indeed, I think that this conclusion is implicit in the Quern majority's unqualified approval of the holding in Alabama v. Pugh. 440 U.S. at 339 - 40, 99 S. Ct. at 1144-45.
The eleventh amendment extends "to Any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
As the Court noted in Missouri v. Fiske:
The Eleventh Amendment is an explicit limitation of the judicial power of the United States. . . . However important that power, it cannot extend into the forbidden sphere. . . . The "entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against the State without consent given."
(T)he motive for the adoption of the Eleventh Amendment . . . cannot be regarded, as respondents seem to argue, as restricting the scope of the Amendment to suits to obtain money judgments. The terms of the Amendment . . . were not so limited. Expressly applying to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State.
290 U.S. 18, 25-27, 54 S. Ct. 18, 20-21, 78 L. Ed. 145 (1933) (emphasis added) (citations omitted).
I have no reason to question the current validity of this statement. That the more recent eleventh amendment decisions have focused on the compatibility of the relief ordered with the principles underlying the constitutional grant of immunity is simply a natural consequence of plaintiffs' successful implementation of the Ex parte Young
rationale. See generally Tribe, American Constitutional Law 132-33 & n.23, 144-47 (1978). This modern emphasis in no way overshadows the principles enunciated in Missouri v. Fiske, supra, and neither diminishes the force of the eleventh amendment immunity nor circumscribes its reach.
The import of all this for the instant case is that I am compelled to dismiss those defendants as to which the eleventh amendment operates as a bar to federal jurisdiction. Clearly, the Commonwealth must be dismissed as a party. Equally clearly, so must the LCB. As I noted in Flesch v. Eastern Pa. Psychiatric Institute, supra, 434 F. Supp. at 976-77, whether a government agency partakes of the state's eleventh amendment immunity depends upon whether its powers are "sufficiently distinct and independent from the state as not to be considered a part of the state." I have no difficulty concluding that the LCB is an arm of the state for eleventh amendment purposes. Like the Department of Public Welfare, the Psychiatric Institute, and the State Employees Retirement Board in Flesch, id. at 977, the LCB is an administrative board "subject to all the provisions of The Administrative Code . . . ." 47 Pa.Stat.Ann. § 2-206 (Purdon 1969). Its powers are statutorily circumscribed, as is its ability to promulgate regulations. Id. §§ 2-207 to -208 (Purdon 1969 & Supp. 1979-1980). Although the Board may determine the locations of the state liquor stores, it must lease and equip those stores through the Department of Property and Supplies. Id. §§ 2-207(c), (e), 3-301 (Purdon 1969 & Supp. 1979-1980). The financial affairs of the Board and the state liquor stores are monitored by the Department of the Auditor General. Id. § 3-306 (Purdon 1969). Not only are the Board members' salaries fixed by statute, Id. § 2-201 (Purdon Supp.1979-1980), but the Board's operations are totally dependent upon the Commonwealth for its funding and appropriations. Id. §§ 744-907 to -910 (Purdon 1969 & Supp.1979-1980). Finally, the fact that the Pennsylvania legislature specifically waived its sovereign immunity with respect to damages caused by the sale of liquor at the state liquor stores under certain circumstances evidences the ...