Appeal from United States District Court for the Middle District of Pennsylvania; R. Dixon Herman, Judge.
Before Aldisert, Van Dusen and Garth, Circuit Judges.
This appeal from a judgment of the district court entered December 12, 1979, following a decision in a non-jury trial that turned on the court's interpretation of Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), presents the question of whether the proceedings should be remanded for reconsideration in light of the subsequent decision in Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). Inasmuch as Branti established a new test for determining whether a discharge of a public employee for political reasons violates the first amendment, we will vacate the judgment and remand to the district court for reconsideration in light of that decision.
In Elrod the Court held that the newly-elected Democratic sheriff of Cook County, Illinois, had violated the constitutional rights of certain non-civil service employees by discharging them "because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders." 427 U.S. at 351, 96 S. Ct. at 2678. That holding was not supplied by an opinion of the court, but by the separate opinions of Justices Brennan and Stewart. Justice Brennan's plurality opinion concluded that the first amendment protects a public employee from discharge for what he has said or believes with respect to a political contest. Justice Stewart anchored his concurrence on the same amendment but suggested that only "nonpolicymaking, nonconfidential" employees were protected from political discharge. 427 U.S. at 375, 96 S. Ct. at 2690.
Subsequently, in Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir. 1977), we construed Elrod to require consideration of both parts of Justice Stewart's test:
It is true that Mr. Justice Stewart's concurrence in Elrod refers to a "nonpolicymaking, nonconfidential government employee." 427 U.S. at 375, 96 S. Ct. at 2690. In our view the additional adjective-nonconfidential-does not change the basic thrust (of) the plurality opinion, which is directed at policy formulation and representative government. A "confidential government employee" in this sense would not necessarily be one ... who has covert activities as part of his duties, but instead one who is privy to the discussions and information involved in the policymaking process.
555 F.2d at 393 n.5 (emphasis in original).
It was against the background of Elrod and Rosenthal that the district court considered the claim of improper discharge from public office brought by two employees of the City of Scranton, Pennsylvania: Loughney, Superintendent of Public Highways; and Osborne, Superintendent of the Bureau of Refuse. Both positions were under the immediate supervision of the Director of the Department of Public Works. The district court found that Loughney and Osborne were discharged from their positions because of their political affiliations and beliefs. Loughney v. Hickey, 480 F. Supp. 1352, 1360-61 (M.D.Pa.1979). Nevertheless, it denied a claim for relief brought under 42 U.S.C. § 1983. The court was of the view that the plaintiffs participated in the policymaking decisions of the city government and consequently were not protected from political discharge. 480 F. Supp. at 1364.
Were it not for the intervention of the Branti case some four months after the district court's decision, we would have been inclined to affirm. But Branti established a new test: "(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." 445 U.S. at 518, 100 S. Ct. at 1294. It is against the teachings of Branti v. Finkel that the district court must now reconsider this case.
The judgment of the district court will be vacated and the proceedings remanded in accordance with the foregoing.
Each side to pay its own costs.
ALDISERT, Circuit Judge, concurring.
I concur in the result reached by this court because the essence of the common law tradition, unlike the civil law, is that lower courts follow the decisions of higher courts in the same judicial hierarchy.*fn1 But this concurrence is what the gifted scholar B. E. Witkin described as a "reluctant concurrence" or a "concurrence under compulsion."*fn2 I agree with the judgment because my loyalty to the doctrine of stare decisis commands that I follow the decisions of the Supreme Court of the United States.
Institutional loyalty, however, cannot, and should not, dissuade me from registering this statement of vehement disagreement with the result and the reasoning in both Elrod v. Burns, 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976), the progenitor, and its offspring, the "Son of Elrod," Branti v. Finkel, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). In my view, these cases were incorrectly decided. They reflect the apogee of a process that seeks to "constitutionalize" the entire fabric of American society. This process transmutes the United States Constitution from a broad statement of moral values into a detailed code of conduct, ignoring Chief Justice Marshall's admonition that "we must never forget, that it is a constitution we are expounding." McCulloch v. Maryland, 17 U.S. (4 ...