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Furlong v. Gudknecht

argued: August 20, 1986.

FURLONG, JAMES F.
v.
GUDKNECHT, EDWARD, INDIVIDUALLY AND AS THE RECORDER OF DEEDS OF BUCKS COUNTY AND COUNTY OF BUCKS, EDWARD GUDKNECHT, INDIVIDUALLY AND AS THE RECORDER OF DEEDS OF BUCKS COUNTY, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 86-0136).

Author: Mansmann

Before BECKER and MANSMANN, Circuit Judges, and TEITELBAUM, District Judge.*fn*

MANSMANN, Circuit Judge.

The central issue we are asked to address in this political discharge case is whether the potential for statutory succession to an elected office by an appointed deputy with ministerial duties is sufficient to demonstrate that "party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti v. Finkel, 445 U.S. 507, 518, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980). Holding that it was not, the district court granted a motion to enjoin preliminary the defendant, Edward Gudknecht, the newly elected Republican Recorder of Deeds for the County of Bucks, from terminating the plaintiff, a Democrat, as Second Deputy to the Recorder of Deeds, a job he held for eight years. We find that, although the potential for succession is important in theory, political affiliation is inapposite to the duties of the elected office and the possibility of succession is so de minimis that the Branti burden of proof on the public employer has not been demonstrated. We will, therefore, affirm the district court's order.

I.

The plaintiff, James F. Furlong, is a registered Democrat. In January of 1978, the Democratic Recorder of Deeds for the County of Bucks, Lucille Trench, appointed Furlong to serve as Second Deputy Recorder of Deeds. Trench reappointed the plaintiff for Trench's second four-year term in 1982.

In November of 1985, a Republican, defendant Edward Gudknecht, was elected Recorder of Deeds. Furlong had actively supported the defendant's opponent, Democrat Janice DeVito, throughout her campaign. On January 3, 1986, Gudknecht informed Furlong that Gudknecht would terminate him on January 6, 1986, and would appoint Lillian Strawn, a Republican, as Second Deputy Recorder.

Furlong immediately filed a complaint alleging federal and state causes of action and seeking injunctive and monetary relief. The plaintiff simultaneously moved for a temporary restraining order and for a preliminary injunction to preclude Gudknecht from firing, or failing to retain, him in office.

Following a hearing, the district judge issued a bench opinion analyzing the evidence in light of the likelihood of the plaintiff's success on the merits, the potential for irreparable injury absent temporary relief, the possibility of harm to third parties, and the public interest. See Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-920 (3d Cir. 1974). On January 15, 1986, the district court entered an order granting Furlong's motions for a temporary restraining order and for a preliminary injunction. This appeal followed. We possess jurisdiction to review the preliminary injunction pursuant to 28 U.S.C. ยง 1292(a)(1)(1982).

II.

The Supreme Court has twice proscribed dismissals of public employees solely for their political affiliation. Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976); Branti, 445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. 2d 574 . Simultaneously, the Court has clarified that the First Amendment permits some patronage discharges.

Justice Stewart's concurrence in Elrod distilled a single issue from the plurality's opinion:

whenever a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.

Elrod, 427 U.S. at 375 (Stewart, J., concurring). The Court subsequently focused its holding in Branti.*fn1

In sum, the 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.

Branti, 445 U.S. at 518.

In a similar case also arising from Bucks County, Pennsylvania, Brown v. Trench, 787 F.2d 167 (3d Cir. 1986), we observed that, despite Branti's focus, the opinion failed to specify particular factors tending to answer its "ultimate inquiry." Id. at 169.

After surveying several cases following Branti, however, we discern the "key factor" to be "whether the employee has 'meaningful input into decision making concerning the nature and scope of a major . . . program." Id. at 169-170, quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir. 1981), cert. denied, 455 U.S. 1021, 72 L. Ed. 2d 139, 102 S. Ct. 1719 (1982). More recently, we have chosen to construe Branti narrowly. Horn v. Kean, 796 F.2d 668 (3d Cir. 1986). Mindful of these standards, we turn to the defendant's points of error.

III.

A.

The defendant argues that the district court erroneously found party affiliation irrelevant to the office of the Second Deputy Recorder of Deeds. On review of a district court's grant of a preliminary injunction, "unless that court abuses its discretion, commits an obvious error in applying the law, or makes a serious mistake in considering the proof, the appellate court must take the judgment of the trial court as presumptively correct." Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 958 (3d Cir. 1984). See National Land & Investment Co. v. Specter, 428 F.2d 91, 95 (3d Cir. 1970).

We have reviewed the testimony relating to the duties of the deputy recorders and we cannot label "clearly erroneous" the district court's factual view that the deputy records occupy purely ministerial, if not clerical, positions. Cf. Rosenthal v. Rizzo, 555 F.2d 390, 393 & n. 3, 5 (3d Cir.), cert. denied, 434 U.S. 892, 54 L. Ed. 2d 178, 98 S. Ct. 268 (1977) (noting that the questions of the plaintiff's status as a policymaker vel non ...


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