On Appeal from the United States District Court for the District of New Jersey; D.C. Civil No. 89-00020.
Dolores K. Sloviter, Chief Judge,*fn* Nygaard, Circuit Judge, and Marvin Katz, District Judge.*fn**
In this appeal we revisit the application of the Supreme Court's decisions holding that firing of state and municipal employees for political purposes violates the First Amendment. In a suit filed by the former deputy municipal clerk of Mantua Township, the district court granted the defendants' motion for summary judgment, holding that the Township Committee could properly consider the deputy clerk's political affiliation in failing to reappoint her. Plaintiff appeals, arguing that the district court erred as a matter of law.
Jeanette Zold was employed as deputy township clerk in Mantua Township, New Jersey, from September 1987 through December 1988. Zold is active in the local Democratic Party. The Democrats lost control of the five-member Township Committee to the Republicans in the November 1988 election. Zold's one-year appointment ended the following month, and she was not reappointed to her job as deputy clerk. A letter of termination from the committeeman who is now mayor, Republican William Good, stated that he appreciated the "good work and cooperation" Zold had given him as deputy clerk "without any thought as to political affiliation." App. at 3. Good also stated, "the rest of my party doesn't know you as I feel I do," and that if they did, "then they wouldn't have even thought about replacing you." Id.
Zold filed this action under 42 U.S.C. § 1983 against the Township of Mantua, Mayor Good, who as noted above was a committeeman at the relevant time, and his two Republican committeemen colleagues alleging that they violated her First Amendment rights by firing her on the basis of her political beliefs. After discovery, all parties filed motions for summary judgment. The district court held that there was an issue of fact as to whether the Committee failed to reappoint Zold because of her poor job performance, as the defendants contended, and that it could not give summary judgment for defendants on that basis. However, the court granted the defendants' motion for summary judgment because it concluded that the position of deputy clerk was a confidential job and therefore the Township Committee could properly consider Zold's political affiliation in its decision not to reappoint her. Zold v. Mantua, 737 F. Supp. 308, 318 (D.N.J. 1990).
The Supreme Court has held that the dismissal of certain public employees solely because of their partisan political affiliation infringes their First Amendment rights of belief and association. See Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). "A nonpolicymaking, nonconfidential government employee" cannot be discharged on the sole ground of his or her political beliefs. Elrod, 427 U.S. at 375 (Stewart, J., concurring). On the other hand, party affiliation may be an acceptable requirement "if an employee's private political beliefs would interfere with the discharge of his public duties." Branti, 445 U.S. at 517. An employee who "acts as an advisor or formulates plans for the implementation of broad goals" is in that position. Elrod, 427 U.S. at 367-68, 375.
However, "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. This court has stated, "should a difference in party affiliation be highly likely to cause an official to be ineffective in carrying out the duties and responsibilities of the office, dismissals for that reason would not offend the First Amendment." Ness v. Marshall, 660 F.2d 517, 521 (3d Cir. 1981). The burden of proof is on the defendant to demonstrate "an overriding interest" in order to validate an encroachment on an employee's First Amendment rights. Elrod, 427 U.S. at 368.
It is not always easy to determine whether political affiliation is a legitimate factor to be considered for a particular job. Branti, 445 U.S. at 518; Elrod, 427 U.S. at 367-68; Rosenthal v. Rizzo, 555 F.2d 390, 393 n.5 (3d Cir.), cert. denied, 434 U.S. 892, 54 L. Ed. 2d 178, 98 S. Ct. 268 (1977). "The nature of the responsibilities is critical. . . . The political loyalty 'justification is a matter of proof, or at least argument, directed at particular kinds of jobs.'" Elrod, 427 U.S. at 367-68 (citation omitted).
Each decision is, of course, fact specific for that case. Thus, we have held that a public employer may discharge on the sole basis of political affiliation such employees as a city solicitor and his assistants, Ness, 660 F.2d at 522, and a county's assistant director for public information, Brown v. Trench, 787 F.2d 167, 170 (3d Cir. 1986). On the other hand, we have held that a county's second deputy recorder of deeds is protected under Elrod and Branti, even though the recorder (whom the second deputy could succeed) is an elected official. Furlong v. Gudknecht, 808 F.2d 233, 236-37 (3d Cir. 1986); see also Savarese v. Agriss, 883 F.2d 1194 (3d Cir. 1989) (affirming a judgment that the director of a county transportation authority was improperly fired for political reasons).
In cases implicating the First Amendment, it is the responsibility of the appellate court to "make an independent examination of the whole record." New York Times Co. v. Sullivan, 376 U.S. 254, 285, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964) (quoting Edwards v. South Carolina, 372 U.S. 229, 235, 9 L. Ed. 2d 697, 83 S. Ct. 680 (1963)). When the issue on appeal turns on a constitutional fact, i.e., "a fact whose 'determination is decisive of constitutional rights,'" New Jersey Citizen Action v. Edison Township, 797 F.2d 1250, 1259 (3d Cir. 1986), appellate courts have the obligation to give such facts special scrutiny. Constitutional litigation "demands fact analysis of the most particularized kind." Id. (citations omitted). The Supreme Court has explained that the doctrine of constitutional facts enables the appellate court "to assure [itself] that the judgment does not constitute a forbidden intrusion on the field of free expression." New York Times, 376 U.S. at 285.
An appellate court in such instances may draw its own inference from facts in the record. Bender v. Williamsport Area School Dist., 741 F.2d 538, 542 n.3 (3d Cir. 1984). Thus, for example, in Branti the Supreme Court reviewed the facts on record and concluded that it was manifest that the continued employment of an assistant Public Defender could not properly be conditional upon his allegiance to the political party in control of the county government. 445 U.S. at 519. Similarly, the Court concluded in Elrod that non-civil service employees in a county sheriff's office, including the chief ...