William Fazio v. City and County of San Francisco Arlo Smith
Docket: 96-16981
Court: Court of Appeals for the Ninth Circuit; October 7, 1997; Federal Appellate Court
William Fazio appeals a district court's partial summary judgment favoring the City and County of San Francisco (CCSF) and District Attorney Arlo Smith. Fazio, a former Assistant District Attorney, was terminated by Smith after announcing his candidacy against Smith in the upcoming election. Fazio contends that this termination violated his First Amendment rights. The court, however, upheld the dismissal, determining that Smith's actions did not constitute a legal violation.
Fazio, who had nearly twenty years of experience and held the title 'Head Attorney' in the Homicide Department, asserts that his termination was solely due to his political decision to challenge Smith. While the title 'Head Attorney' lacks a universal definition, it reflects varying levels of experience and supervisory capacity, with Fazio claiming it did not change his core job responsibilities. His role involved managing high-profile cases and engaging with media on significant public issues, earning him a salary exceeding $100,000.
Per San Francisco Charter § 3.402, Assistant District Attorneys serve at-will, meaning they can be terminated without cause. The Charter outlines their prosecutorial duties within the municipal and superior courts. The Ninth Circuit judges affirmed the district court's ruling, reinforcing the legality of Fazio’s termination under the at-will employment doctrine.
Fazio's first amended complaint includes five claims: violation of First Amendment rights, violation of Due Process rights, wrongful termination against public policy, slander, and intentional infliction of emotional distress. CCSF and Smith sought summary judgment on all claims, with the district court partially granting and partially denying the motion. Summary judgment was granted on the First Amendment claim, which was then certified for immediate appeal under 28 U.S.C. § 1292(b). The appellate court accepted Fazio's motion for interlocutory appeal on October 23, 1996.
In reviewing the summary judgment, the standard is de novo, meaning the appellate court must assess whether any genuine issues of material fact exist, viewing evidence favorably for the nonmoving party, and whether the district court correctly applied substantive law. The grant of summary judgment can be upheld on any valid ground present in the record.
To contest a motion for summary judgment, the opposing party must present specific facts demonstrating a genuine issue for trial, supported by significant probative evidence. The trial court's role is to identify genuine factual issues that can only be resolved by a jury.
In cases where government employees claim termination for exercising First Amendment rights, the inquiry involves balancing the employee's interests as a citizen against the state's interest in efficient public service, as established in Pickering v. Board of Education. An exception exists for policymakers, who can be dismissed for political reasons without constitutional violations, as articulated in Elrod v. Burns. The Supreme Court further clarified in Branti v. Finkel that determining whether an employee qualifies as a policymaker hinges on whether party affiliation is necessary for the effective performance of the job, noting that public defenders do not fall under this requirement.
The Branti decision clarifies that its holding may not apply to District Attorneys, distinguishing their roles from those of other officials. It does not express an opinion on whether a deputy could be dismissed based on political affiliation. The rationale from Elrod and Branti may also apply to dismissals related to a public employee's political activities, such as campaigning against their employer. The text emphasizes that if a public official can terminate an employee for mere political party affiliation, they can similarly dismiss an employee who actively seeks to replace them.
In evaluating a public employee's claim of termination for exercising First Amendment rights, the Pickering balancing test is generally used. However, if the employee is identified as a policymaker, the Elrod and Branti standards apply, allowing for termination based on political reasons without violating First Amendment rights. The determination of whether Fazio’s role was a policymaking one is central to the case.
Fazio argues for the application of the Pickering test based on two cases. In Connick v. Myers, the Supreme Court applied the Pickering test to an Assistant District Attorney's termination after distributing a questionnaire about office policies, without addressing whether such positions are inherently policymaking. In Finkelstein v. Bergna, it was noted that the protection of assistant prosecutors under the First Amendment was not clearly established at the time.
Fazio contends that the focus of Connick on public concern topics undermines the notion that all Assistant District Attorneys are considered policymakers. However, the analysis in Connick did not address the policymaker status of Assistant District Attorneys, indicating that it should not be interpreted to mean they are categorically excluded from being considered as such.
In the case at hand, the distinction between civil service and at-will positions is crucial. Finkelstein, a civil service employee, had a property interest in his job, unlike Fazio, who held an at-will position. The Finkelstein ruling highlighted that at-will Assistant District Attorneys could be dismissed for political reasons without violating the First Amendment, referencing the Elrod policymaking exception and relevant case law. Fazio argues that his role as Head Attorney/Assistant District Attorney does not constitute a policymaking position, claiming his responsibilities mirror those of other assistant district attorneys, and thus the Elrod-Branti exception should not apply, advocating for assessment under the Pickering balancing test. However, the term "policymaker" in this context refers to positions where political considerations are essential for effective performance. The Third Circuit has affirmed that Assistant District Attorneys fit within the Elrod-Branti exception, as exemplified in Mummau v. Ranck, where the court determined that the powers assigned to Assistant District Attorneys were broad enough to justify their classification as policymakers, regardless of their actual duties. This aligns with the notion that such positions may be terminated for political reasons without infringing upon First Amendment rights, provided that the role entails responsibilities tied to policy implementation.
In Livas v. Petka, the Seventh Circuit ruled that an assistant prosecutor is considered a policymaker and can be terminated based on the prosecutor's loss of confidence, aligning with the Elrod precedent. The court emphasized that prosecutors serve the public rather than individual clients, and while prosecutors create policies, assistant prosecutors may also make decisions that shape policy. Most circuit courts have concluded that attorney positions in government service, except for public defenders, are not protected from politically motivated dismissals under Elrod/Branti. Specifically, in the case of Assistant District Attorney Fazio, it was determined that he served as a policymaker due to his significant responsibilities and autonomy, despite having similar powers to rank-and-file assistants. The Supreme Court's Connick case did not address whether Assistant District Attorneys are policymakers. Fazio did not provide evidence that his position was protected or that he could oppose his employer in an election without risk of termination. Consequently, his dismissal was not a violation of the First Amendment. The court did not consider Fazio's claim under the Pickering balancing test or Smith's assertion of qualified immunity, as the policymaking status of Fazio's position was sufficient for the ruling.
Fazio's role as an Assistant District Attorney is classified as a policymaking position, allowing his termination by Smith without violating the First Amendment, due to Fazio's political candidacy against Smith in the upcoming election. The court affirmed the district court's summary judgment favoring the Appellees. In assessing whether a position is policymaking, factors include the responsibilities, pay, technical competence, control over others, authority to represent policymakers, public perception, influence on programs, and responsiveness to political dynamics. The ruling references previous cases (Elrod and Branti) concerning patronage dismissals based on political affiliation. Additionally, government officials can claim immunity from civil suits if their actions do not breach clearly established rights.
