Carver v. Foerster

Opinions of the United

1996 Decisions States Court of Appeals

for the Third Circuit

12-12-1996

Carver v. Foerster

Precedential or Non-Precedential:

Docket 96-3008

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-3008

PHYLLIS CARVER; THOMAS FOX; APRIL MOORE; ROBERTA RUDOLPH

v.

TOM FOERSTER, an individual and Chairman, Allegheny

County Commissioners; COUNTY OF ALLEGHENY

Appellants.

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 93-cv-00912)

Argued September 17, 1996

Before: BECKER, NYGAARD and ROTH, Circuit Judges

(Opinion Filed December 12, 1996)

Paul D. Boas, Esq. (Argued)

Mark D. Lancaster, Esq.

Berlin, Boas & Isaacson

429 Fourth Avenue

1906 Law & Finance Building

Pittsburgh, PA 15219

Attorneys for Appellees

Mark R. Hornak, Esq. (Argued)

Gregory A. Miller, Esq.

Buchanan Ingersoll Professional Corporation

One Oxford Centre

301 Grant Street

20th Floor

Pittsburgh, PA 15219-1410

Attorneys for Appellants

OPINION OF THE COURT

Roth, Circuit Judge:

Plaintiffs brought suit under 42 U.S.C. § 1983 against

Allegheny County and Tom Foerster, Chairman of the Board of

Commissioners of Allegheny County and a member of the Allegheny

County Salary Board, charging that Foerster had eliminated their

jobs with Allegheny County because they supported Joe Brimmeier

in the Democratic primary for Prothonotary. Allegheny County and

Foerster moved for summary judgment based on absolute legislative

immunity because plaintiffs' positions had been eliminated by a

vote of the Salary Board. Foerster also claimed qualified

immunity for his actions as a member of the Salary Board. The

district court denied the motions on the ground that Foerster was

not entitled to absolute or qualified immunity for his pre-vote

activities and that municipalities do not enjoy legislative

immunity from Section 1983 suits. Both defendants appeal the

denial of absolute legislative immunity. We agree with the

district court's reasoning and will affirm.

I. Facts

Tom Foerster was Chairman of the County Board of

Commissioners and a member of the Salary Board throughout the time

the events in question took place. The Allegheny Salary Board is

composed of four members: three County Commissioners and the

County Controller. The Board sets the maximum and minimum salary

range for County jobs. It is also the only entity within the

County with the power to create or eliminate positions.

In May 1991, Joe Brimmeier, a former aide to Foerster,

ran in the Democratic primary for the position of Prothonotary of

Allegheny County. Foerster vocally opposed Brimmeier's candidacy.

The four plaintiffs actively supported Brimmeier in the primary

election. Brimmeier lost.

Foerster was re-elected Commissioner in November, 1991.

Following the election, James Dodaro, the County Solicitor,

notified Foerster of his plan to resign at the end of the year.

Foerster appointed Ira Weiss to replace Dodaro as of January 6,

1992. On January 3, three days before his appointment was

effective, Weiss fired plaintiffs, Roberta Rudolph and April Moore,

and told them that their positions as administrative assistant and

Risk Manager were being eliminated. When Dodaro intervened to ask

Weiss to keep Rudolph and Moore, Weiss reportedly replied, "No,

they want them out now." Rudolph and Moore were offered alternate

positions as typists at approximately half their salaries. They

rejected these positions. On January 8, 1992, five days after

notifying Rudolph and Moore that their jobs were eliminated, Weiss

signed a request asking the Salary Board to eliminate nine

positions, including those held by Rudolph and Moore. On January

16, 1992, the Salary Board unanimously approved the request.

Plaintiffs Phyllis Carver and Thomas Fox held positions

in the Department of Development. Carver was a planning and

evaluation specialist, and Fox was manager of marketing. Shortly

after Brimmeier's candidacy for Prothonotary failed, Foerster

allegedly had Wayne Fusaro, one of his Executive Aides, compile a

"hit list" of Brimmeier supporters. The list reportedly included

Carver and Fox.

On June 19, 1992, George Braun, the Director of

Development, notified Carver and Fox that he was eliminating their

positions because of budgetary concerns. Two other positions within

the Department of Development were eliminated at the same time.

Braun submitted his request for Salary Board action on June 12, and

the Salary Board unanimously approved his recommendation for

termination on June 18. Neither Fox nor Carver were offered

positions elsewhere in county government.

According to the defendants, Braun's elimination of the

positions was spurred by a Federal Housing and Urban Development

audit, which had found excessive administration expenses by the

department. The defendants assert that the positions were

eliminated as part of a larger attempt to keep down administrative

costs. The defendants further contend that at the same two

sessions that the plaintiffs lost their positions, the Salary Board

took additional actions affecting 19 other county departments,

resulting in the elimination of twenty two other positions. In her

Report and Recommendation, however, the magistrate judge noted that

about the time Fox and Carver's positions were eliminated, three

new positions were created in the Department of Development and

other employees received raises.

The plaintiffs assert that the Salary Board would

automatically approve any proposal to eliminate jobs without

independent consideration and that once Foerster made it known that

he wanted plaintiffs' positions eliminated, the vote of the Salary

Board was a mere formality.

On June 9, 1993, the plaintiffs filed suit against

Allegheny County and against Foerster, individually and in his

official capacity as Chairman of the Allegheny County Board of

Commissioners. After extensive discovery, defendants filed for

summary judgment. The magistrate judge denied defendants' motion.

The District Court adopted the magistrate judge's report and

recommendation. Defendants have appealed that portion of the

District Court's decision relating to absolute legislative

immunity, as well as those defenses "inextricably intertwined" with

their immunity claims.

II. Jurisdiction and Standard of Review

Ordinarily, this court does not have jurisdiction to

review a lower court's denial of summary judgment since a denial of

summary judgment does not constitute a "final decision" within the

meaning of 28 U.S.C. 1291. See In re City of Philadelphia

Litigation, 49 F.3d 945, 956 (3d Cir.), cert. denied, 116 S.Ct. 176

(1995). When the summary judgment motion is premised on absolute

immunity, however, the district court's denial is immediately

appealable because it falls within the collateral order doctrine:

"that small class [of orders] which finally determine claims of

right separable from, and collateral to, rights asserted in the

action, too important to be denied review and too independent of

the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated." Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26

(1949).

Absolute immunity is an issue of law, separable from the

merits of the case, which once denied cannot effectively be

preserved for later review by an appellate court. "[T]he denial

of a substantial claim of absolute immunity is an order appealable

before final judgment, for the essence of absolute immunity is its

possessor's entitlement not to have to answer for his conduct in a

civil damages action." Mitchell v. Forsyth, 472 U.S. 511, 525, 105

S.Ct. 2806, 2815 (1985) (ruling on qualified immunity immediately

appealable). See also See also Nixon v. Fitzgerald, 457 U.S. 731,

741-43, 102 S.Ct. 2690, 2697-98 (denial of presidential immunity

immediately reviewable on appeal) and Acierno v. Cloutier, 40 F.3d.

597, 606 (3d Cir. 1994): "The Nixon case makes clear that we have

appellate jurisdiction to consider whether the former members of

the County Council are entitled to absolute legislative immunity."

A district court's denial of summary judgment, premised

on absolute legislative immunity, is therefore immediately

appealable. For this reason, we have jurisdiction to consider the

district court's denial of summary judgment with regard to the

immunity claims. Moreover, because absolute immunity is a purely

legal question, we exercise plenary review over the district

court's decision. Acierno, 40 F.3d at 609, citing Donivan v.

Dallastown Borough, 835 F.2d 486, 487 (3d Cir. 1987) cert. denied495 U.S.

1035, 108 S.Ct. 1596 (1988).

III. Foerster's Individual Claim to Legislative Immunity According

to Foerster, he is entitled in his individual

capacity to absolute legislative immunity from suit because of his

membership on the Salary Board, the governing body that ultimately

approved the elimination of the plaintiffs' positions with the

County. Plaintiffs respond that their complaint does not concern

Foerster's vote as a member of the Salary Board but is directed at

the actions he took prior to and independent of that vote in order

to persuade his department heads to bring about the elimination of

their positions. The parties focussed a great deal of their

argument on the question whether the Salary Board acted legisla-

tively or administratively when it voted to do away with the

plaintiffs' positions. We do not find, however, that the status of

the Salary Board is the dispositive question of individual immunity

in this case. Rather, the issue is whether Tom Foerster's pre-vote

actions as a Commissioner can be separated from his vote as a

Salary Board member.

We will start our analysis with an examination of the

general principles of legislative immunity and how it applies to

local legislators in § 1983 cases. Under 42 U.S.C. §1983, "Every

person who, under color of any statute, ordinance, regulation,

custom, or usage ... subjects, or causes to be subjected any

citizen ... or other person ... to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress." The term "persons"

includes local and state officers acting under color of state law.

See Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358 (1991). The Supreme

Court has recognized, however, that public officials, sued in their

individual capacities, may under certain circumstances enjoy

immunity from § 1983 suits. In Tenney v. Brandhove, 341 U.S. 367,

71 S.Ct. 783 (1951), the Supreme Court held that the doctrine of

legislative immunity, as applied to state legislators, survived the

enactment of § 1983. In Lake Country Estates, Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171 (1971), the

Court extended the doctrine of absolute legislative immunity to

members of a regional legislature. Finally, in Aitchison v.

Raffiani, 708 F.2d 96 (3d Cir. 1983), this circuit, following the

example of our sister circuits, held that local legislators enjoyed

absolute immunity from personal liability under 42 U.S.C. § 1983

for acts taken in their legislative capacities.

In Aitchison, we considered whether a mayor and borough

attorney were entitled to immunity for the passage of an ordinance,

which abolished the position of building inspector. We recognized

in Aitchison that executive officials might exercise legislative

power along with their administrative duties, and we adopted a

functional approach to the question of when immunity should apply.

"In appraising the mayor's need for absolute immunity, we look to

the function the individual performs rather than his location

within a particular branch of government." Aitchison, 708 F.2d at

99. Using this functional approach, we found that the mayor was

entitled to absolute immunity for the act of voting for an

ordinance that resulted in the abolition of an employment position.

Because the complaint sought compensation for the mayor's vote and

established "active participation by the mayor in the legislative

process," the mayor was immune from liability for damages under

Section 1983. Id.

Since Aitchison, we have repeatedly stated that a public

official's legislative immunity from suit attaches only to those

acts undertaken in a legislative capacity. "It is only with

respect to the legislative powers delegated to them by the state

legislatures that the members of local governing boards are

entitled to absolute immunity." Ryan v. Burlington County, New

Jersey, 889 F.2d 1286 (3d Cir. 1989); Acierno, 40 F.3d at 610. In

Ryan, 889 F.2d at 1290-91, we devised a two-pronged test for

determining whether or not a municipal body's action was "legisla-

tive" or "administrative" in character. To be legislative, the act

must be (1) substantively legislative, such as "policy-making of a

general purpose" or "line-drawing"; and (2) procedurally legislati-

ve, such that it is "passed by means of established legislative

procedures". We refined the first prong of this test in Aciernowhen we

held that although the number of persons affected by a

given decision might be an important factor in the two-part

immunity analysis, it was not dispositive.

Using this same approach, we conclude that Tom Foerster

is not entitled to legislative immunity for any non-legislative

actions he took to abolish the plaintiffs' positions. In coming to

this conclusion, we will assume, without deciding, that the Salary

Board's vote to eliminate plaintiffs' positions was "legislative"

in nature. In addition, we will assume that a legislative body's

decision to eliminate a government position, in contrast to the

mere termination of a person's employment, is legislative activity.

See Rataree v. Rockett, 852 F.2d 946 (7th Cir. 1988). Neverthe-

less, we do not think that such legislative activity by the Salary

Board shields Tom Foerster from liability. As a County Commission-

er, Foerster acted in various capacities -- legislative, executive

and administrative. In giving a unilateral order to have Brimmeier

supporters fired, Foerster would not be engaging in policy-making

of general application regarding the expenditure of County funds,

but would be making either an executive decision on how the

anticipated cutback should be implemented or an administrative

decision that certain individuals should be fired. Actions taken

in a executive or administrative capacity are not entitled to

absolute immunity.

Plaintiffs have not named the Salary Board in their

complaint; neither do they cite Foerster's vote as a Salary Board

member as part of their claim. Rather, they seek restitution for

the course of conduct -- harassment, threats, and retaliation -- in

which Foerster allegedly engaged prior to and independent of the

Salary Board's vote. Even if the Salary Board's decision was part

of a policy to cut waste from the county government, Foerster's

conduct, if proven, constituted retaliatory conduct targeted at

specific individuals because of their support for a political

adversary. If Tom Foerster used his position as Commissioner to

"punish" county workers for their support of Brimmeier, that abuse

of power for personal ends cannot be made "legislative" simply by

eliminating plaintiffs' positions instead of firing them outright.

Were the Salary Board nonexistent and Tom Foerster able to

eliminate County positions without any legislative approval

whatsoever, we have no doubt that he could be held liable under

Section 1983.

In addition, we do not think Foerster's actions are

necessarily rendered "legislative" by the Salary Board's ultimate

vote in favor of eliminating plaintiffs' jobs. An unconstitutional

or illegal course of conduct by county government does not fall

within the doctrine of absolute immunity merely because it is

connected to or followed by a vote of a county board. For example,

in Bartholomew v. Fischl, 782 F.2d 1148 (3d Cir. 1986), we held

that the director of a health bureau created by the cities of

Allentown and Bethlehem could maintain an action against the mayor

of Allentown for persuading the two city councils to dissolve the

health bureau and thereby eliminate the director's position.

Bartholomew brought suit for his dismissal against both the City of

Allentown and the mayor. In reversing the district court's

dismissal of the case, we stated that the mayor's persuasion of the

city council constituted "official city policy" and was sufficient

to sustain a claim against the city under Section 1983.

"Indeed, as Mayor Fischl was powerless to discharge

Bartholomew himself, the Mayor's only available means

of

effecting appellant's termination was to persuade the

city council of Allentown, the city's official

lawmakers,

to dissolve the BiCity Board of Health and the Bureau

altogether, thereby eliminating Bartholomew's

position.

It is this course of conduct that Bartholomew refers

to

[in his complaint] ...."

Bartholomew, 782 F.2d at 1153. In recognizing Bartholomew's

claim

against the city, we specifically noted the mayor's role in

securing his release, concluding, "Defendant Fischl, as Mayor of

Allentown, was certainly a government official with policy-making

powers ...."Id. Despite our awareness of Fischl's position as

mayor, we did not dismiss Bartholomew's suit against him.

Although our holding may not address the question of absolute

immunity, it nevertheless supports the principle that an official's

executive or administrative actions are separable from actions

taken in a legislative capacity. See also Meding v. Hurd, 607

F.Supp. 1088, 1110 n. 28 (D.Del. 1985) (actions of Town Council in

terminating the police chief are not legislative merely because

termination was achieved by a vote of the council).

Moreover, we reject defendant's assertion that Foerster

is entitled to immunity because he could not have caused the

plaintiffs to lose their positions without the support of at least

two of the three other members of the Allegheny Salary Board.

Causation is not an issue in this case at this time. Causation

relates to the merits of plaintiffs' claims, not to the question of

absolute immunity. The issue of causation is a fact-driven

inquiry, requiring the district court to make findings about the

role both of Foerster and of the Salary Board in eliminating the

plaintiffs' positions. At this stage in the litigation, we lack

jurisdiction to consider a factor, such as causation, which goes to

the merits of plaintiffs' claims. See Johnson v. Jones, 115 S.Ct.

2151(1995). Although defendant's causation argument may have some

bite at a later stage, it has no bearing on the issue of absolute

legislative immunity for Foerster's pre-vote activities.

Finally, we are satisfied that our rejection of absolute

immunity as applied to Foerster will not, as defendants suggest,

open the floodgates for future plaintiffs wishing to attack

legislators for their votes on controversial budgeting matters. We

hold only that the doctrine of absolute immunity, as it pertains to

local legislators, does not shield executive officials from

liability for a course of conduct taken prior to and independent of

legislative action, even if those officials were simultaneously

members of the local legislative body that ratified the conduct.

In a situation similar to the one we considered in Aitchison,

disgruntled constituents cannot pursue government officials simply

because budgetary constraints or organizational efficiencies have

dictated the elimination of a job. A specific employee can,

however, challenge a county executive who misuses public office to

get rid of that employee's job because the employee's political

activities have displeased the county executive.

IV. The County's Claim to Legislative Immunity

The district court also held that the Allegheny County

and Tom Foerster in his official capacity were not entitled to

legislative immunity from suit under Section 1983. For the reasons

set forth below, we will affirm this holding as well.

Our resolution of this issue necessarily begins with the

Supreme Court's decision in Monell v. Department of Social Services

of City of New York, 436 U.S. 658, 98 S.Ct. 2018 (1978). In

Monell, the Court overruled a portion of Monroe v. Pape, 365 U.S.

167, 81 S.Ct. 473 (1961), to find municipalities liable as

"persons" under Section 1983. "[I]t is when execution of a

government's policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government as an entity is

responsible under Section 1983." Monell, 436 U.S. at 694, 98 S.Ct.

at 2037-38 (emphasis supplied). The phrase "made by its lawmak-

ers," practically forecloses the argument that the Court meant to

leave open the possibility that local governments were entitled to

legislative immunity under Section 1983. In addition, the Court

rejected the municipality's argument that it was entitled to

absolute immunity "lest our decision that such bodies are subject

to suit under §1983 ‘be drained of meaning.'" Monell, 436 U.S. at

701, 98 S.Ct. at 2041, quoting Scheuer v. Rhodes, 416 U.S. 232,

248, 94 S.Ct. 1683 (1974). The Court in Monell stopped short

of imposing respondeat superior liability on local governments.

Its subsequent decisions have, however, steadfastly adhered to the

general principle that local governments will be held responsible

under § 1983 for their violations of constitutional and federal

rights. As long ago as 1979, the Court in Lake Country Estates,

Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171

(1979) extended legislative immunity to regional legislators. More

important for our purposes, the Court also implied in Lake County

Estates that the regional governing body had no such immunity,

stating: "If the respondents have enacted unconstitutional

legislation, there is no reason why relief against TRPA itself [the

Tahoe Regional Planning Agency] should not adequately vindicate

petitioners' interests." Id. at 405, 99 S.Ct. at 1179 n. 29

(citations omitted). This statement alone calls defendants'

argument into serious doubt.

Shortly thereafter, in Owen v. City of Independence, 445

U.S. 622, 100 S.Ct. 1398 (1980), the Court held that municipali-

ties lacked qualified immunity under Section 1983. Justice

Brennan's reasoning in the majority opinion in Owen bears on our

resolution of this case. First, Brennan noted the language of §

1983, which makes no mention of immunities or any exceptions to the

scope of liability. "Its language is absolute and unqualified; no

mention is made of any privileges, immunities, or defenses that may

be asserted." Owen, 445 U.S. at 635, 100 S.Ct. at 1398. Neverthe-

less, the Court conceded, some common law immunities were so fully

entrenched at the time the Civil Rights Act was passed in 1871,

that they were implicitly incorporated into the Act.

The Court then considered whether any type of immunity

protected local governments in 1871 and found two. The first, the

distinction between governmental and proprietary acts, was ruled

out as a basis of immunity under § 1983 because it was a form of

sovereign immunity, abrogated by Congress, "the supreme sovereign

on matters of federal law," when it included local governments as

"persons" within the Civil Rights Act's scope of liability. Id.,

at 647-48, 100 S.Ct. at 1413. The second doctrine of immunity,

which protected municipalities for "discretionary" activities of a

public or legislative nature, was equally inapplicable because "a

municipality has no ‘discretion' to violate the Federal Constitu-

tion; its dictates are absolute and imperative." Id. at 649, 100

S.Ct. at 1414. Thus, neither doctrine of immunity supported the

City's claim of qualified immunity under § 1983.

The Supreme Court further increased municipal exposure to

liability in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct.

1292 (1986), when it held that a single decision of a municipal

ity's "properly constituted legislative body" could subject it to

liability under § 1983. Id. at 480, 106 S.Ct. at 1298. Pembaurleaves

little, if any room, for the argument that the Court meant

to "preserve" municipal legislative immunity.

Recently, in Leatherman v. Tarrant County Narcotics

Intelligence and Coordination Unit, the Supreme Court reinforced

its expansive interpretation of § 1983 liability when it rejected

a district court's heightened pleading standard for suits brought

against local governments. Referring to Owen and Monell, the Court

declared, "These decisions make it quite clear that, unlike various

government officials, municipalities do not enjoy immunity from

suit - either absolute or qualified - under § 1983." Leatherman,

113 S.Ct. at 1162.

The Supreme Court's past treatment of local governments

under Section 1983 compels our decision today that Allegheny County

is not entitled to legislative immunity in this case. Were we to

hold in defendants' favor, we fear this doctrine of "legislative

immunity" would cut away the core principle of Monell and Owen:

Local governments, unlike individual legislators, should be held

liable for the losses they cause. Moreover, a doctrine of

legislative immunity for local governments might have the

undesirable effect of encouraging a county council to adopt all of

its policies through a series of legislative actions passed by a

newly created "Board" or "Council".

Other policy concerns also support our analysis. First,

we do not believe local governments face the same mix of perverse

incentives as individual legislators when sued or threatened with

a lawsuit. When a legislator considers a piece of legislation, we

expect him to consider the best interests of the people he serves,

not the size of his own wallet. As the Supreme Court has recog-

nized, "In many contexts, government officials are expected to make

decisions that are impartial or imaginative, and that above all are

informed by considerations other than the personal interests of the

decisionmaker." Forrester, 484 U.S. at 223, 108 S.Ct. at 542. If

the legislator is held personally liable for suit, however, even

the most conscientious public officer will be encouraged to vote

against legislation that may be beneficial for the community at

large for fear that personal liability will outweigh his genuine

interest in helping his constituents. The public officer will

think less about the needs of the city or the county, in order to

protect his own monetary and personal interests. Or, he may even

decide to forgo public office altogether. See Wood v. Strickland,

420 U.S. 308 , 95 S.Ct. 992 (1975). In sum, the result of personal

liability is the chilling of potentially beneficial legislative

activity and the distraction of public officials from community

matters. "In this way, exposing government officials to the same

legal hazards faced by other citizens may detract from the rule of

law instead of contributing to it." Id.

The same concerns do not arise when local governments are

held liable for violations under § 1983. First, city or county

liability for constitutional violations only adds to the collective

risk of loss that the legislator already should be considering when

he decides whether or not to enact a new piece of legislation. If

a county policy causes a constitutional wrong, the county should be

made to bear the losses caused by that violation. As Justice

Brennan explained in Owen, the central purpose of the Civil Rights

Act was to provide citizens with a remedy against those who had

abused state power. "It hardly seems unjust to require a municipal

defendant which has violated a citizen's constitutional rights to

compensate him for the injury suffered thereby. Indeed Congress

enacted §1983 precisely to provide a remedy for such abuses of

official power." Owen, 445 U.S. at 654, 100 S.Ct. at 1417.

In addition, liability on the part of the local

governing body may deter future unconstitutional legislation,

thereby contributing to the enforcement of constitutional norms

within our society. "The knowledge that a municipality will be

liable for all of its injurious conduct ... should create an

incentive for officials who may harbor doubts about the lawfulness

of their intended actions to err on the side of protecting

citizens' constitutional rights." Id. at 651-52, 100 S.Ct. at 1416.

Efforts to enact legislation that causes harm to the community

(including the compensation paid for violation of constitutional

rights) should be chilled.

Finally, because a legislator's own money is not at

risk, county liability does not distract the legislator from his

job of serving the community's interests. True, the legislator

must contend with lawsuits brought against the county, but that

distraction is borne equally by the local populace as a whole (at

least in tax dollars) and not by any particular individual. If a

county council forgoes enactment of legislation because it fears

potential liability for the county under § 1983, its decision

reflects a rational calculation that, whatever a given policy's

benefits, its risk of liability outweighs its collective benefit to

the community. This is exactly the type of reckoning we want to

encourage our legislators to make.

Defendants argue, however, that legislative immunity for

the county is necessary to protect legislators from judicial

inquiry into their motives in enacting legislation. This argument

lacks weight given the intent-based inquiry of certain doctrines of

Constitutional law. "Developments in federal law over the last 30

years have tied the constitutionality of many types of municipal

legislation directly to the purpose and motive of the legislation."

Goldberg v. Town of Rocky Hill, 973 F.2d 70, 75 (2d Cir. 1992)

(citing cases). For better or worse, lawsuits concerning constitu-

tional matters such as equal protection, the First Amendment, and

substantive due process all require judicial inquiry of the

legislator's motive. See Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252, 97 S.Ct. 555 (1977) (proof of

discriminatory motive necessary to show violation of Equal

Protection Clause); Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.

1988), cert. denied, 488 U.S. 851, 109 S.Ct. 134 (1988) (deliberate

and arbitrary government decision, including one "tainted by

improper motive," violated developer's substantive due process

rights) and Grant v. City of Pittsburgh, __ F.3d __, __ (3d Cir.

1996)(evidence of officer's intent admissible when intent is

integral element of underlying constitutional violation). These

cases illustrate that judicial inquiry of legislative motive is not

per se forbidden. We therefore will not undercut core doctrines of

Constitutional law by applying legislative immunity to municipali

ties under § 1983.

Finally, we note the uniform manner in which our sister

circuits have dealt with this issue. See Berkley v. Common

Council of City of Charleston, 63 F.3d 295 (4th Cir. 1995), cert,

denied, 116 S.Ct. 775 (1996); Goldberg, 973 F.2d at 70; Reed v.

Village of Shorewood, 704 F.2d 943; Kuzinich v. County of Santa

Clara, 689 F.2d 1345 (9th Cir. 1982); Hernandez v. City of

Lafayette, 643 F.2d 1188 (5th Cir. Unit A May 1981), cert. denied,

455 U.S. 907, 102 S.Ct. 1251 (1982). We know of no circuit that

currently accepts the doctrine of municipal legislative immunity

under Section 1983.

IV. Conclusion

For the reasons stated above, we will affirm the district court's

judgment against the defendants insofar as it holds that neither

Tom Foerster, in his individual or official capacity, nor Alle-

gheny County are entitled to legislative immunity in this case.

Phyllis Carver; Thomas Fox; April Moore; Roberta Rudolph v. Tom

Foerster, an individual and Chairman, Allegheny County Commis

sioners; County of Allegheny, Appellants, No. 96-3008.

BECKER, Circuit Judge, concurring.

I.

In 1976, over a strong dissent by Justice Powell, the

Supreme Court announced its decision in Elrod v. Burns, 427 U.S.

347 (1976), holding that the First and Fourteenth Amendments

prohibit the dismissal of certain government employees on the

basis of political affiliation. In Branti v. Finkel, 445 U.S.

507 (1980), over a similar Powell dissent, the Court clarified

Elrod by making clear that: (1) Elrod prohibits dismissal on the

basis of party affiliation even if the discharged employee cannot

show that he or she was coerced into changing his or her politi

cal allegiance; and (2) government employees can be dismissed for

their party affiliation only when the government can show that

certain political beliefs are necessary to carry out the duties

of those offices. Then, in Rutan v. Republican Party of Illi

nois, 497 U.S. 62 (1990), the Court extended the Elrod principle

to include hiring as well as firing. But Justice Scalia, un

daunted by a decade and a half of Elrod's hegemony, wrote a

powerful dissent, building upon the words of Justice Powell, and

assailing the Elrod-Branti-Rutan trilogy as not only amounting to

bad constitutional law, but also as reflecting a deep misunder

standing of the essential role that the patronage system has

played in American history and political tradition.

As this recitation suggests, the view that the Elrod-

Branti-Rutan trilogy was a serious mistake will not die. That it

will not is, I suspect, because of the compelling logic of the

Powell and Scalia arguments, described infra, as well as the fact

that the total domination of election campaigns by money and

special interests that we have seen in recent years not only adds

fuel to the fire of the Powell and Scalia arguments, but renders

them prophetic. The need to reexamine the trilogy, which is what

I will argue for, is thus counseled by new developments in the

years since the trilogy was complete. The need is doubled in

spades by the extreme result in the present case.

The "extreme result" is that the majority has been led

by the Elrod trilogy to rule, in effect, that any political

leader who advises his political associates to discharge a

political opponent may be subject to suit under 42 U.S.C. § 1983

for a First Amendment violation. Although the present defendant,

"Boss" Foerster, is a public official and a member of the Salary

Board, under the majority's logic, Foerster would be liable as a

§ 1983 co-conspirator if he were a private citizen-political boss

who gave the same "orders" he is charged with giving here, to me

a quite startling proposition. This result causes me to question

whether there is now any limit to examination in the courts or

under the aegis of the courts (through depositions and interroga

tories) of any government personnel or procurement decision that

gores the ox of someone who can claim political foul. And, query

whether there is any limit to the judicial examination of the

mental processes and conversations of defendants in such cases.

If there is not, the fundamental premise of representative

government -- that it is our public officials who are held

accountable for their actions at the ballot box rather than their

political "bosses" -- seems not only challenged, but also under

mined.

The 1996 election campaigns were startling in the

extent to which the influence of money and special interest

groups so clearly dwarfed the role of the political parties in

affecting the outcomes. But this is the very specter that loomed

so large in the sights of Justice Powell when he decried the

results in Branti:

Particularly in a time of growing reliance

upon expensive television advertisements, a

candidate who is neither independently

wealthy nor capable of attracting substantial

contributions must rely upon party workers to

bring his message to the voters. In contests

for less visible offices, a candidate may

have no efficient method of appealing to the

voters unless he enlists the efforts of per

sons who seek reward through the patronage

system. Insofar as the Court's decision

today limits the ability of candidates to

present their views to the electorate, our

democratic process surely is weakened.

Branti, 445 U.S. 528-29 (Powell, J., dissenting). As the forego

ing comments suggest (and as I will elaborate), I see the trilogy

as extremely deleterious to the national polity. That is because

it has seriously undermined certain traditions that have helped

our democracy to flourish.

I recognize that I am a judge of an inferior court, but

that does not preclude me from expressing an opinion where I feel

strongly that the Supreme Court has gone down a dangerous path it

ought to reconsider. U.S. v. Kennerley, 209 F. 119, 120

(S.D.N.Y. 1913) (Hand, J.) ("While, therefore, the demurrer must

be overruled, I hope it is not improper for me to say that the

rule as laid down, however consonant it may be with mid-Victorian

morals, does not seem to me to answer to the understanding and

morality of the present time.").

Thus, although I am constrained by the Supreme Court's

jurisprudence to concur in the present opinion and judgment, and

therefore do so, I write separately to express my dismay about

the way in which the First Amendment patronage jurisprudence has

evolved. This opinion is energized by the scenario of the case

at bar and the recent developments to which I have adverted.

II.

I begin with a description of the problem clearly

identified by the Powell and Scalia dissents. In essence, the

patronage system historically has been critical to the survival

and strength of political parties by allowing party leaders to

reward their party faithful. Strong parties have, in turn,

played a crucial democratizing role: they have stimulated

political activity and encouraged meaningful political debate;

they have enabled local candidates for office to attract

attention to their candidacies and galvanize grass-roots

organizing; and they have facilitated the political participation

of historically excluded groups, see Rutan, 497 U.S. at 108

(Scalia, J., dissenting) ("By supporting and ultimately

dominating a particular party ‘machine,' racial and ethnic

minorities have -- on the basis of their politics rather than

their race or ethnicity -- acquired the patronage awards the

machine had to confer.").

Moreover, as Justice Scalia noted in Rutan, the

"patronage system does not . . . merely foster political parties

in general; it fosters the two-party system in particular." Id.at 106.

If patronage jobs are available to workers who have

chosen a winning candidate, campaign workers are more likely to

choose a party with a chance of prevailing, rather than one with

non-mainstream views. This tends to foster the preservation of

the two-party system, as parties must ensure that their message

has wide appeal to attract rank-and-file members.

As I see it, the Elrod trilogy has deprived parties of

one of the most effective tools for building party unity:

prospect of future political jobs for a job well done. The blow

that this has dealt patronage systems has contributed to the need

of political candidates to rely almost exclusively on media and

money-intensive campaigns to succeed. That politics has come to

be dominated by money, and hence large contributors and political

action committees (PACs) have achieved a significant sway, has

been true for a number of years now, but it surely cannot be

doubted in the wake of the 1996 election campaigns. This effect

has been felt most significantly at the local level, where

candidates, particularly challengers who have no PAC money to

draw on, can generate little support. Without personal wealth,

such candidates are doomed to failure. See Branti, 445 U.S. at

528-29 (Powell, J., dissenting). I, of course, do not mean to

suggest that the trilogy is the only reason for the massive

influence of money in election campaigns, nor could I credibly do

so given the ascendency of the mass media over so many aspects of

national life, and the high cost of media advertising. But, it

is at least a significant contributing factor.

Additionally, although the rise of modern, media-

intensive campaigns has surely benefitted the democratic process

by allowing some candidates to make broad-based appeals to the

entire public, access to the media is limited to those candidates

who can afford it, a terrible state of affairs. Moreover, the

nature of modern campaigns has not rendered obsolete the crucial

work done by individual party workers, particularly in local

races. "Certainly they have not made personal contacts

unnecessary in campaigns for the lower level offices that are the

foundations of party strength, nor have they replaced the myriad

functions performed by party regulars not directly related to

campaigning. And to the extent such techniques have replaced

older methods of campaigning (partly in response to the

limitations the Court has placed on patronage), the political

system is not clearly better off." Rutan, 497 U.S. at 105

(Scalia, J., dissenting).

The decline of the patronage system has had other

significant consequences for the character of the electoral

process. The weakening of the party system affects the ability

of voters to make educated choices among candidates, as voters

with little information about candidates historically have looked

to their party for cues. "With the decline in party stability,

voters are less able to blame or credit a party for the

performance of its elected officials. Our national party system

is predicated upon the assumption that political parties sponsor,

and are responsible for, the performance of the persons they

nominate for office." Branti, 445 U.S. at 531 (Powell, J.,

dissenting). Weaker parties also adversely affect citizen

participation in the democratic process. Contrast the appalling

national turnout of 48% in the 1996 presidential election,

notwithstanding the vaunted impact of motor-voter registration

laws, with the much higher turnout in years past when the

political parties were stronger. That in itself is an ominous

sign.

The deleterious impact of special interest money does

not lessen after election day, as has often been noted.

According to Justice Scalia, "[t]he replacement of a system

firmly based in party discipline with one in which each

officeholder comes to his own accommodation with competing

interest groups produces 'a dispersion of political influence

that may inhibit a political party from enacting its programs

into law.'" Rutan, 497 U.S. at 107-08 (Scalia, J., dissenting)

(quoting Branti, 445 U.S. at 531 (Powell, J., dissenting)).

Additionally, as the decline in party strength hastens the rise

of special interest groups, which are necessarily focused on

narrow issues, government suffers because "candidates and office-

holders are forced to be more responsive to the narrow concerns

of unrepresentative special interest groups than to overarching

issues of domestic and foreign policy." Branti, 445 U.S. at 532

(Powell, J., dissenting). Such ills, fostered by the dominance

of money in elections, can only grow more significant, as each

election brings more expensive campaigns.

In a similar vein, Justice Powell explained that

"[s]trong political parties aid effective governance after

election campaigns end. Elected officials depend upon appointees

who hold similar views to carry out their policies and administer

their programs. Patronage . . . serves the public interest by

facilitating the implementation of policies endorsed by the

electorate." Id. at 529.

It is also clear to me that the premise of Branti --

that the accountability of elected officials to the voters is

satisfied by exempting policy making officials from Elrodscrutiny -- is

not sound. Anyone with experience in government

knows that officials of lower rank can undermine the policies of

an administration just as effectively as higher ranking persons.

Indeed, commentators have recognized that the Supreme Court has

drawn a distinction between "partisan" patronage employees and

"politically-neutral" civil servants.

According to one article, "[t]here is no empirical

basis for this distinction. Highly protected career bureaucrats,

who have strong ideological attachments to political causes or

policies may also be motivated by partisan objectives, and these

objectives can be inconsistent with the goals of elected

officials. In reaching its conclusion, the Court ignores the

agency problems faced by politicians in securing the compliance

of government workers in molding and administering policy."

Ronald N. Johnson & Gary D. Libecap, Courts, a Protected

Bureaucracy, and Reinventing Government, 37 Ariz. L. Rev. 791,

820-21 (1995) (footnotes omitted).

At the same time, the regime of the trilogy has created

widespread uncertainty among government officials as to the

legality of hiring and firing certain government employees. The

line between who can be discharged for political affiliation and

who cannot under Branti is less than pellucid, to say the

least. This has required time-consuming and ongoing training

of management-level government employees lest they run afoul of

its precepts. In my view, Justice Powell was right when he said

that "[a] constitutional standard that is both uncertain in its

application and impervious to legislative change will now control

selection and removal of key government personnel. Federal

judges will now be the final arbiters as to who federal, state,

and local governments may employ. . . . [T]he Court is not

justified in removing decisions so essential to responsible and

efficient governance from the discretion of legislative and

executive officials." Branti, 445 U.S. at 525-26 (Powell, J.,

dissenting).

I acknowledge, of course, that I have not made an

empirical study of the impact of the Elrod trilogy, but a survey

of the literature reveals no satisfactory data. On a matter

such as this, I believe that seasoned judgment of those with

experience in the political process is the best guide. Moreover,

I share Justice Scalia's view that to "oppose our Elrod-

Brantijurisprudence, one need not believe that the patronage system is

necessarily desirable; nor even that it is always and everywhere

arguably desirable; but merely that it is a political arrangement

that may sometimes be a reasonable choice, and should therefore

be left to the judgment of the people's elected representatives."

Rutan, 497 U.S. at 110 (Scalia, J., dissenting).

III.

I do not claim that the patronage system is without

flaw. The abuses of the system have been well documented over

the years. But while patronage systems have their faults, the

damage that the Elrod trilogy has done to the polity weighs, on

balance, in favor of permitting elected officials to hire and

fire based on political affiliation. Moreover, what is too often

forgotten is that most patronage appointees--whether maintenance

employees of municipalities, county clerks, or federal judges--

perform honorably and well. And when they do, they bring credit

upon the party that had them appointed and justify support

therefor. While a distinction is often made between patronage

and merit appointment, patronage employees are, far more often

than not, true merit employees. The problems of the patronage

system can be dealt with, and historically have been dealt with,

through civil service reform and other measures, rather than

through constitutional litigation.

Turning to that aspect of the matter, as Justice Powell

noted in his Elrod dissent, the "judgment today unnecessarily

constitutionalizes another element of American life -- an element

certainly not without its faults but one which generations have

accepted on balance as having merit." Elrod, 427 U.S. at 389

(Powell, J., dissenting). I am also concerned by the

proliferation of Elrod-generated litigation (an on-line review

reflects that Elrod has now been cited 1249 times by federal

courts alone), which is now extending rapidly to procurement

decisions, such as the award of towing contracts, in addition to

personnel decisions. See O'Hare Truck Serv., Inc. v. City of

Northlake, 116 S. Ct. 2553 (1996). The growing number of Elrod-based

cases has imposed a burden on federal trial and appellate

courts, embroiling them in the time-consuming and often quite

difficult exercise of divining where a duty is sufficiently

policy oriented to except an employee from Elrod scrutiny.

In sum, given the sea change in politics, even since

Rutan, characterized primarily by the decline of political

parties and the dominance of elections by money, I submit that it

is time for the Supreme Court to revisit this area of the law.

It seems that the import of the majority's discussion

on causation is that, if the fact-finder determines that the

Salary Board would have itself decided to eliminate plaintiffs'

positions, Foerster must be absolved. Perhaps I am incorrect.

At all events, the plaintiffs' claim should really be cut off at

the pass, i.e. now. I lament that it cannot be, but hope that

the Supreme Court will accept Justices Powell and Scalia's

wisdom. As Justice Frankfurter once stated, "Wisdom too often

never comes, and so one ought not to reject it merely because it

comes late." Henslee v. Union Planters Bank, 335 U.S. 595, 600

(1949) (Frankfurter, J., dissenting).