Miller v. Clinton

Opinions of the United

2008 Decisions States Court of Appeals

for the Third Circuit

10-1-2008

Miller v. Clinton

Precedential or Non-Precedential: Precedential

Docket No. 07-2105

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation

"Miller v. Clinton" (2008). 2008 Decisions. Paper 287.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/287

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2105

RITA MILLER

v.

CLINTON COUNTY;

HONORABLE RICHARD SAXTON

Honorable Richard N. Saxton,

Appellant

Appeal from the United States District Court

for the Middle District of Pennsylvania

(Civ. Action No. 06-cv-00398)

District Court: Judge John E. Jones, III

Argued May 13, 2008

BEFORE: McKEE, ROTH, Circuit Judges,

and PADOVA, District Court Judge*

(Opinion filed: October 1, 2008)

A. TAYLOR WILLIAMS, ESQ. (Argued)

Administrative Office of PA Courts

1515 Market Street, Suite 1414

Philadelphia, PA 19102

Attorney for Appellant Honorable Richard N. Saxton

JOSEPH P. GREEN, ESQ. (Argued)

LEE, GREEN, & REITER, INC.

115 East High Street

P.O. Box 179

Bellefonte, Pa. 16823

Attorney for Appellee Clinton County

*

The Honorable John R. Padova, Senior District Judge,

United States District Court for the Eastern District of

Pennsylvania, sitting by designation.

2

JOSEPH F. ORSO, III, ESQ. (Argued)

CASALE & BONNER

33 West Third Street

Suite 202

Williamsport, PA 17701

Attorney for Appellee Rita Miller

OPINION

McKEE, Circuit Judge.

Rita Miller, a former employee of the Clinton County

Probation office, brought this civil rights action against the

President Judge of the Court of Common Pleas of Clinton

County, Pennsylvania, Richard Saxton, pursuant to 42 U.S.C.

§ 1983. Miller=s complaint asserts that Judge Saxton

terminated her employment in violation of her First

Amendment right to free speech, and her Fourteenth

Amendment right to due process.1

1

The First Amendment guarantee of free speech is

incorporated into the Fourteenth Amendment’s due process

clause and therefore applicable against the states. See Phillips

v. Keyport, 107 F.3d 164, 183 (3d Cir. 1997). Miller also stated

a separate cause of action for an alleged due process violation.

3

Judge Saxton moved to dismiss Miller=s complaint for

failure to state a claim pursuant to Fed. R. Civ. P 12(b)(6).

Alternatively, he claimed that he was entitled to qualified

immunity even if Miller’s complaint stated a cause of action.

He also moved for a more definite statement pursuant to Fed.

R. Civ. P. 12(e) in order to resolve any issue of fact that may

have precluded a grant of qualified immunity. The district

court denied Judge Saxton=s motion to dismiss as well as his

Rule 12(e) motion for a more definite statement and this

appeal followed. For the following reasons, we will reverse.

I. Factual Background

Miller was employed as an Adult Probation Officer by

the Clinton County Probation Office. The Probation Office’s

employees had a collective bargaining agreement with the

County. According to Miller, one of her supervisors was

ineffective and unprofessional. The supervisor allegedly

referred to probationers as “scum,” and openly stated that they

did not deserve the money that the Probation Office spent on

them.

On January 22, 2006, Miller wrote a letter to Judge

Saxton expressing her dissatisfaction with the Probation

Office. The letter was very short. In the letter, Miller stated:

She argues that she has a property interest in her employment

and that she was deprived of that interest without due process of

law in violation of the Fourteenth Amendment.

4

[T]he reason I am writing to you

now is that I can no longer work

under the stressful conditions

which must endure since Mrs.

Foresman has become my

supervisor. I have tolerated

intimidation and hostility from

Mr. Rosamilia numerous times

throughout my employment with

the county. I know that you are

friends with both of them and you

may not appreciate my candor but

I believe that the time has come to

explain my position to the court.

Miller also complained that Supervisor Foresman

asked her to identify probationers whose restitution payments

were in arrears, and she complained about Foresman

suspending her because her clients were delinquent in those

payments. She claimed that there was a difference in

philosophy between herself and Foresman. According to the

letter, that difference was that Miller “believes in

rehabilitation for most clients, [whereas Foresman] believes

[the clients] are scum and no money should be wasted on

them.

Judge Saxton fired Miller immediately after receiving

her letter. Soon thereafter, Miller brought this suit under §

1983. She alleged a constitutionally protected property

5

interest in her continued employment, and claimed that the

failure to provide her with adequate notice and opportunity to

respond was a violation of the Fourteenth Amendment’s

guarantee of due process. She also asserted that her

expression was protected under the First Amendment’s

guarantee of free speech and that she had been improperly

terminated for exercising her right to free speech.

As we noted at the outset, Judge Saxton moved to

dismiss Miller=s claims under Federal Rule of Civil Procedure

12(b)(6). He also claimed immunity from suit. For reasons

that are not at all apparent on this record, Miller did not attach

her letter to her complaint. However, Judge Saxton appended

it to his motion to dismiss and asked the court to convert that

motion to a motion for summary judgment in the alternative.

In addition, he asked the court to require Miller to provide a

more definitive statement of the basis for her claim pursuant

to Fed. R. Civ. P 12(e), if his motion to dismiss or for

summary judgment was denied.

The district court denied Judge Saxton=s 12(b)(6)

motion and refused to convert it to a summary judgment

motion. The court concluded that Judge Saxton had not

established that he was entitled to qualified immunity because

the record did not support his claim that he had not violated

Miller’s clearly established constitutional rights. Although

the court also ruled that the pleadings were insufficient to

determine if Miller=s termination was the result of retaliation

for protected speech, the court refused to consider Miller’s

6

letter appended to Judge Saxton’s motion to dismiss. The

district court ruled that the letter did not sufficiently

supplement the record to allow for summary judgment. The

court also denied Judge Saxton’s Rule 12(e) motion. Finally,

the court concluded that Miller’s due process claim could not

be dismissed at the pleading stage because she alleged that the

terms of her employment were governed by the terms of a

collective bargaining agreement. This appeal followed.

II. Jurisdiction and Standard of Review

A denial of qualified immunity is a “final judgment”

subject to immediate appeal within the meaning of 28 U.S.C.

§ 1291. Behrens v. Pelletier, 516 U.S. 299, 307 (1996).

Thus, we have jurisdiction to review the district court’s denial

of Judge Saxton’s motion to dismiss or for summary

judgment. Our review is plenary. Doe v. Groody, 361 F.3d

232, 237 (3d Cir. 2004).

III. Discussion

The doctrine of qualified immunity shields government

officials performing discretionary functions Afrom liability for

civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.@ Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). Qualified immunity is not merely a

defense, but is “an entitlement not to stand trial or face the

other burdens of litigation.” Saucier v. Katz, 533 U.S. 194,

200 (2001) (citation omitted). Therefore, any claim of

7

qualified immunity must be resolved at the earliest possible

stage of litigation. Id. at 201.

In Saucier, the Supreme Court made clear that claims

for qualified immunity are to be evaluated using a two-step

process. Id. at 201. “First, [we] must decide whether the

facts, taken in the light most favorable to the plaintiff, show a

constitutional violation. If the plaintiff fails to make out a

constitutional violation, the qualified immunity inquiry is at

an end; the officer is entitled to immunity.” Bennett v.

Murphy, 274 F.3d 133, 136 (3d Cir. 2003). “Once it is

determined that evidence of a constitutional violation has been

adduced, courts evaluating a qualified immunity claim move to the

second step of the analysis to determine whether the constitutional

right was clearly established.” Id.

Based on our phased inquiry under Saucier, we

conclude the district court erred in not dismissing Miller’s

complaint because her allegations do not establish either a

violation of her right to free speech under the First

Amendment, or a denial of due process. As the Court

explained in Saucier, “[i]f no constitutional right would have

been violated were the allegations established, there is no

necessity for further inquiries concerning qualified

immunity.” 533 U.S. at 201.

A. First Amendment Retalion Claim

In Pickering v. Bd. of Educ., 391 U.S. 563, 570 (1968),

the Supreme Court first held that a public employee does not

relinquish First Amendment rights to comment on matters of

8

public interest by virtue of government employment. Thus, a

public employer may not discharge an employee for a reason

that infringes upon that employee's constitutionally protected

interest in the freedom of speech. Rankin v. McPherson, 483

U.S. 378, 383 (1987). Nevertheless, public employers are still

employers, and they therefore have the same concern for

efficiency and the need to review and evaluate employees as

any other employer in order to ensure that the actions of

employees do not interfere with the performance of public

functions. Id. at 383-89. On the other hand, the Court

recognized that “the threat of dismissal from public

employment is . . . a potent means of inhibiting speech.” Id.

at 384 (quoting Pickering, 391 U.S. at 574).

Thus, in order to determine if a public employer’s

termination of an employee violates the constitutional

guarantee of free speech, we must “balance between the

interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interest of the [public

employer], in promoting the efficiency of the public services

it performs through its employee.” Pickering, 391 U.S. at

568; see also Connick v. Myers, 461 U.S. 138, 140 (1983).

That balance turns on a three-prong inquiry. Watters v.

City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995).

Accordingly, in order for Miller to establish an

unconstitutional firing, she must establish that her speech was

protected, and that it was a motivating factor in the alleged

retaliatory dismissal. Id (citations omitted). If she does so,

Judge Saxton must then establish that he would have taken the

9

same employment action “even in the absence of the protected

conduct.” Id. (citation omitted).

At this stage, we are only concerned with the first part

of that inquiry - whether the speech was protected; and that is

solely a question of law. To be protected, the speech must

implicate a matter of public concern and must outweigh the

employer’s interest in the effective operations of its public

services. Speech implicates a matter of public concern if the

content, form, and context establish that the speech involves a

matter of political, social, or other concern to the community.

Connick, 461 U.S. at 146-48. If the speech touches on a

matter of public concern, we must then balance the

employee’s interest in engaging in her speech with the

employer’s countervailing interests, including the employer’s

prerogative of removing employees whose conduct impairs

performance; and concerns for the morale of the workplace,

harmonious relationships among co-workers, and the regular

operation of the enterprise. Id. at 151. The balancing we

must undertake is a fact-intensive inquiry that requires

consideration of the entire record, and must yield different

results depending on the relative strengths of the issue of

public concern and the employer’s interest. Id. at 152. No

one factor controls the inquiry.

Our inquiry is guided by the Supreme Court’s

resolution of these competing interests in Connick, supra.

Sheila Myers was an Assistant District Attorney in New

Orleans who strongly opposed the District Attorney, Harry

Connick, in his plan to transfer her to another district. She

10

voiced that opposition to Connick’s policies to her direct

supervisor who told her that others did not share her concerns.

Myers responded by distributing a questionnaire that solicited

the view of her fellow staff members concerning office

transfer policy, office morale, the need for a grievance

committee, the level of confidence in supervisors, and

whether employees felt pressured to work on political

campaigns. Sometime after the questionnaire was circulated,

Myers’ supervisor told Connick that it was causing a mini-

insurrection in the office. Connick responded by firing Myers

for refusing to accept the transfer. He also told her that

circulating the questionnaire was an act of insubordination.

Myers responded by bringing a civil rights action under §

1983 in which she alleged that the firing violated her First

Amendment right of free speech. The district court agreed

and ordered her reinstated with compensation including

attorney’s fees. The court concluded that she had actually

been fired for circulating the questionnaire, that the

questionnaire involved matters of public concern, and that the

“state had not ‘clearly demonstrated’ that [it] ‘substantially

interfered’ with the operations of the District Attorney’s

office.” Id. at 142. Connick appealed to the United States

Court of Appeals for the Fifth Circuit, which affirmed on the

basis of the district court’s opinion. Connick then sought

review in the Supreme Court by way of certiorari, which was

granted.

The Supreme Court began its analysis by stating that

“[f]or at least 15 years, it has been settled that a state cannot

condition public employment on a basis that infringes the

11

employee’s constitutionally protected interest in freedom of

expression.” Id. The Court then explained that in order to

resolve Myers’ claim, it must (as explained in Pickering),

“seek a balance between the interests of the [employee], as

citizen, in commenting upon matters of public concern and

the interest of the State, as an employer.” Id. (internal

quotation marks omitted). The Court recognized the state’s

interest as employer in “‘promoting efficiency of the public

services it performs through its employees[.]”’ Id. (quoting

Pickering, 391 U.S. at 568).

After examining Myers’ questionnaire, and the

surrounding circumstances, the Court concluded that

questions pertaining to the transfer policy, her fellow

employees’ confidence and trust in their supervisors, office

morale, and the need for a grievance committee were merely

extensions of Myers’ dispute over her transfer. Id. at 147-48.

Those questions were not intended to shed light on any actual

or potential wrongdoing or breach of the public trust by the

district attorney’s office. Rather, they were merely an

expression of Myers’ personal grievance against Connick.

Accordingly, they did not constitute matters of public

concern. Id.

The Court believed that the only expression touching

upon a matter of public concern was the inquiry into whether

Connick pressured employees to work on political campaigns.

Id. at 149. However, after viewing the statement in context

and considering the circumstances in which she circulated it,

the Court held that one expression of public concern did not

12

outweigh the District Attorney’s interest in the efficient

operation of his office because the questionnaire as a whole

was of such limited value to the public. Id. at 154. Taken as

a whole, it challenged the authority of Myers’ supervisor,

questioned the application of a transfer policy as applied to

her, and undermined the close working relationships

necessary for the effective functioning of the District

Attorney’s office. Id. That did not outweigh the employer’s

right to terminate Myers.2 Id.

Here, Miller’s statements that the Clinton County

Probation office was being run ineffectively, and that her

supervisors called probation clients “scum” undoubtedly refer

to matters of public concern. Connick, 461 U.S. at 146

stating that speech involves a matter of public concern if it

can be fairly considered as relating to any matter of political,

social, or other concern to the community). Indeed, the public

concern over the manner in which a probation office

2

The Court explained that the inquiry necessarily involves a

sliding scale. The employer has no obligation to wait for the

disruption to occur to terminate the employee, so long as the

speech has significant potential to cause disruption relative to its

value. Id. at 152. On the other hand, the Court stated that if the

questionnaire more substantially involved issues of public

concern, a greater showing of disruption would have been

needed to justify Myers’ termination. Id. In other words, the

amount of disruption a public employer has to tolerate is

directly proportional to the importance of the disputed speech to

the public.

13

supervises probationers in the criminal justice system is

obvious.

Connick and its progeny illustrate the extent to which

we must view Miller’s statements in context with the entire

letter. We can not “cherry pick” something that may impact

the public while ignoring the manner and context in which

that statement was made or that public concern expressed.

Our inquiry must also consider the form and circumstance of

the speech in question.

The district court refused to consider the entirety of

Miller’s letter because it did not believe that Judge Saxton’s

appending the letter to his motion was sufficient to convert

the motion to dismiss into a motion for summary judgment.

We disagree. A Acourt may consider an undisputedly authentic

document that a defendant attaches as an exhibit to a motion

to dismiss if the plaintiff=s claims are based on the document.@

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,

998 F.2d 1192, 1196 (3d Cir. 1992).3

Miller’s claims are undisputably based on her January

26, 2006 letter to President Judge Saxton, and only upon that

letter. Moreover, in her complaint, Miller appropriately

3

In Pension Benefit Guaranty, we reasoned that any other

rule would allow a Aplaintiff with a legally deficient claim to

survive a motion to dismiss simply by failing to attach a

dispositive document on which it relied.@ Id.

14

makes numerous references to the letter as the entirety of her

speech is contained in it.4 We find no reason why the district

court should not have considered the letter in deciding the

motion to dismiss, or in converting the motion to a motion for

summary judgment. We will therefore consider the entirety

of the letter in this appeal. See Pension Benefit Guaranty

Corp. v. White Consolidated Industries, Inc., 998 F.2d at

1196-97 (considering a document on appeal that the district

court did not consider while deciding a motion to dismiss).5

Upon considering the entirety of Miller’s letter it is

obvious that, although a small portion of the letter touches

upon a matter of public concern, the context in which the

statement occurs establishes that the speech is not protected.

4

Neither the authenticity, nor the accuracy of that document

was in dispute.

5

Our conclusion that the district court should have

considered Miller=s entire letter makes it unnecessary to decide

whether the district court should have granted Judge Saxton=s

motion under Rule 12(e) for a more definitive statement.

However, we take this opportunity to reemphasize the

importance of granting a motion under Rule 12(e) where it

furthers the considerations underlying qualified immunity.

Thomas v. Independence, 463 F.3d 285, 301 (3d Cir. 2006)

(highlighting the usefulness of Rule 12(e) motions as part of a

district court’s obligation to “avail itself of the procedures

available under the Federal Rules to facilitate an early resolution

of the qualified immunity issue.”)

15

Miller’s letter focused upon her private grievances as an

employee. Her statements about the ineffective operation of

the Probation Office, and her concerns about her supervisor’s

comments that the probationers are “scum,” are collateral to

the thrust of her complaint. She quite clearly states: “[T]he

reason I am writing to you now is that I can no longer work

under the stressful conditions which must endure since Mrs.

Foresman has become my supervisor.” That declaration

provides the context for all that follows. Miller was upset

with Foresman’s supervision of her, and could no longer

tolerate being supervised by her. In that context, the brief

references to an issue of public concern she can hardly be

interpreted as manifesting anything other than a multi-faceted

personal “gripe” not unlike that voiced in Myers’

questionnaire. See Connick, 461 U.S. at 153 (“Myers

acknowledges that it is no coincidence that the questionnaire

followed upon the heels of the transfer notice.”) The personal

context in which Miller’s letter arose, in addition to the

tangential connection between the issues of public concern

and the overall thrust of the letter so minimizes any public

concern in the subject of her expression as to tip the First

Amendment balance in favor of her employer.

Miller’s letter harshly criticizes two of her direct

supervisors. She accuses her immediate supervisor of lying

on two separate occasions and taking credit for the work of

other co-workers. Miller also seemingly offers an ultimatum

to the Chief Judge, stating that “she is not sure she can return

[to her job] as long as Mr. Rosamilia and Mrs. Foresman

continue to work there.” Miller’s letter is even disrespectful

16

to Judge Saxton. In one exchange, she accuses her supervisor

of lying and performing her job inadequately, but summarizes

the passage by telling the Judge, “apparently that is the kind

of Probation Officer you and Mr. Rosamilia [another

supervisor] admire.”

Miller’s letter is therefore analogous to the speech at

issue in Connick. In launching into an attack on management

and her supervisors, Miller’s letter did manage to brush ever

so gently against a matter of public concern just like Myers’

questionnaire in Connick. However, that seemingly

serendipitous encounter does not convert her personal

grievance into protected speech.6

6

We nevertheless think it imperative to caution that we in no

way suggest that speech which is otherwise public in nature can

be sanctioned merely because it arises in the context of personal

dissatisfaction or a personal grievance. In fact, common sense

suggests that most employees will not speak out and criticize

their employer if all is going well for them personally and they

have no “axe to grind.” Nor do we suggest that an employer can

rely solely upon the disruption that may follow when an

employee speaks on a matter of public concern merely because

the employee is motivated by personal dissatisfaction with

his/her employment. It is not the grinding of the proverbial axe

that removes the protection of the First Amendment, it is the

private nature of the employee’s speech. Care must always be

taken not to confuse the two inquiries. See O’Donnell v.

Yanchulis, 875 F.2d 1061, 1062 (3d Cir. 1989) (“[I]t would be

absurd to hold that First Amendment generally authorizes

17

Since Miller’s speech is unprotected, she cannot

establish a First Amendment retaliation claim. That cause of

action should therefore have been dismissed because Judge

Saxton is entitled to qualified immunity. Her due process

claims also fail to state a constitutional violation and should

have been dismissed for the same reason.

B. Due Process Claims7

The District Court also erred in not dismissing Miller=s

due process claim. Miller alleged that her termination

occurred without notice or opportunity to respond, and

resulted in a deprivation of her property interest in continued

employment “without due process of law” in violation of the

Fourteenth Amendment.

The first step in analyzing a due process claim is to

determine whether the “asserted individual interest ... [is]

encompassed within the [F]ourteenth [A]mendment's

protection of life, liberty, or property.” Alvin v. Suzuki, 227

F.3d 107, 116 (3d Cir. 2000) (internal citations and quotations

omitted). Judge Saxton contends that Miller possessed no

interest in her employment protected by the Fourteenth

Amendment because, under Pennsylvania law, as a public

employee her employment was at-will. In Elmore v. Cleary,

399 F.3d 279 (3d Cir. 2005), we held that an public employee

does not have any property interest in her employment within

the meaning of the Fourteenth Amendment because such an

corrupt officials to punish subordinates who blow the whistle

simply because the speech somewhat disrupted the office.”).

7

As noted earlier, Miller claims a right to notice and an

opportunity to be heard before being terminated as well as a

substantive due process property interest in employment. Our

discussion pertains equally to both aspects of her due process

claim.

18

employee serves solely at the pleasure of her public employer,

and can be dismissed at anytime for any legal reason or for no

reason at all. But see Clark v. Modern Group Ltd., 9 F.3d

321, 323, 327-28 (3d Cir. 1993) (recognizing exception for

terminations against public policy, such as for a

discriminatory purpose) .

In fact, we concluded in Elmore that Pennsylvania law

precludes local governments from employing workers on any

term other than as an at-will employee unless explicit

enabling legislation to the contrary is enacted by the

Pennsylvania General Assembly. Id. at 282-83 (citing Stumpp

v. Stroudsburg Mun. Auth., 658 A.2d 333, 334 (Pa. 1995).

We stated, Atenure in public government, in the sense of

having a claim to employment which precludes dismissal on a

summary basis is, where it exists, a matter of legislative

grace.” Id. at 283 (quotation omitted). Therefore, we rejected

the argument that a personnel policy handbook conferred

employment that could be only be terminated for just-cause.

Here, Miller cites no enabling legislation that would

exempt workers in Clinton County from the general rule that

public employees are at-will employees. Instead, Miller

attempts to rely on the existence of a collective bargaining

agreement which contains a provison that termination can

occur only for “just cause” and argues that the agreement

gives rise to a protected property interest in her employment.

The district court accepted that argument and denied Judge

Saxton=s motion to dismiss on that basis. It erred in doing so.

Pennsylvania’s Public Employe Relations Act

(“PERA”), 43 P. S. §§ 1101.101 et seq., which allows

collective bargaining between public employees and local

governments, limits the matters that can be subject to

collective bargaining to Awages, hours, and other terms and

conditions of employment.@ See 43 P.S. § 1101.701. The

PERA does not undermine the general rule that public

employees in Pennsylvania are at-will employees. See

19

Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 335 (Pa.

1995) (holding that the rule that a public employee is an

employee-at-will “has not been abrogated by either this Court

or by the legislature”).8

Moreover, Pennsylvania courts have interpreted the

statutory scheme at issue, and have conclusively held that a

court employee’s right to collectively bargain does not affect

the inherent right of judges to hire, discharge, and supervise

their employees. County of Lehigh v. Pennsylvania Labor

Relations Bd., 489 A.2d 1325, 1327 (Pa. 1985). In fact, the

Supreme Court of Pennsylvania has explicitly stated on

separate occasions that “matters affecting the hiring,

discharge, and supervisory powers of the public employer are

not subject to collective bargaining,” and that the rights of

judges to hire, discharge, and supervise court employees are

not affected by collective bargaining. Id. at 1329; see also

Ellenbogen v. County of Allegheny, 388 A.2d 730, 734 (Pa.

1978). Miller’s due process argument completely ignores this

body of law.

8

We note that in Com., Labor Relations Bd v. Franklin Twp.

Municipal Sanitary Auth., 395 A.2d 606, 608 (Pa. Commw. Ct.

1978), the Commonwealth Court held that the statutes

authorizing collective bargaining between public employees and

local government units “clearly contemplate[] that public

employers may agree in a collective bargaining agreement to

limit its otherwise unfettered power to dismiss employees at

will.” However, in light of the Pennsylvania Supreme Court’s

statement in Stumpp, 658 A.2d at 335, that the legislature has

not abrogated the general rule that public employees are

employees-at-will, we do not believe that the Commonwealth

Court’s statement in Franklin Twp. changes our analysis of

Miller’s due process claim. Indeed, in Stumpp, the Pennsylvania

Supreme Court expressly stated: “municipal entities lack the

authority to confer employment tenure by contract.” 658 A.2d

at 335.

20

Accordingly, the collective bargaining agreement that

Miller relies upon could not confer any property interest in

her employment or elevate her to something other than an

employee-at-will under Pennsylvania law, and she cannot,

therefore, establish the violation of a constitutional right

which is a condition precedent to a claim under § 1983.9

9

The existence of a termination for just cause only provision

in the collective bargaining agreement does not does not change

this result. The power to appoint necessary personnel is inherent

in the judicial power. Sweet v. Pennsylvania Labor Relations

Board, 322 A.2d 362 (Pa. 1974). “The authority to supervise

and to discharge court-appointed employees is not only a

necessary corollary to this appointment power but is also

essential to the maintenance of an independent judiciary.”

County of Lehigh, 489 A.2d at 1327 (citing Commonwealth ex

rel. Bradley v. Pennsylvania Labor Relations Board, 388 A.2d

736 (Pa. 1978), and Ellenbogen v. County of Allegheny, 388

A.2d 730 (Pa. 1978). In Pennsylvania, county commissioners

“are the exclusive representative of management in

representation proceedings and collective bargaining under [the

PERA] involving court employees paid from county funds.”

Ellenbogen, 388 A.2d at 735. However, the exclusive authority

of county commissioners to negotiate “wages, hours, and other

terms and conditions of employment,” 43 P.S. § 1101.701, does

not affect the inherent right of judges to hire, discharge and

supervise court employees. Id.; see also County of Lehigh, 489

A.2d at 1329 (“[C]ounty commissioners are not prohibited from

negotiating ‘wages, hours and other terms and conditions of

employment” provided such terms do not impinge upon judicial

control of hiring, discharge, and supervision in some concrete

manner.”). Moreover, “the judiciary has the inherent power to

prevent any actual impairment of its independence created by

the collective bargaining process.” County of Lehigh, at 1329

(citations omitted). Therefore, even if the parties to the

collective bargaining agreement here intended to grant “just

cause” employment status to court employees, there is

absolutely no authority to do so.

21

III. Conclusion

For the reasons set forth above, we conclude that

Miller cannot establish that Judge Saxton’s conduct violated

her constitutional rights, and that Judge Saxton is therefore

entitled to qualified immunity. We will therefore vacate the

order of the district court, and remand with instructions to

dismiss Miller’s complaint.

22