Furlong v. Gudknecht

BECKER, Circuit Judge,

dissenting.

The majority has held that an elected official may not consider party affiliation when making an appointment of a principal deputy in his office even though the state legislature has decided that such deputy will succeed to the office in the event of vacancy. I find this result most troubling and would so find it even were it not predicated upon the majority’s explicit and quite remarkable determination that political affiliation is inapposite to the elected office itself. I find equally untenable the other ground of the majority’s decision — that “political affiliation is inapposite because the possibility of succession is ... de minimis,” Majority opinion at 234.

I.

The majority’s finding that “the attendant duties of the Recorder of Deeds appear unaffected by the Recorder’s political views” represents an impermissible exchange of judicial opinion for legislative determination. If politics were of no importance, the legislature would not have provided that the position was to be filled by an election. Because, however, the legislature had indeed provided that the Recorder of Deeds is to be elected, we should respect the determination that the office has political aspects. “Clearly, partisan polities lies at the very core of our democratic process.” Horn v. Kean, 796 F.2d 668, 674 (3d Cir.1986) (in banc) (Aldisert, J., announcing the judgment of the court). 1

The implication of the majority’s finding in this regard is both clear and clearly wrong. The finding that the Recorder of Deeds does not hold an office sensitive to politics extends to the holder of that office the First Amendment protections to which he is not entitled under Elrod and Branti. Such construction is impermissible under our in banc decision in Horn v. Kean, where we quoted with approval Justice Powell’s dissent in Branti: “[No] incumbent [may] contend seriously that the voters’ decision not to re-elect him [in state-sponsored elections] because of his political views is an impermissible infringement upon his right of free speech or affiliation.” Branti, 445 U.S. at 533, 100 S.Ct. at 1302 (Powell, J., dissenting), quoted in Horn v. Kean, 796 F.2d at 674 . Yet this is precisely what the majority allows by the first part of its holding today.

*239 Because the Recorder of Deeds is elected to his position, I believe there can be no question that party affiliation is important to that office and, given the statutory scheme, to this case. See Horn v. Kean, 796 F.2d at 674 ; see generally The Changing American Voter (N. Nie, S. Verba & J. Petrocik, 2d ed. 1979) (describing role of parties and issues in elections). The Recorder’s position must therefore be considered “policymaking” for Elrod and Branti purposes. If a free election is to have any meaning in a democratic society, we must respect the political choices that are expressed by the voters. Because party affiliation is a vital ingredient in the electoral process, an elected official by definition must be considered an Elrod and Branti policymaker.

The majority does not satisfactorily answer this objection. Rather than focusing on the fact that the Recorder must stand election to assume and retain office, the majority resorts to a position that merely denigrates the significance of the Recorder’s duties. Not only do I find this argument beside the point, I find it wrong in both substance and in its exaggerated tone.

Although the majority finds that the existence of ministerial duties defeats the policymaking aspects of the elected Recorder’s role, the fact is that the Recorder is much more than a clerk. The elected Recorder has the responsibility for administration of a large office with some 25 employees and an annual budget of nearly three-quarters of a million dollars. He must perforce make a myriad of significant personnel decisions and budget allocation decisions. It is his responsibility to formulate policy concerning dealings with the public, a matter that Mr. Gudknecht thought to be an issue in the 1985 election campaign. See App. at 143a. Finally, the Recorder has major input into an enormously important policy decision — whether to convert the ancient system of physical recording of deeds and mortgages into a computerized operation. To describe the Recorder’s duties as essentially ministerial and clerical as the majority does is an exercise in overkill. As the French say, “On affaiblit toujours tout ce qu’on exagere.” La Harpe, Melanie, Act I, scene 1 (“One always weakens whatever one exaggerates.”). Moreover, even if the duties of the Recorder’s office were in a large part ministerial, this aspect of the job is not enough to overcome the conclusion that party affiliation is a necessary and important facet of the elected position. See Ness v. Marshall, 660 F.2d 517 (3d Cir.1981).

II.

If no office so important as to* warrant election can be considered any less than a policymaking position, then a position that may provide a successor to the elected official must similarly be considered one of policymaking. Furlong’s position is sensitive to political affiliation because he can succeed to the elected office of Recorder of Deeds. The fact of succession is vital. It represents a legislative determination that the Second Deputy is of sufficient importance to the overall operation of the Recorder’s Office to step into the shoes of the Recorder of Deeds. Moreover, the independent fact that in the event of succession the Second Deputy may “possess and discharge all of the rights, powers and duties” of the Recorder of Deeds makes the position one of political import. In sum, I believe that where an office holder can succeed to an elected policymaking position, the office holder should be considered a policymaker for Elrod and Branti purposes. The majority’s holding turns this fundamental principle on its head. The prospect that a court can emasculate the political decision of a legislature by nullifying the effect of its characterization of an office is frightening indeed.

The majority’s only retort to these arguments is essentially lip service. It professes a willingness to consider possible succession to the office of Recorder as a factor in its determination. However, it then proceeds to denigrate Furlong’s presuccession duties in the same manner as it did the Recorder’s. Moreover, the majority minimizes the possibility or duration of succes *240 sion in an attempt to satisfy itself that the possibility of succession is no problem. This exercise is not only irrelevant; it is also unfaithful to both the record and the practical realities.

It may be that in pure probability terms, the likelihood that there will be a permanent vacancy in the offices of both the Recorder and First Deputy is not high. 2 But such events are surely not unknown, and in such a case it is quite probable that the Second Deputy will accede to the Recorder’s function for as long as several years. The political infighting in Bucks County, Pennsylvania, is chronicled in numerous decisions over the past several years of this Court and the United States District Court for the Eastern District of Pennsylvania, where Bucks County is located. 3 Even assuming that a successor is nominated by the Governor, it is not uncommon in Pennsylvania for confirmation to be long delayed, particularly of nominees from counties with a strong two party system such as the County of Bucks.

Additionally, the probability of succession here cannot be considered any lower than any other instance of possible succession in any other governmental position. The majority’s argument therefore sweeps too broadly, effectively discounting all succession possibilities as de minimis. Other courts of appeals, however, have not analyzed succession under such a Bayesian concept. See, e.g., Tomczak v. City of Chicago, 765 F.2d 633, 638 (7th Cir.1985) (listing as a factor in support of finding that First Deputy was a policymaker fact that “whenever the Commissioner was absent, the First Deputy would assume the Commissioner’s duties”). But all that is relatively unimportant. What is important is what we have stated above — that the legislature has made the judgment that the Second Deputy Recorder is sufficiently important that he may succeed to the elected position should the need arise. 4

III.

Finally, the majority ignores the clear instruction of Horn v. Kean, 796 F.2d 668 (3d Cir.1986) (in banc). The majority states that in Horn we have “chosen to construe Branti narrowly.” Rather we said much more — “that it is a danger for courts, other than the Supreme Court, to expand this particular [Elrod and Branti ] rule.” Id. at 678 (Aldisert, J., announcing the judgment of the court).

By its decisions in Elrod and Branti, the Supreme Court has not found the entire patronage system unconstitutional. Rather, it has determined that, for many government positions, considerations of party affiliation are not of sufficient governmental interest to justify the encroachment upon protected First Amendment interests. The teaching of Horn and the clear message of the Pennsylvania legislature thus control this case and compel the conclusion that Mr. Gudknecht should have the right to discharge Mr. Furlong, for *241 Furlong’s position is highly sensitive to political affiliation. 5

I respectfully dissent.

. While Chief Judge Aldisert’s opinion did not command a majority, the concurring opinions of Judges Seitz and Adams endorse the salient substantive bases of the opinion. On the points discussed in this opinion, therefore, Horn represents an in banc majority holding.

. The record reveals that temporary vacancies were quite common for both offices. Illnesses, vacations, other job responsibilities and indeed even lunch hours would require the Second Deputy to act in place of the principal policymaker. See App. at 80a-84a. Because the offices were considered vacant whenever the Recorder and First Deputy were absent, Mr. Gudknecht himself concluded that the Second Deputy ran the Recorder’s office a large part of the time. See App. at 82a.

. See e.g., Brown v. Trench, 787 F.2d 167 (3d Cir.1986); Hoffman v. Fonash, No. 84-0090 (E.D.Pa. February 28, 1984) aff’d 787 F.2d 582 (3d Cir.1986); Shantz v. Fonash, No. 83-6173 (E.D.Pa. July 24, 1985); Mitman v. Glascott, 557 F.Supp. 429 (E.D.Pa.1983), aff’d, 732 F.2d 146 (3d Cir.1984).

. The majority attempts to distinguish the Fifth Circuit’s holding in Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir.1979), which found succession of vital importance. The attempt fails. The first point, that Stegmaier preceded Branti, does not lessen the force of that case’s reasoning. Its second point, that the possibility of succession is de minimis, is too broad, see supra. That point is similarly inapposite because it ignores the fact of a legislative determination, which I find conclusive.

. While not a basis for my dissent, it is instructive to note that Furlong had actively supported Gudknecht’s opponent, Democrat Janice DeVito, throughout her campaign and apparently also had a social relationship with her. See App. at 109a-10a, 153a.