Martin Camacho v. Symra D. Brandon and City of Yonkers, New York, Gordon Burrows, Individually and John Spencer, Individually

JOHN M. WALKER, JR., Chief Judge,

concurring.

I write separately because I think that the Elrod/Branti policymaker exception is not applicable to elected officials like Fuentes. However, I reach the same result as the majority because I believe that the action taken by Brandon was not an actionable violation of Fuentes’s First Amendment rights.

The Elrod¡Branti exception allowing for removal of policymaking staffers on the basis of their political associations derives from the democratic requirement that the winner of the election be able to carry out his or her policies without hindrance from political aides held over from the previous administration. See Elrod v. Burns, 427 U.S. 347, 367 , 96 S.Ct. 2673 , 49 L.Ed.2d 547 (1976) (plurality opinion); see also Branti v. Finkel, 445 U.S. 507, 518 , 100 S.Ct. 1287 , 63 L.Ed.2d 574 (1980). As the Elrod Court explained, the policymaker exception is designed to ensure that “representative government not be undercut by tactics obstructing the implementation *166 of policies of the new administration, policies presumably sanctioned by the electorate.” Elrod, 427 U.S. at 367 , 96 S.Ct. 2673 .

Although Fuentes is indeed a policymaker, the Elrod/Branti exception does not fit his situation because he is an elected official and not an employee of an elected official. It plainly would not serve the purpose of the policymaker exception — to permit democracy to operate effectively— to extend the exception to elected officials and thereby eliminate any protection of their First Amendment rights. In fact, as the majority notes, Maj. Op., supra, at 160, the Court recognized in Bond v. Floyd that representative democracy requires that we provide legislators broad freedom of speech. See 385 U.S. 116, 135-36 , 87 S.Ct. 339 , 17 L.Ed.2d 235 (1966). A legislator’s freedom of association, especially his or her freedom to associate with other legislators, is equally important.

The poor fit between the Elrod/Branti exception and elected officials is particularly striking if we posit a case in which a majority of the Council barred Fuentes from Council meetings, or otherwise prevented him from voting, in retaliation for his political associations. If the El-rod/Branti policymaker exception applies to elected officials, then a legislative majority could take such acts with impunity despite their anti-democratic nature. But I have no doubt that, were that case before us, we would find that Fuentes retained the right of free association under the First Amendment and that such retaliatory measures violated that right. See id. at 135-36 , 87 S.Ct. 339 ; see also, Scott v. Flowers, 910 F.2d 201, 213 (5th Cir.1990) (holding that the First Amendment barred the Texas Commission on Judicial Conduct from reprimanding elected judicial official for speech critical of judicial practices); Miller v. Town of Hull, 878 F.2d 523, 533 (1st Cir.1989) (holding that the First Amendment prevents the Board of Selectmen from removing elected members of the town redevelopment authority in retaliation for their votes). Thus, I believe that the policymaker exception does not properly apply to elected officials and that courts must stand firm to protect the right of free association in the political arena.

However, as the majority suggests, not every retaliation gives rise to a claim. Maj. Op., supra, at 162 n. 10; see Colson v. Grohman, 174 F.3d 498, 511 (5th Cir.1999) (“[M]ere criticisms do not give rise to a constitutional deprivation for purposes of the First Amendment.”). Moreover, courts should be reluctant to interfere with intra-legislative conduct that falls short of depriving the electorate of representation in the legislature. Although the El- md/Branti policymaker exception does not apply to elected officials, courts are properly guided by the goal identified in Elrod of permitting democracy to operate effectively. In the legislative context, this goal is served by recognizing that courts should intervene in only the most severe cases of legislative retaliation for the exercise of First Amendment rights, thereby allowing ample room for the hurly burly of legislative decisionmaking. As the majority opinion observes, it would be inappropriate for courts to attempt to supervise or police the give and take of intra-legislative politics. Maj. Op., supra, at 162. In Coleman v. Miller, the Supreme Court recognized a distinction between “mere intra-parliamen-tary controversies],” which did not confer standing to sue, and claims of vote nullification, which did establish standing. 307 U.S. 433, 441 , 59 S.Ct. 972 , 83 L.Ed. 1385 (1939). A similar line exists here: In order to be actionable, intra-legislative retaliation must so severely obstruct a legislator’s ability to carry out his legislative functions that his constituents are effec *167 tively denied representation in the legislature.

The firing of Camacho did not cross this line. Fuentes remained fully capable of functioning as a councilman and voting on Council proposals. Fuentes was not even deprived of a fixed entitlement granted to each council representative; the assistance of Camacho was a perquisite provided by the Democratic Minority Coalition. Although Camacho worked most closely with Fuentes, he was employed by the Democratic Minority Coalition. Maj. Op., supra, at 157. Brandon’s use of Democratic Minority Coalition resources to exert leverage on Council members like Fuentes is an ordinary part of the arm-twisting of legislative politics. Therefore, although I disagree with the majority’s application of the policymaker exception to elected officials, I find this retaliation too insubstantial to establish a claim. I concur in the judgment.