Opposition Brief — Fazio v. City & County of San Francisco

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No. 97-1353

In The

Supreme Court of the United States

October Term, 1997

7

WILLIAM FAZIO,

Petitioner,

CITY AND COUNTY OF SAN FRANCISCO,

ARLO SMITH,

Respondents.

a

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

¢

Louise H. RENN:

City Attorney

*JONATHAN HOLTZMAN

Chief Deputy City Attorney

ALeEETA M. VAN RuUNKLI

Rick SHEINFIELD

E.ten M. Forman

Deputy City Attorneys

1390 Market Street, 5th Floor

San Francisco, California 94102-5408

Telephone: (415) 554-4283

Facsimile: (415) 554-4214

Counsel for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING (¢ 800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the First Amendment requires an elected

District Attorney to retain a high-level Assistant District

Attorney in an “at-will” position while the Assistant Dis-

trict Attorney runs for election against him.

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TABLE OF CONTENTS

Page

QURSTION PIRES EGe .cccccnecuenscbuaeaesseue i

iSpy 0 0b @gy 8 | pp 1

STATERGENT OC} PAGES «sc 0ceeccesauseeese 2

REASONS FOR DENYING THE WRIT............. 4

THE NINTH CIRCUIT’S DECISION IS SUPPORTED

BY SETTLED LAW AND RAISES NO ISSUES

WARRANT As GUNS 060s ceecnvieesnneaeeeres |

A. ELROD-BRANTI ABPTUBSD occccccssecesascesens +

B. THE NINTH CIRCUIT’S DECISION IS SUP-

PORTED BY PUBLIC POLICY AND UNANI-

MOUS CIRCUIT COURT DECISIONS.......... 8

COUNNCL ARG oo nccvesecsscuecduusseenne ee 11

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TABLE OF AUTHORITIES

Page

CASES

Americanos v. Carter, 74 F.3d 138 (7th Cir.), cert.

ee ee PE CU UD 6c oi eS cceeewcccscceces -)

Bavaro v. Pataki, 130 F.3d 46 (2nd Cir. 1997).......... 9

Board of County Commissioners v. Umbehr, 116 S.Ct.

Ra EIGN IEP sn ta a to 6, 7

Branti v. Finkel, 445 U.S. 507 (1980) ............. passim

Brinston v. Dunn, 928 F.Supp. 669 (S.D. Miss. 1996) ..... 5

Connick v. Myers, 461 U.S. 138 (1983)............ a & 7

Elrod v. Burns, 427 U.S. 347 (1976) .............. passim

Equal Employment Opportunity Commission v. Reno,

7am £26 SBl (lide Ciz. 1965).................520. 10

Finkelstein v. Bergna, 924 F.2d 1449 (9th Cir.), cert.

ee OE ME OE sg oka anbheberscesceues 10

Gordon v. County of Rockland, 110 F.3d 886 (2d Cir.

te te ata ee Od ee i, ol ae w ek uu

Livas v. Petka, 711 F.2d 798 (7th Cir. 1983)........... 10

Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991)...... 10

Mummau v. Ranck, 687 F.2d 9 (3rd Cir. 1982) ........ 10

Ness v. Marshall, 660 F.2d 517 (3rd Cir. 1981)........ 10

Newcomb v. Brennan, 558 F.2d 825 (7th Cir.), cert.

co a BR ce 10

O'Hare Truck Service v. City of Northlake, 116 S.Ct.

ad ea oe Cod see sche ew eene une e 6, 7

Pickering v. Board of Education, 391 U.S. 563 (1968)

Pee Neen SSS) o OU eee e005 444040 604 ct eee eseCens ee ey

iv

TABLE OF AUTHORITIES —- Continued

Page

Rankin v. McPherson, 483 U.S. 378 (1997), reh.

Gemted, 453 US. TOG CHOG7) oon oc ccc ccencecsasescscs 7

Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. —

a ee tree ee CI ae awe 5

Wallace v. Benware, 67 F.3d 655 (7th Cir. 1995)........ 5

Weisbuch v. County of Los Angeles, 119 F.3d 778 (9th

ee I oo aek aca oA Oe Bi eae oR ea eas 5

Wilbur v. Mahan, 3 F.3d 214 (7th Cir. 1993)...... 4,5, 7

Williams v. City of River Rouge, 909 F.2d 151 (6th

Ge NEN EU sien KC ene delle ue Maree cabo oah ones 10

OTHER AUTHORITIES

San Francisco Charter section 3.402 ................ 3, 8

Susan Lorde Martin, A Decade of Branti Decisions,

39 Am. U. L. Rev. 11, 46-47 (1989)................. 9

U.S. Constitution First Amendment ................ 7, 8

INTRODUCTION

In Fazio v. City and County of San Francisco, the Ninth

Circuit applied well-settled law to the facts of the case to

hold that the then District Attorney of San Francisco

could dismiss a high-level Assistant District Attorney for

running for election against him.! The Ninth Circuit's

decision broke no new ground, is supported by decisions

of this Court, and is consistent with other circuit courts

that have addressed the issue.

In Elrod v. Burns, 427 U.S. 347, 368 (1976), this Court

set forth the parameters of the protection afforded by the

First Amendment to public employees dismissed for

political reasons. If the public employee is a “policy-

maker,” the employee may be dismissed consistent with

the Constitution. In Branti v. Finkel, 445 U.S. 507, 518

(1980), this Court clarified that the essential inquiry in

deciding whether an employee is a policymaker is

whether the employer can demonstrate that political affil-

iation and loyalty are appropriate requirements for the

effective performance of the employee’s position. Of

course, such inquiry is necessarily fact-based. See Elrod,

427 U.S. at 369.

Fazio requests certiorari for two reasons: First, he

claims that the Ninth Circuit should have applied the

balancing test of Pickering v. Board of Education, 391 U.S.

563 (1968) to the instant case. Second, he claims that the

decision of the Ninth Circuit is against public policy.

1 Respondents conceded only for purposes of their

summary judgment motion that Fazio was dismissed for

challenging the District Attorney.

2

Neither of Fazio’s claims has merit. As to the first

claim, this Court draws a distinction between termina-

tions for political reasons and terminations based on

speech critical of the employer. Generally, in the former

circumstance, Elrod-Branti applies; in the latter circum-

stance, Pickering applies. Elrod-Branti applies here. Fazio

never alleged that he was a whistleblower.

As to the second claim, the Ninth Circuit’s decision is

supported by the public policy articulated by this Court

in Elrod and Branti: If an elected official had to retain

policymaking employees who are disloyal, the mandate

of that official to carry out the will of the voters would be

thwarted. This view is shared by each of the other circuits

that have addressed the issue. These courts have held

that all government attorneys save public defenders are

policymakers for purposes of Elrod-Branti. \

The petition for writ of certiorari should be denied.

¢

STATEMENT OF FACTS

In 1995, Fazio decided to challenge the then District

Attorney, Arlo Smith, in the next election. Fazio alleged,

and Smith conceded for the purpose of his summary

judgment motion, that Fazio was dismissed because of

his candidacy. At the time of the termination, Fazio was a

20-year veteran of the San Francisco District Attorney’s

Office who tried some of the highest profile cases in the

office. He held the position of “Head Attorney,” earned

more than $100,000 per year and exercised independent

discretion in prosecuting capital cases and other homi-

cides. Because of his position and experience, Fazio

appeared frequently in newspapers as a spokesperson for

the office.

The District Attorney in San Francisco is an elected

official. Under San Francisco Charter section 3.402, the

position of Assistant District Attorney is an at-will posi-

tion, and no cause is required to dismiss a prosecutor.

Also under the Charter, the District Attorney or his assis-

tants “shall prosecute all criminal cases in the municipal

and superior courts, draw all complaints, and issue war-

rants for the arrest of persons charged with crime who

are to be prosecuted in such courts.” Id. In other words,

assistant district attorneys act in the name of the District

Attorney.

Fazio sued Smith and the City and County of San

Francisco for among other things, violation of his First

Amendment rights. The district court granted summary

judgment for the defendants on Fazio’s First Amendment

claim.? The court concluded “that the position of Assis-

tant District Attorney/Head Attorney is such that politi-

cal affiliation and loyalty are appropriate requirements

for effective performance.” Pet. App. C at 27a.

The Ninth Circuit affirmed. Based on an analysis of

Fazio’s position, the panel held that Fazio was a policy-

maker. Pet. App. A at 12a. Quoting from Judge Posner of

the Seventh Circuit, the panel reasoned: “Indeed, ‘[a]

public agency would be unmanageaile if its head had

to... retain his political enemies... . in positions of

2 Trial is set for Fazio’s defamation and liberty interest

claims for November 1998.

confidence or positions in which they would be . . . exer-

cising discretion in implementation of policy.’ ” Pet. App.

A at lla, quoting Wilbur v. Mahan, 3 F.3d 214, 217 (7th Cir.

1993).3

4

REASONS FOR DENYING THE WRIT

THE NINTH CIRCUIT’S DECISION IS SUPPORTED

BY SETTLED LAW AND RAISES NO ISSUES WAR-

RANTING REVIEW.

This Court should deny Fazio’s petition for a writ of

certiorari. The Ninth Circuit applied established legal

principles to the facts of this case in holding that Fazio

was a policymaker who could be dismissed based on his

political activities. The application of settled principles to

particular facts does not justify review by this Court.

Further, the result reached below was correct under any

reading of this Court’s precedent.

A. ELROD-BRANTI APPLIES

As this Court held almost twenty years ago in Branti,

“if an employee's private political beliefs would interfere

with the discharge of his public duties, his First Amend-

ment rights may be required to yield to the State's vital

interest in maintaining governmental effectiveness and

efficiency.” 445 U.S. at 517. Thus, elected public officials

* The panel did not consider San Francisco's alternative

argument that even if the Pickering balancing test applied, the

government's interest in avoiding disruption outweighed

Fazio’s First Amendment interest. See infra at 7 n.4.

are not required to retain “policymaking” employees who

are politically disloyal.

And this case involves a dismissal based on political

disloyalty. As conceded by Respondents for their sum-

mary judgment motion, Smith dismissed Fazio because

he was running against Smith for office; Fazio was not

dismissed for circulating a petition on office conditions as

in Connick v. Myers, 461 U.S. 138 (1983), writing letters to

the press as in Pickering, supra, filing a lawsuit alleging

discriminatory practices by his employer as in Rendish v.

City of Tacoma, 123 F.3d 1216 (9th Cir. 1997), or expressing

criticism of his supervisor’s practices as in Weisbuch v.

County of Los Angeles, 119 F.3d 778 (9th Cir. 1997). Indeed,

in the district court, Fazio stated in his declaration in

opposition to the motion for summary judgment that he

“never publicly criticized Arlo Smith or the office.” Fazio

Decl. at 5 (emphasis added).

Fazio claims that the Ninth Circuit should have

applied the Pickering balancing test. That test requires

balancing the government's interest in the effective oper-

ation of the workplace with the employee’s speech inter-

ests. 391 U.S. 563, 568. But the test applies only when an

employer terminates a government employee on the basis

of his speech. The test does not apply where, as here, .he

employer terminates a policymaking employee for chal-

lenging that employer in an election. See Wilbur v. Mahan,

3 F.3d at 217 (Elrod-Branti, rather than Pickering, applies

when subordinate challenges superior in election); see also

Wallace v. Benware, 67 F.3d 655, 661, n.8 (7th Cir. 1995)

(same); Brinston v. Dunn, 928 F.Supp. 669, 671 (S.D.Miss.

1996) (case involving deputy clerk dismissed for running

against boss “is a political patronage case and not a

public speech case”).

To support his position, Fazio relies on O’Hare Truck

Service v. City of Northlake, 116 S.Ct. 2353 (1996) and its

companion case, Board of County Commissioners v. Umbehr,

116 S.Ct. 2342 (1996).4 But in both cases, this Court

emphasized the applicability of Elrod-Branti when a polit-

ically motivated act is in issue. See O'Hare, 116 S.Ct. at

2358 (“Elrod and Branti involved instances where the raw

test of political affiliation sufficed to show a constitu-

tional violation . . . ”); Umbehr, 116 S.Ct. at 2351 (demon-

strations of “political hostility” are generally protected

“except where political affiliation may reasonably be con-

sidered an appropriate job qualification . . . ”) (citing

Branti, 445 U.S. 507). Neither case suggests that this Court

has abandoned the Elrod-Branti analysis in cases involv-

ing political affiliation and loyalty.

Fazio also argues that because this Court did not

apply the Elrod-Branti analysis in Connick v. Meyers, 461

U.S. 138, a case involving an assistant district attorney,

the Court has implicitly found prosecutors are not subject

to Elrod-Branti. Not so.

In Connick, an assistant district attorney was termi-

nated because she distributed throughout her office a

questionnaire concerning office policy and morale. This

Court focused on whether the topics of the questionnaire

4 Fazio points to language in O’Hare regarding the

appropriate test to apply when an employee is dismissed for a

mixture of that employee’s speech and political affiliation. Pet.

at 14. This case involves no such mixture. Candidacy for the

electoral position of one’s boss is pure politics.

were matters of public concern. Connick provides no

guidance for the Court here because the assistant was not

dismissed because of her political affiliation or actions.

The opinion contains no discussion about whether assis-

tant district attorneys are policymakers, or whether the

claims of assistant district attorneys arguing that they

were discharged for exercising their First Amendment

rights should be evaluated under the Pickering test or the

Elrod-Branti exception. In short, Connick is plainly inap-

posite.°

This case is about a single issue: political loyalty. The

sole action in question was Fazio’s political candidacy. As

Judge Posner stated in Wilbur, “The declaration of can-

didacy in these circumstances is a declaration of war. It

makes the candidate a political enemy of his boss

whether or not they are members of the same party... .

3 F.3d at 218. It follows that the analysis set forth in Elrod,

Branti, and their progeny — including O’Hare and Umbehr

— required the Ninth Circuit to examine whether political

loyalty is a reasonable requirement to impose on the

position of Head Attorney in the District Attorney’s

Office.

° Although Fazio belabors the distinction between Elrod-

Branti and Pickering, ironically, the result in this case would be

the same under either analysis. This Court has observed that

disruption in the workplace may be so foreseeable when a high

level employee’s speech is concerned that no actual disruption

need occur before the balance weighs in favor of the

government’s interests. Rankin v. McPherson, 483 U.S. 378 (1997),

reh. denied, 483 U.S. 1056 (1997); Connick v. Meyers, 461 U.S. at

151-152. As discussed in Wilbur, supra, it is hard to imagine a

more disruptive act than actively campaigning against one’s

superior.

ee a

Applying settled law to these facts, there is only one

possible conclusion. Fazio’s prosecutorial position was

such that it was reasonable for the District Attorney to

require his political loyalty. The San Francisco Charter is

enacted by the voters. Under the Charter, most San Fran-

cisco employees are covered by civil service provisions

that bar dismissal for political reasons. But assistant dis-

trict attorneys serve “at the pleasure” of the District

Attorney. San Francisco Charter section 3.402. Their at-

will status reflects the voters’ intent to keep this small

group of employees accountable to their elected boss.

In addition, Fazio’s duties as an assistant district

attorney were nearly identical to those of the District

Attorney. Pet. App. A at 2la. As an assistant district

attorney, Fazio represented the District Attorney by his

actions in court and his statements to the media. The

need for Fazio’s loyalty is obvious.

B. THE NINTH CIRCUIT’S DECISION IS SUP-

PORTED BY PUBLIC POLICY AND UNANIMOUS

CIRCUIT COURT DECISIONS.

Fazio also claims that the Ninth Circuit’s decision is

against public policy. In Elrod and Branti, however, this

Court recognized that there are two public policies at

work in political affiliation and loyalty cases: First is the

unquestioned First Amendment protection for the politi-

cal beliefs and rights of government employees. Second is

the voters’ right to effective government. Elrod, 427 U.S. at

368. Underlying Elrod and Branti is the fact that modern

government frequently requires that elected officials

carry out their polices through deputies. If public officials

were required to retain “policymaking” deputies who are

disloyal, the voters’ right to elect public officials, and to

affect change in their government, would be thwarted.

This point is not merely theoretical; it has direct

application in this case. San Francisco employs over 100

assistant district attorneys. Each assistant is subject only

to broad supervision and guidelines. Each assistant

speaks in the name of his elected boss.

Criminal cases often receive heavy press coverage. A

single event or decision made by an assistant — a lost

case, the release of a dangerous suspect, a plea bargain, a

careless remark to the press — can end the elected district

attorney’s career. Moreover, decisions such as what

crimes to pursue or what penalties to seek are deeply

imbued with public policy. An elected district attorney

cannot entrust these subtle, yet critical tasks to a political

foe.

For these reasons, the decision of the Ninth Circuit

here comports with the decisions of every circuit that has

addressed the issue. “All circuit court decisions — and

almost all other court decisions — involving attorneys in

government service, other than public defenders, have

held that Elrod/Branti do not protect these positions.”

Gordon v. County of Rockland, 110 F.3d 886, 890-91 (2d Cir.

1997) quoting Susan Lorde Martin, A Decade of Branti

Decisions, 39 Am. U. L. Rev. 11, 46-47 (1989); see als

Bavaro v. Pataki, 130 F.3d 46, 51 (2nd Cir. 1997) (associate

and assistant counsel to state health department are

policymakers because of their prosecutorial role); Ameri-

canos v. Carter, 74 F.3d 138 (7th Cir.), cert. denied, 116 S.Ct.

1853 (1996) (assistant attorney general is policymaker);

10

Williams v. City of River Rouge, 909 F.2d 151, 154, 155 (6th

Cir. 1990) (city attorney not protected against politically

motivated dismissal); Equal Employment Opportunity Com-

mission v. Reno, 758 F.2d 581 (11th Cir. 1985) (assistant

state attorney is in policymaking position); Livas v. Petka,

711 F.2d 798, 801 (7th Cir. 1983) (assistant prosecutors are

policymakers); Monks v. Marlinga, 923 F.2d 423, 425-426

(6th Cir. 1991) (same); Mummau v. Ranck, 687 F.2d 9, 10

(3rd Cir. 1982) (same); Ness v. Marshall, 660 F.2d 517, 522

(3rd Cir. 1981) (assistant solicitor is policymaker); New-

comb v. Brennan, 558 F.2d 825 (7th Cir.), cert. denied, 434

U.S. 968 (1977) (deputy city attorney is a policymaker).°®

Fazio suggests that these cases sweep too broadly -

that all assistant district attorneys should not be consid-

ered policymakers. The merits of that argument are not

presented by this case. Fazio was a high-level homicide

prosecutor. He concedes that he tried some of the highest

profile cases in the office. His employer was entitled to

insist upon his political !oyalty.

¢

6 Fazio’s reliance on Finkelstein v. Bergna, 924 F.2d 1449 (9th

Cir.), cert. denied, 502 U.S. 818 (1991) is misplaced. First, the

language that Fazio points to was unnecessary to the resolution

of the case. Second, the Ninth Circuit here correctly

distinguished Finkelstein because the case involved a civil

service attorney. Third, Finkelstein cited with approval decisions

of the Third and Seventh Circuits holding that under Elrod-

Branti, at-will assistant district attorneys could be dismissed for

political reasons without offending the First Amendment.

sia iain iil

11

CONCLUSION

The petition for writ of certiorari should be denied.

Dated: March 20, 1998

Respectfully submitted,

Louise H. RENNE

City Attorney

JONATHAN HOLTZMAN

Chief Deputy City Attorney

ALEETA M. VAN RUNKLE

Rick SHEINFIELD

ELLEN M. ForRMAN

Deputy City Attorneys

Counsel for Respondents