Opposition Brief — Diederich v. County of Rockland

No. 98-1487

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

MICHAEL D. DIEDERICH, JR..,

Petitioner,

v.

THE COUNTY OF ROCKLAND; C. SCOTT VANDERHOEF,

COUNTY EXECUTIVE and PAUL NOWICKI,

COUNTY ATTORNEY,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Davip F. Dossins

Counsel of Record

JOHN D. WINTER

Davip G. JACOBY

PATTERSON, BELKNAP, WEBB

& TyLer LLP

Attorneys for Respondents

1133 Avenue of the Americas

New York, New York 10036-6710

(212) 336-2000

(52422 @) Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES ~

(800) 274-3321 * (800) 359-6859

i

QUESTION PRESENTED

Whether a decision by the United States Court of Appeals

for the Second Circuit holding that the First Amendment does

not protect petitioner, an assistant county attorney, from a

politically-motivated dismissal should be reviewed by this

Court even though the decision below neither presents a novel

question of federal law, nor conflicts with any decision of

this Court or of any other circuit.

ll

TABLE OF CONTENTS

Page

Question Preseed 566s ks ev ca Heer i

Fabie Of COMene S66 a ors Fee eee eas il

Fable of Cited Ammonites: oo. ee iv

Stateement OF The CRG 6 oss kw Re ewe es l

Reasons for Denying the Writ .................. 7

I. The Second Circuit’s Decision Does Not Raise

An Important Issue That Calls For This Court’s

BOVIS Cos Ole n5 tn 21 ee eee 7

A. The Circuits Agree That Similarly Situated

Attorneys Do Not Enjoy First Amendment

PHORM Ss FEROS ae a ees i

B. The Second Circuit’s Ruling Is Consistent

Wi PT es os wae baa 8

C. The Second Circuit Correctly Analyzed Mr.

Diederich’s Duties In Applying The Branti

OM SC vexvees Pewee bases ks 10

D. There Is No Conflict Between The Second

Circuit And The Other Circuits As To

Whether The Application of The Branti

Standard Is A Question Of Law Or Fact

Ez.

lil

Contents

The Decision Below Is Not “Sweeping”

And Does Not Create An Inappropriate Per

UR oe es oe vate Le ee ete Cepia sk

The Second Circuit’s Opinion Does Not

Conflict With This Court’s “Free Speech”

RIE 65 0G Wea ay Potent REESE,

Il. Mr. Diederich Misstates New York Law When

He Asserts That He Was Protected From

Politically Motivated Discharge ...........

Il. Mr.

Diederich’s Other Points Provide No

Reason To Review This Case .............

A.

Mr. Diederich’s Section 1983 Claim Is

PUNE gee re Pan Pie, bo Site SY

Testimony From The Gordon Trial Is

nts ete a RACES TEE ER ei ale ore

Attorneys’ Ethical Obligations Are

EEE, See fo ere a aes Le es,

D. The Guarantee Clause of the Constitution Is

Conclusion

MEINE 65 ers Seow CK Bowe ek

a SS O.& 8S 66.6.0 O50 Ba OS & 8 66 © dob" 8. 6a 8's s o%

Page

14

17

18

22

23

24

27

iv

TABLE OF CITED AUTHORITIES

Page

Cases:

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

cert. denied, 517 U.S. 1222 (1996) ............ 8

Baker v. Carr, 369 U.S. 186 (1962), aff'd, 393 U.S.

PREC ISORT ik oo 5a onal ens ee eee 25

Bauer v. Bosley, 802 F.2d 1058 (8th Cir. 1986),

cert. denied, 481 U.S. 1038 (1987) ........ 8, 13, 14, 15

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

Brown v. Trench, 787 F.2d 167 (3d Cir. 1986), aff'd,

CAP Fd SAUTE 5 Cx ahaa eee 13

Burger v. Judge, 364 F. Supp. 504 (D. Mont.), aff'd,

BES Ui EGOS ATS oor oo re aN a ake ee 25

Clark v. Brown, 861 F.2d 66 (4th Cir. 1988) ...... 8

Connick v. Myers, 461 U.S. 138 (1983) .......... 17

Cutcliffe v. Cochran, 117 F.3d 1353 (11th Cir. 1997),

cert. denied sub nom., Cutcliffe v. Jenne, 118 S. Ct.

LISS. ATISR 5s cc Seok bee ee ea ee 16, 17

Delong v. United States, 621 F.2d 618

(4ie Car. FORGE oy bso cuviee veya eda ee eres 14

PAT Ra 06) TG en -

tere

v

Cited Authorities

Page

Deth v. Castimore, 245 A.D. 156, 281 N.Y.S. 114

(4G DONS TPIS sic a 20

Diederich v. County of Rockland, 999 F. Supp. 568

(S.D.N.Y.), aff'd, 166 F.3d 1200, 1998 U.S. App.

Lele 31460 (26 Cie 1998) Sa 6

Elrod v. Burns, 427 U.S. 347 (1976) ..... 1, 7, 8, 18, 21, 22

Fazio v. City And County of San Francisco, 125 F.3d

1328 (9th Cir. 1997), cert. denied, U.S. _, 118

i Se RE os bbc ak eek ce es 8, 18

Finkelstein v. Bergna, 881 F.2d 702 (9th Cir. 1989),

cért. denied, 302 U.S. 818 (1991) 2.666666 once 18

Gordan v. Cochran, 116 F.3d 1438

CERI RN, TOOTS onda Wa Cua Us peaeae eel 12,14

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

Cir.), cert. denied, U.S. __,118S. Ct. 74

LSet 6 eS ee ee ee fa passim

Horton v. Taylor, 767 F.2d 471 (8th Cir. 1985) .... 12

Jiminez Fuentes v. Torres Gaztambide, 807 F.2d 236

(1st Cir. 1986), cert. denied, 481 U.S. 1014

CRT Ree ee eae ee eb eee 9, 33722

Johnston v. Koppes, 850 F.2d 594 (9th Cir. 1988) .. 18

vi

Cited Authorities

Page

Kohler v. Tugwell, 292 F. Supp. 978 (E.D. La. 1968),

aff'd, 393. U.S. S31 CEDGGD . és 0aca cnn be eee 25

Largo v. Vacco, 977 F. Supp. 268 (S.D.N.Y. 1997) .. 20

Livas v. Petka, 711 F.2d 798 (7th Cir. 1983) ...... 8, 13

Merriweather v. Roberts, 268 N.Y. 12, 196 N.E. 621

CROSSE as, in 8 eek ee EET ee 20

Monks v. Merlinga, 923 F.2d 423 (6th Cir. 1991) .. 8

Mumford v. Basinski, 105 F.3d 264 (6th Cir.),

cert. denied, 118 S. Ct. 298 (1997) ............ 12

Mummau v. Ranck, 531 F. Supp. 402 (E.D. Pa),

aff'd per curiam, 687 F.2d 9 (3d Cir. 1982) .-.. 8,13

Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981) .. 5, 8, 13, 16

O'Connell v. Gorski, 715 F. Supp. 1201 (W.D.N.Y.

PBF) 5 a5. io Se eee Reale eae 20

O'Connor v. Steeves, 994 F.2d 905 (1st Cir.), cert.

denied sub nom., Town of Nahant, Mass v.

O'Lonnor, $10:4).5. HZ4 GIGS) ics cassie, 1]

O'Hare Truck Service, Inc. v. City of Northlake, 518

Ls TAR CIPRO sav case tbe ey bees ea hae -

vii

Cited Authorities

Page

Ottinger v. Civil Service Commission, 240 N.Y. 435,

ENG PERar ET CRORE sis ee See ok awe bk de 20

Parrish v. Nikolits, 86 F.3d 1088 (11th Cir. 1996),

cert. denied, 520 U.S. 1228 (1997) ........... 11, 12

People v. Prendergast, 148 A.D. 129, 132 N.Y.S. 115

REGENTS NEE 5 og Od oC oka e oLaeeae 19

Peters v. Delaware River Port Auth. of Penn. and N.J.,

16 F.3d 1346 (3d Cir.), cert. denied, 513 U.S. 811

LR WMOR ONE) ae Bis Kee peed Hwee ee ea 10, 11

Pickering v. Board of Education,

oak Shee SE RE oo on ee a eo ee 17

Pounds v. Griepenstroh, 970 F.2d 338 (7th Cir. 1992),

cert. denied, 507 U.S. 910 (1993) ............. 8

Reynolds v. Sims, 377 U.S. 533 Ce yeee Cx 25

Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997),

cert. denied, 118 S. Ct. 693 (1998) ............ 17

Soderbeck v. Burnett County, 752 F.2d 285 (7th Cir.),

cert. denied, 471 U.S. 1117 (1985) ............ 14

Vezzetti v. Pellegrini, 22 F.3d 483

Oe I 8 wae) fs es oe s, 9, 15, 22

Vill

Cited Authorities

Page

Voorhis v. Warwick Valley Central School District, 92

A.D.2d 571, 459 N.Y.S.2d 325 (2d Dep’t 1983) .. 20

Waskovich v. Morgano 2 F.3d 1292

C36 Cir, SOD iin ei 6 Ci Os ee a ea 7, 8, 10, 11

Wetzel v. Tucker, 139 F.3d 380 (3d Cir. 1998) ..... 1]

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

1900) 5 ae RS a ee B,45,/44

Statutes:

42: USS 2196 hs eS eS oe 22

N.Y. Civil Setwite Law 6 42 sa Geeta 18

NLY. Civil Sorvine LOW6 7S fie vik eee 20

N.Y. Civil Service Law § 107 (McKinney 1983 & Supp.

RR) oo ee Sei he a a nk Lee ae 18, 19, 20

N.Y. County Law § 502 (McKinney 1991 & Supp.

RE i RE A ane eee 2, 26

United States Constitution:

U.S. Comet, ae, Fs os 15 aay ogee ees passim

U.S. Comet, gen FV yo ks a eee ee ees 5

ec aes

ix

Cited Authorities

Page

Rule:

Perec Mee Sh cc pad obs S Sob is a eb es Pe es 27

Other Authorities:

Laws of Rockland County, Code of Ethics, § 66.11.1,

DUNNE ELPA PLETE) oi ook bv acekecueeees 2, 26

1 Ronald Rotunda & John Nowak, Treatise on

Constitutional Law, § 3.4 (2d ed. 1992 & Supp. 1999)

tr

ws

ee de ee ee ee ee ee ON ee ae ee ae et ee ee wr we ae ee ry et a oe ee ee

]

Respondents respectfully request that this Court deny the

petition for a writ of certiorari seeking review of the Second

Circuit’s opinion below. That unpublished opinion is at 1998

U.S. App. LEXIS 31460 (2d Cir. Dec. 15, 1998) and is reprinted

in the petition for certiorari at Appendix A. Petitioner, Michael

Diederich, grossly distorted the facts relevant to the powers,

responsibilities and status of assistant county attorneys in

Rockland County in his petition because as detailed below, Mr.

Diederich held a confidential, policy making position.

Accordingly, party affiliation was an appropriate requirement

for effective performance of his job.

This action arises from precisely the same facts that gave

rise to the Second Circuit’s opinion in Gordon vy. County of

Rockland, 110 F.3d 886 (2d Cir.), cert. denied, _ U.S. cee PD

S. Ct. 74 (1997). The primary issue here, as in Gordon, is whether

applying this Court’s rulings in Elrod v. Burns, 427 U.S. 347

(1976) and its progeny, a confidential, policy making assistant

county attorney is protected by the First Amendment from a

politically-motivated dismissal. The answer of ail the circuit

courts that have directly addressed this issue is an unequivocal

“no.”

There is no cause for this Court’s review of the conclusion

below that Mr. Diederich was not entitled to First Amendment

protection from dismissal.

STATEMENT OF THE CASE

In June 1992 Mr. Diederich was hired by Rockland County

on a part-time basis as an environmental lawyer, with the title

of Assistant County Attorney. (JA 21).' By statute, Mr. Diederich

1. Because the appendix submitted by Mr. Diederich does not fully

recite the factual record, citations to “JA __” refer to the more complete

Joint Appendix submitted to the Second Circuit.

2

employment was at the pleasure of the County Attorney and

revocable at any time. N.Y. County Law § 502 (McKinney 1991

& Supp. 1998) (“[a]ny such appointment may be revoked by

the county attorney at any time’’). Moreover, for purposes of

financial disclosure, as an assistant county attorney, Mr.

Diederich was designated as a “policymaker” by the Rockland

County Legislature. See Laws of Rockland County, Code of

Ethics, § 66.11.1, Schedule A(D)(2) (1992).

According to the job description current at the time of Mr.

Diederich’s hiring, the duties and responsibilities of a Rockland

Assistant County Attorney included:

DISTINGUISHING FEATURES OF THE

CLASS:

This is professional legal work of a complex legal

nature involving the responsibility for representing

the County in court cases and in the performance of

other legal work. General supervision is received

from the County Attorney. Does related work as

required.

TYPICAL WORK ACTIVITIES:

Researches the law and renders opinions to the

County Legislature and department heads as directed

by the County Attorney;

Prepares pleadings, appeals, resolutions, notices,

contracts and other legal papers and documents;

Examines legal papers served on or filed with County

departments; Appears in Court or at hearings to

represent the County.

OO

3

FULL PERFORMANCE KNOWLEDGE,

SKILLS, ABILITIES AND PERSONAL

CHARACTERISTICS:

Good knowledge of the principles and practices of

law, particularly as concerned with the organization

and operation of County departments and agencies;

ability to express arguments of the law by written

and spoken words; ability to deal effectively with

people; physical condition commensurate with the

demands of the position.

MINIMUM QUALIFICATIONS:

Possession of a license to practice law in the State of

New<Y ork.

(JA 49).

Consistent with this job description, in early 1994, Mr.

Diederich prepared a summary of his duties and responsibilities

which, in pertinent part, states:

... | have been involved in a wide variety of other

environmental law matters as the need has arisen.

For example, I filed a NEPA lawsuit on the County’s

behalf in County of Rockland et al. v. U.S. Army

Corps of Engineers (U.S. District Court, $.D.N.Y.

1993), and have defended the County and its

employees in various DEC proceedings. I have also

been advising on all aspects of the Court Facilities

project, including SEQR. I continue to work closely

with the Rockland County Environment

Management Council (I was an EMC chairman in

the early 1980s).

Committee, etc., meetings

Solid Waste Management Department — I meet on

a regular and ongoing basis with the head of this

department.

Solid Waste Management Department, Executive

Work Staff — Monthly meetings, an as otherwise

scheduled.

Legislative Solid Waste Management Committee —

I serve as this committee’s counsel.

Legislative Court Facilities Committee — I have

been serving as this committee’s legal advisor,

pending the assignment of another attorney. My

initial involvement was on SEQR issues, which

involvement I expect should continue.

Legislative Water Quality Committee — I have been

serving as counsel to this committee.

Emergency Planning — I have been involved on an

“as needed” basis, for example, on Indian Point drills.

Environmental Management Council — I work

closely with the EMC, and often attend their

meetings.

(JA 47-48).

Assistant county attorneys in Rockland County are under

the supervision of the County Attorney, who is appointed by

5

the elected County Executive. See Gordon, 110 F.3d at 891. In

November 1993 a Republican was elected as Rockland’s County

Executive and appointed a Republican, as County Attorney.

(JA 22). In March 1994, the County Attorney terminated the

employment of Mr. Diederich, a registered Democrat as well as

the employment of the plaintiffs in Gordon, all of whom were

registered Democrats. Gordon, 110 F.3d at 887. Mr. Diederich’s

job description, title, and status are identical to those of the

Gordon plaintiffs. Mr. Diederich here and each of the part-time

assistants in Gordon, however, had distinct areas of responsibility

and specialization. See Gordon, 110 F.3d at 888.

On the basis of the incidents described above, the Gordon

former assistant county attorneys brought suit alleging that their

dismissal was politically motivated and violated the First

Amendment. Gordon, 110 F.3d at 887. In Gordon, following

the reasoning of the Supreme Court in Branti v. Finkel, 445

U.S. 507 (1980), the Second Circuit held that “rendering legal

opinions, drafting ordinances, [and] negotiating contracts —

define a position for which party affiliation is an appropriate

requirement,” Gordon, 110 F.3d at 891 (quoting Ness vy.

Marshall, 660 F.2d 517, 521-22 (3d Cir. 1981)), and held that

“the Assistant Rockland County Attorneys are. . . exempt from

First Amendment protection against politically motivated

dismissal.” Gordon, 110 F.3d at 892. This Court denied the

Gordon plaintiffs’ petition for certiorari.

Mr. Diederich served his action after the Second Circuit

ruled in Gordon. In his amended complaint Mr. Diederich

asserted that his First and Fourteenth Amendment rights were

violated when he was terminated from the County’s employ.

(JA 24, 27). He also asserted that the County’s decision to

terminate some part-time, but no full-time, assistant county

attorneys violated his right to “equal protection.” (JA 27-28). In-

6

addition, Mr. Diederich alleged that the County’s supposed

failure to pay him certain benefits constituted an unconstitutional

taking within the meaning of the Fifth Amendment. (JA 29-30).

Mr. Diederich further alleged that dishonesty of elected officials

regarding the reasons for his termination “harms democracy and

the Republican form of government” and that taxpayers suffered

financially due to this deception. (JA 31). Finally, Mr. Diederich

alleged that taxpayers suffered because the County failed to meet

obligations established in its Solid Waste Management Plan

which Mr. Diederich claimed he prepared. (JA 33).

On April 3, 1998 the district court granted respondents’

motion to dismiss and denied Mr. Diederich’s cross-motion for

summary judgment as well as his motion for leave to file a

supplemental complaint. Diederich v. County of Rockland, 999

F. Supp. 568 (S.D.N.Y.), aff'd, 166 F.3d 1200 (2d Cir. 1998).

In addition, the district court denied respondents’ motion for

sanctions, but noted that Mr. Diederich’s action “approaches

the boundaries of sanctionable conduct. . . .” Jd. at 574.

On December 15, 1998, the Second Circuit affirmed the

dismissal of Mr. Diederich’s claims stating that they “involve[ |

precisely the same factual and legal arguments that we recently

rejected in Gordon v. County of Rockland.” (App. 2a).’

Accordingly, Mr. Diederich’s First Amendment claim was

rejected “for substantially the reasons stated in Gordon.” (/d.)

The certiorari petition filed by Mr. Diederich is almost

identical to the unsuccessful petition in Gordon.

2. Citations to “App __” refer to the appendix submitted by Mr.

Diederich.

7

REASONS FOR DENYING THE WRIT

I.

THE SECOND CIRCUIT’S DECISION DOES NOT

RAISE AN IMPORTANT ISSUE THAT CALLS FOR

THIS COURT’S REVIEW

A. The Circuits Agree That Similarly Situated Attorneys

Do Not Enjoy First Amendment Protection

AN

The precedents upon which the decision below turns are

well-settled. In Elrod, this Court carved an exception to the

general rule that patronage dismissals violate the First

Amendment and exempted employees in policy making

positions and those privy to confidential matters from First

Amendment protection. 427 U.S. at 367. In Branti, this Court

refined the standard in Elrod:

[T]he ultimate inquiry is ... whether the hiring

authority can demonstrate that party affiliation is an

appropriate requirement for the effective

performance of the public office involved.

Branti, 445 U.S. at 518. (hereinafter the “Branti standard”). In

deciding that assistant public defenders enjoyed protection from

patronage dismissals, this Court specifically contrasted the

broader public responsibilities of prosecutors. Branti, 445 U.S.

at 519 n.13.

Though circuit courts have sometimes wrestled with the

application of the Branti standard, the courts recognize “[t]his

difficulty ‘is the natural result of the myriad of governmental

bodies, departments, and positions, and the varying

responsibilities of pubiic employees.’ ” Waskovich v. Morgano,

8

~

2 F.3d 1292, 1297 (3d Cir. 1993), quoting Pounds v.

Griepenstroh, 970 F.2d 338, 341 (7th Cir. 1992), cert. denied,

507 U.S. 910 (1993). With respect to attomey positions, however,

the circuit courts are uniform in holding that government

attorneys are not protected against politically motivated

discharges. See Fazio v. City And County of San Francisco, 125

F.3d 1328 (9th Cir. 1997), cert. denied, U.S.__, 118 S. Ct.

1517 (1998); Americanos v. Carter, 74 F.3d 138 (7th Cir.), cert.

denied, 517 U.S. 1222 (1996); Monks v. Merlinga, 923 F.2d

423 (6th Cir. 1991); Williams v. City of River Rouge, 909 F.2d

151 (6th Cir. 1990); Clark v. Brown, 861 F.2d 66 (4th Cir. 1988);

Bauer v. Bosley, 802 F.2d 1058 (8th Cir. 1986), cert. denied,

481 U.S. 1038 (1987); Livas v. Petka, 711 F.2d 798 (7th Cir.

1983); Mummau v. Ranck, 531 F. Supp. 402 (E.D. Pa), aff'd per

curiam, 687 F.2d 9 (3d Cir. 1982); Ness, 660 F.2d at 522.

This Court should not and need not review each of the

decisions that comprise the progeny of Elrod and Branti as Mr.

Diederich suggests because when it comes to government

attorneys — who interact with elected officials, represent

governmental agencies in important matters and render opinions

to County Legislatures — the circuit courts have had no difficulty

reaching the conclusion that the First Amendment does not

prevent their discharge. Thus, there is no open or important issue

to review as evidenced by this Court’s denial of certiorari in

Gordon. :

B. The Second Circuit’s Ruling Is Consistent With Branti

Mr. Diederich repeatedly takes issue with what he describes

as the Second Circuit’s “ ‘shared ideology’ approach to

patronage discharge cases,” which “dispens[es] with this Court’s

teachings that political discharge requires that political affiliation

be necessary for effective job performance.” (Petition at 8-15)

(characterizing the Second Circuit’s analysis as “novel”).

9

The opinion below, however, does not mention this “shared

ideology” approach. As it has done in several prior cases, the

Second Circuit here applied the eight factors identified in Vezzetti

v. Pellegrini, 22 F.3d 483 (2d Cir. 1994), to determine that the

First Amendment did not protect from a government attorney

discharge. In both this case and in Gordon, the teachings of

Branti were closely followed. Indeed, Gordon explicitly

recognized that Branti requires a court to focus on whether “party

affiliation is an appropriate requirement for effective job

performance.” 110 F.3d at 887 (quoting Branti). Gordon also

recognized that the Branti standard is satisfied “when there is a

rational connection between shared ideology and job

performance.” Gordon, 110 F.3d at 889. The analysis applied

to this case is consistent with this rule and Mr. Diederich never

explains how or why the ruling below is inconsistent with Branti.

In fact, the Second Circuit’s decision here follows Branti's

dictates that “if an employee’s private political beliefs would

interfere with the discharge of his public duties, his First

Amendment rights may be required to yield ... ,” and that a

high-ranking government official “may appropriately believe

that the official duties of various assistants ... cannot be

performed effectively unless those persons share his political

beliefs and party commitments.” Branti, 445 U.S. at 517-518

(emphasis added).

When faced with a Branti issue,

a court’s function . . . is to do what courts are often

called upon to do — to weigh all relevant factors

and make a common sense judgment in light of the

fundamental purpose to be served.

Jiminez Fuentes v. Torres Gaztambide, 807 F.2d 236, 242 (1st

Cir. 1986), cert. denied, 481 U.S. 1014 (1987). This is exactly

what the Second Circuit did here. Because the decision below

10

in no way conflicts with Branti or any of the other relevant

decisions of this Court, there is no basis for review.

C. The Second Circuit Correctly Analyzed Mr. Diederich’s

Duties In Applying The Branti Standard

Mr. Diederich argues that review should be granted because

the Second Circuit only examined the inherent or “paper” duties

of his position and that this analysis violated this Court’s ruling

in Branti as well as conflicts with the decisions of other circuits.

(Petition at 16). This claim, which also was raised by the Gordon

plaintiffs, is based on a misreading of Branti and a

mischaracterization of the lower court’s analysis in this case.

Here, the district court examined more than just the written

Assistant County Attorney job description because it specifically

noted that it considered “the Retainer Agreement signed by [Mr.

Diederich] describing [his] duties.” (App. 4 n.1). Not only is

Mr. Diederich wrong with respect to the factual underpinnings

of the decision below. but his legal argument for review is

erroneous — there is no intra-circuit conflict. In Branti, this

Court, “having [ ] framed the issue” around the duties entailed

in the particular position at issue, proceeded to analyze the

“responsibilities” of the attorney position. Branti, 445 U.S. at

1295. The cases relied on by Mr. Diederich (Petition at 16-17)

demonstrate that courts interpret Branti to require that in the

context of the relevant facts of each case, the powers inherent in

the position and the duties actually performed be considered.

See Peters v. Delaware River Port Auth. of Penn. and N.J., 16

F.3d 1346, 1353 (3d Cir.) (noting that analysis implicates

“function[s] of the public office” as well as “actual duties

performed”), cert. denied, 513 U.S. 811 (1994); Waskovich, 2

F.3d at 1297 (examined functions performed as well as inherent

functions).

11

In certain cases — like this one — courts need look no

further than the inherent duties of the position to apply the Branti

standard. See, e.g., Peters, 16 F.3d at 1353. Here, Mr. Diederich’s

self-described actual duties were, if anything, narrower than those

inherent in the position. Therefore, the Second Circuit’s reliance

on his job description was justified. (JA 64-65).

The analysis employed in Peters, a case trumpeted by Mr.

Diederich as being in conflict with this case, is consistent with

the Second Circuit application of the Branti standard. In Peters

the Third Circuit recognized that the functions of the public office

in question controls, not the actual past duties of the particular

employee. See Peters, 16 F.3d at 1353. The Peters court further

explained that

the actual past duties of the discharged employee are

irrelevant if the position inherently encompasses

more expansive powers and more important

functions that would tend to make political affiliation

an appropriate requirement for effective

performance.

Peters, 16 F.3d at 1353, quoting O’Connor v. Steeves, 994 F.2d

905, 911 (1st Cir.), cert. denied sub nom., Town of Nahant, Mass

v. O'Connor, 510 U.S. 1024 (1993) (emphasis added). The other

Third Circuit case cited by Mr. Diederich, Waskovich, 2 F.3d at

1297-98, reached the same conclusion and more recent Third

Circuit cases confirm this view, see Wetzel v. Tucker, 139 F.3d

380, 384 (3d Cir. 1998) (the inquiry “is focused on the function

of the public office in question and not the actual past duties of

the particular employee involved”).

The analysis employed by the Second Circuit in this case

also is consistent with the Eleventh Circuit’s analysis in Parrish

12

v. Nikolits, 86 F.3d 1088 (11th Cir. 1996), cert. denied, 520

U.S. 1228 (1997). Parrish stands for nothing more than the

unremarkable proposition that “inherent powers and actual job

responsibilities . . . should be part of the analysis,” Parrish, 86

F.3d at 1093, and Mr. Diederich’s assertion (Petition at 17) that

Parrish “pointedly rejected the Second Circuit’s narrow

approach” is simply not true. When appropriate, the Eleventh

Circuit only has looked to an individual’s job description to

determine whether First Amendment protection from a politically

motivated dismissal exists. See Gordan v. Cochran, 116 F.3d

1438 (11th Cir. 1997).

D. There Is No Conflict Between The Second Circuit And

The Other Circuits As To Whether The Application of

The Branti Standard Is A Question Of Law Or Fact

Mr. Diederich maintains that this Court should grant his

petition to settle an intra-circuit conflict as to whether the Branti

standard is a question of law or one of fact. An analysis of the

cases reveals that this argument, like the others Mr. Diederich

advances, is meritless.

In Branti, this Court instructed that the ultimate issue in a

political termination case is whether, taking into account the

specific facts of the particular situation, party affiliation is an

appropriate requirement for the effective performance of the

position involved. Branti, 445 U.S. at 518. The circuit courts,

including the court below, consistently have viewed this question

as “one in which a mixture of historical facts to be determined

by the trier of fact and a test of constitutional law is involved.”

Horton v. Taylor, 767 F.2d 471, 478 (8th Cir. 1985); see also

Mumford v. Basinski, 105 F.3d 264, 270 (6th Cir.), cert. denied,

118 S. Ct. 298 (1997) (finding as matter of law that position

was “not protected by the First Amendment”). In other words,

rsa s

13

in certain cases both questions of fact and law will exist — the

nature of the job at issue may involve issues of fact — but the

ultimate constitutional question is one of law. Mr. Diederich

fails to see this important distinction.

The Second Circuit’s decision below falls in line with the

other appellate courts that have addressed this issue and have

held that patronage dismissal of similar government attorneys,

other than assistant public defenders, did not violate the First

Amendment. See, e.g., Bauer, 802 F.2d at 1062 (staff legal

assistant in Office of Clerk of Circuit Court); Brown v. Trench,

787 F.2d 167, 169-70 (3d Cir. 1986), aff'd, 829 F.2d 30 (1987)

(city solicitor and assistant district attorney); Livas, 711 F.2d at

800-01 (public prosecutor); Ness, 660 F.2d at 522 (city solicitor

and assistant solicitor); Mummau, 531 F. Supp. at 404-05

(assistant district attorney).

The district court in Gordon submitted two issues to the

jury: (1) whether the assistant county attorneys were terminated

for political reasons; and (2) whether those terminations were

constitutional violations. The Second Circuit held that this

second issue, the constitutional question, based on certain

undisputed facts, was a question of law. Therefore, it properly

found that the district court erred in submitting the question to

the jury. Gordon, 110 F.3d at 887. The Second Circuit in this

case correctly stated that Mr. Diederich’s claim “involves

precisely the same factual and legal arguments that we recently

rejected in Gordon.” (App. 1a).? Accordingly, the court below

was entirely justified in concluding that the reasoning of the

Gordon case applied with equal force to Mr. Diederich’s claims.

3. Significantly, Mr. Diederich does not dispute that the facts of

this case and Gordon are indistinguishable. Moreover, he affirmatively

seeks to rely on testimony elicited in Gordon in support of his petition

to this Court. (Petition at 4-6).

14

Mr. Diederich claims that the question of whether a

termination violates the First Amendment always must be a

question of fact. Merely restating this argument demonstrates

its fatal flaw. When dealing with government attorneys, the

nature of the position can present questions of law. For example,

in Bauer v. Bosley the Eighth Circuit found that the nature of

the position at issue was clear from the record and that, therefore,

it was unnecessary and error for the district court to submit the

question to the jury. Bauer, 802 F.2d at 1062. Conversely, in

Soderbeck v. Burneit County, the Seventh Circuit found that the

question regarding the nature of a position within a sheriff's

office was sufficiently uncertain as to render it a question of

fact for the jury. Soderbeck v. Burnett County, 752 F.2d 285,

288 (7th Cir.), cert. denied, 471 U.S. 1117 (1985). In Delong v.

United States, 621 F.2d 618, 623 (4th Cir. 1980), the Fourth

Circuit employed the same analysis and found that the issue

“may be resolved as one of law or fact depending upon the

evidence adduced” and remanded the case for reconsideration

in light of this Court’s ruling in Branti.

Put simply, Mr. Diederich “confuses the idea of an issue of

fact with that of a fact-specific inquiry.” Gordon, 110 F.3d at

889 n.3 (emphasis in original). There is no intra-circuit conflict

that necessitates review of this question because Mr. Diederich

admits that “the material facts are undisputed here.” (Petition

at 3). Clearly, the Second Circuit was correct in determining

that, based on undisputed facts, Mr. Diederich was not entitled

to protection from politically based dismissal.

E. The Decision Below Is Not “Sweeping” And Does Not

Create An Inappropriate Per Se Rule

Mr. Diederich completely mischaracterizes the ruling below

by stating that it creates a “categorical rule of exclusion” whereby

15

all public attorneys are per se foreclosed from First Amendment

protection. (Petition at 18-19).

The Second Circuit did not create a per se rule in its decision.

To the contrary, the Second Circuit specifically noted that Mr.

Diederich’s civil service status was only “one factor to be

considered in determining whether a public employee is

protected by the First Amendment from a political dismissal.”

(App. 2a). Citing to Vezzetti, 22 F.3d at 486, the court below

stated that “no one factor is dispositive,” and that the Vezzitti

factors “should not be mechanically applied, nor should they

begin or end the analysis.”

Nor did Gordon create any per se rule. Applying the Branti

standard, the Gordon Court looked to the nature of the Mr.

Diederichs’ jobs as well as the duties they performed and found

that these positions were ones where party affiliation was an

appropriate requirement for job performance. Gordon, 110 F.3d

at 892. The duties performed by Mr. Diederich and the Gordon

plaintiffs —- being privy to confidential information held by

elected officials implementing government policy, litigating on

the County’s behalf and representing the County in legislative

committees — can hardly be characterized as “ministerial

functions” and other courts similarly have looked to these factors

to decide that a position was not entitled to Branti protection.

See, e.g., Williams, 909 F.2d at 154 (city attorney not protected

under Branti because position entailed defending city against

suits concerning policy disputes and negotiating for city in

contract disputes); Jiminez Fuentes, 807-F.2d at 243-44

(Regional Directors of Urban Housing and Development

Corporation not protected under Branti because such

“confidential” employees participate in policy formation); Bauer,

802 F.2d at 1062 (staff legal assistant to circuit court clerk not

protected under Branti because position entailed representing

16

circuit clerk in contract negotiations and judicial/administrative

proceedings); Ness, 660 F.2d at 521-22 (city solicitor and

assistant city solicitor not protected under Branti because

positions entailed providing legal advice to mayor to implement

policy).

In an attempt to create an intra-circuit conflict where none

exists, Mr. Diederich also incorrectly states that the Eleventh

Circuit, in Cutcliffe v. Cochran, 117 F.3d 1353 (11th Cir. 1997),

cert. denied sub nom., Cutcliffe v. Jenne, 118 S. Ct. 1795 (1998)

determined that assistant United States attorneys are protected

against patronage discharges and that this decision “undoubtedly

encompasses assistant county attorneys.” (Petition at 19). In fact,

the Cutcliffe Court upheld the politically-based dismissal of

deputy sheriffs. In a footnote, the Eleventh Circuit, however,

cited to Justice Powell’s dissent in Branti and stated in dicta

that “we believe Branti would not permit the dismissal of all

Assistant U.S. Attorneys for patronage reasons.” Cutcliffe, 117

F.3d at 1357-58 n.4.

First, even if this dicta is considered, the Eleventh Circuit

has acknowledged that each case must be decided on its own

merits, id. at 1358, which is consistent with what was done in

this case. Second, the dissenting opinion in Cutcliffe cogently

noted that the remark about assistant United States attorneys

(not county attorneys such as Mr. Diederich), was inappropriate:

It puzzles me as to how the majority in this case can

take Justice Powell’s comments in a dissent in a case

involving Assistant Public Defenders, bring them

into this case — which involves county Deputy

Sheriffs — and volunteer dicta as to what may or

may not be done with respect to the employment of

Assistant United States Attorneys.

17

Cutcliffe, 117 F.3d at 1360 n.3 (Kravitch, J. dissenting). Third,

in circumstances analogous to this case, the Eleventh Circuit

has recognized that the First Amendment does not protect all

governmental attorneys from dismissal. See Shahar v. Bowers,

114 F.3d 1097, 1104 (11th Cir. 1997), cert. denied, 118

S. Ct. 693 (1998) (“we know of no federal appellate decision in

which a subordinate prosecutor, state attorney or like lawyer

has prevailed in keeping his job over the chief lawy ’s

objection.”’).

The rgsult in this case turned on the application of settled

legal standards to facts which Mr. Diederich, could not

legitimately dispute. There is no conflict between circuits and

disingenuously mischaracterizing this fact-bound conclusion as

a “per se” ruling does not entitle Mr. Diederich to review in this

Court.

F. The Second Circuit’s Opinion Does Not Conflict With

This Court’s “Free Speech” Decisions

Mr. Diederich contends that this Court should review the

decision below because the Second Circuit’s application of

Branti allegedly chills free speech and creates a conflict with

this Court’s decisions in Pickering v. Board of Education, 391

U.S. 563 (1968); and Connick v. Myers, 461 U.S. 138 (1983).

This is not a case involving a dismissal based on the exercise

of the right of free speech. If such a claim had been brought, the

lower courts would have applied the balancing test set forth in

Pickering and Connick and determined whether the dismissal

was proper. Neither Pickering nor Connick determined whether

governmental attorneys are policymakers and in Connick this

Court determined that the dismissal of an assistant district

attorney did not offend the First Amendment. Moreover, contrary

18

to Mr. Diederich’s assertion (Petition at 19), this case does not

conflict with the Ninth Circuit’s rulings in Finkelstein v. Bergna,

881 F.2d 702 (9th Cir. 1989), cert. denied, 502 U.S. 818 (1991)

and Johnston v. Koppes, 850 F.2d 594 (9th Cir. 1988). Both of

these cases involve free speech claims — not questions of E/rod/

Branti protection. In addition, the Ninth Circuit has ruled that

governmental attorneys similarly situated to Mr. Diederich enjoy

no protection under Branti. Fazio, 125 F.3d at 1332.

The protections guaranteed by this Court’s free speech cases

are not in any way affected by the application of the Branti

standard to an entirely different situation — dismissal based on

political affiliation. Any implication that a public employee has

no free speech protection because of the Second Circuit’s Branti

analysis rulings in this case simply ignores those opinions.

Il.

MR. DIEDERICH MISSTATES NEW YORK LAW

WHEN HE ASSERTS THAT HE WAS PROTECTED

FROM POLITICALLY MOTIVATED DISCHARGE

Mr. Diederich claims that, as an employee classified as “non-

competitive” pursuant to section 42 of New York State’s Civil

Service Law, he is protected from politically-motivated discharge

and that principles of federalism therefore mandate that this Court

similarly protect him. This claim is demonstrably incorrect. Thus,

it is not surprising that in making this argument, Mr. Diederich

wholly fails to discuss the applicable New York statute that

provides protection from patronage dismissals for only certain

employees or any of the cases interpreting this statute.

New York’s statutory protection from political discharge is

set forth in section 107 of the Civil Service Law which states in

relevant part:

19

. .. NO appointment or selection to or removal from

an office or employment within the scope of this

chapter or the rules established thereunder, siall be

in any manner affected or influenced by such

[political] opinions or affiliations.

N.Y. Civil Service Law § 107 (McKinney 1983 & Supp. 1998)

(emphasis added). In construing the scope of the nearly

identically-worded predecessor statute, courts focused on the

underscored language, which refers to other statutory sections

of New York’s Civil Service Law and the rules promulgated

thereunder. This is because otherwise,

the section, literally construed, would apply to

positions in the unclassified service and would direct

that the appointments of heads of departments should

not be influenced or affected by their political

opinions or affiliations. Manifestly, such a

construction was not intended and has never been

adopted.

People v. Prendergast, 148 A.D. 129, 133, 132 N.Y.S. 115, 118

(1st Dep’t 1911). Accordingly, the Prendergast Court held that

public employees classified as “exempt” were not protected by

section 107 of New York’s Civil Service Law from politically

based dismissals.

Courts that have specifically examined whether “non-

competitive” employees are similarly excluded from the scope

of section 107’s protection have, without exception, determined

that such classified employees are subject to dismissal for

political reasons. Indeed, the New York Court of Appeals

expressly has held,

20

[t]he courts have definitely decided that section 25

[now § 107] does not apply to the exempt class. The

same reasoning requires a holding that it does not

apply to the noncompetitive class.

Merriweather v. Roberts, 268 N.Y. 12, 20, 196 N.E. 621, 624-

25 (1935). See Deth v. Castimore, 245 A.D. 156, 157-58, 281

N.Y.S. 114, 117 (4th Dep’t 1935) (“section 25 [now § 107] of

the Civil Service Law does not apply to one holding an

appointment to a position in the noncompetitive class’);

O'Connell v. Gorski, 715 F. Supp. 1201, 1204-5 (W.D.N.Y.

1989) (dismissal of an assistant county attorney classified as

non-competitive upheld in part because Court gave “substantial

deference to such classification.’’)

Not coincidentally, Mr. Diederich fails to cite a single case

in which the protection afforded by section 107 was held to

apply to a public employee classified as non-competitive. Most

of the cases cited by Mr. Diederich do not even involve the

dismissal of employees for political reasons. See Ottinger v. Civil

Service Commission, 240 N.Y. 435, 148 N.E. 627 (1925)

(involving the constitutionality of statute permitting the

appointment of deputies without civil service examination);

Voorhis v. Warwick Valley Central School District, 92 A.D.2d

571, 459 N.Y.S.2d 325 (2d Dep’t 1983) (holding that

“noncompetitive” employee had no protectable property interest

in position and was not protected from discharge by Civil Service

Law § 75). The other case relied on by Mr. Diederich, Largo v.

Vacco, 977 F. Supp. 268, 272-3 (S.D.N.Y. 1997), dealt with an

employee in the exempt class and in no way addressed whether

an employee classified as non-competitive was entitled to

protection from discharge based on political affiliation.

In the district court, Mr. Diederich expressly recognized

that being classified as non-competitive did not protect him from

21

a politically motivated discharge. (JA 66, 4 27 (“the part-time

assistant county attorneys felt that their positions were likely

targets for the grant of Republican patronage, since these had

the civil service status of ‘noncompetitive’ (exempt from civil

service protection”)). Thus, in the courts below, Mr. Diederich

admitted that the factual premise underlying his argument to

this Court is not true. Given his admission and the “substantial

deference” Mr. Diederich contends must be paid to the state’s

statutory scheme (Petition at 11) the correctness of the Second

Circuit’s ruling should be obvious.

Mr. Diederich’s contention that the Second Circuit’s alleged

failure to respect New York law regarding the protection of

employees from politically motivated discharge “imperils

federalism” (Petition at 10) is logically inconsistent and

irreconcilable with other of his arguments. On one hand Mr.

Diederich claims that the Second Circuit impermissibly adapted

a per se rule that government lawyers do not have First

Amendment protection and argues that the teachings of Elrod

and Branti mandate that each case be decided on its own merits.

(Petition at 19). On the other hand, Mr. Diederich specifically

asks this Court to adopt a per se rule — that if an employee is

protected by a state’s civil service law, then the employee must

enjoy First Amendment protection from dismissal.

Branti itself demonstrates the frivolity of Mr. Diederich’s

per se civil service rule because in Branti, as Mr. Diederich

admits, the plaintiff assistant public defender was an employee

exempt from civil service protection under New York law.

(Petition at 10). If Mr. Diederich’s conception of federalism is

accepted — and this Court, therefore, is bound to follow the

judgment of New York’s legislators — this Court could not have

found the Branti plaintiffs’ First Amendment rights to have been

22

violated. Accordingly, there is no applicable principle of

federalism that requires this Court to review the decision below.*

III.

MR. DIEDERICH’S OTHER POINTS PROVIDE NO

REASON TO REVIEW THIS CASE

A. Mr. Diederich’s Section 1983 Claim Is Meritless

Mr. Diederich seeks review because he believes the lower

courts’ dismissal of his claim that respondents unconstitutionally

took $8,000 of his accrued benefits was incorrect. (Petition at

20). Mr. Diederich fails to explain, however, why he believes

the manner in which lower courts allegedly erred merits review

by this Court.

As the district court explained, Mr. Diederich failed to show

that he had a property interest in his accrued benefits and his

unlawful takings claim was merely based upon his assertion that

respondents breached his contract. (App. 8a). Without a

constitutionally protectable property interest, Mr. Diederich

cannot prevail on this claim or obtain review of his petition by

this Court.

4. Circuit courts uniformly hold that E/rod and Branti require a

case by case determination and that no one factor, such as a civil service

classification, is determinative. See, e.g., Vezzetti, 22 F.3d at 486;

Williams, 909 F.2d at 153 (the Supreme Court “left it to subsequent

courts to determine, on a case-by-case basis, whether political affiliation

is an ‘appropriate requirement for the effective performance of the public

office’ ”); Jiminez Fuentes, 807 F.2d at 242 (“a court’s function . . . is

to do what courts are often called upon to do — to weigh all relevant

factors and make a common sense judgment in light of the fundamental

purpose to be served”).

23

The cases Mr. Diederich cites do not help his cause. For

example, this Court extended First Amendment protection to

dismissals of independent contractors based on political

affiliation in O'Hare Truck Service, Inc. v. City of Northlake,

518 U.S. 712 (1996). O’Hare has nothing to do with an

unconstitutional taking of property like that alleged by

Mr. Diederich. Moreover, the O'Hare Court recognized that the

independent contractor could be dismissed if the Branti standard

was Satisfied. O'Hare, 1168S. Ct. at 2361. Here, as demonstrated

above, Branti permits the dismissal of assistant county attorneys

based upon political affiliation.

B. Testimony From The Gordon Trial Is Irrelevant

Mr. Diederich attempts to take respondents’ position at the

Gordon trial — that the assistant county attorneys were not fired

for political reasons — and use it to demonstrate that the Second

Circuit erred when it decided that political affiliation was an

requirement for the performance of Mr. Diederich’s duties.

(Petition at 12-15). In support of this illogical argument, Mr.

Diederich cites to Gordon trial testimony and a hearsay statement

(Petition at 5), both of which are taken out of context.

Mr. Diederich’s argument demonstrates a fundamental

misunderstanding of what the Second Circuit decided in Gordon

as well as in this case. In Gordon, the jury had determined that

the plaintiffs were fired due to their political affiliation. This

finding was not contested on appeal. Gordon, 110 F.3d at 887.

The Second Circuit held that such politically based dismissals

did not violate the Constitution. Whether the Gordon defendants

denied that the dismissals were based on political considerations

was irrelevant to the Second Circuit’s Gordon decision, and it

is irrelevant here.

24

The lower courts here —- for the purposes of a motion to

dismiss — assumed that Mr. Diederich was fired for political

reasons. The question next addressed was whether such dismissal

was constitutionally permissible. That respondents could contend

that Mr. Diederich was actually fired for another reason —

because he was incompetent, for example — had no bearing on

the only question before the lower courts — assuming the

dismissal was politically motivated, did it violate Mr. Diederich’s

constitutional rights? Mr. Diederich’s argument does not make

sense, and certainly provides to reason for the Court to review

this case.

C. Attorneys’ Ethical Obligations Are Irrelevant

Mr. Diederich argues that a lawyer’s obligation to maintain

integrity, exercise independent professional judgment, represent

a client completely and avoid even the appearance of impropriety

mandate that attorneys be granted constitutional protection from

politically based dismissal. (Petition at 20-22). Again, as with

other arguments, Mr. Diederich never explains why being subject

to dismissal based on political affiliation imperils these ethical

directives and justifies this Court’s review of his petition. Clearly,

for an attorney such as Mr. Diederich who represented the

County before the legislature and department heads and

consulted with policy-making boards, it is “difficult to fathom

how such responsibilities can be undertaken . . . without political

and social philosophy [making] a difference in the

implementation of programs” (App. 5a) (quoting Gordon). This

does not mean, however, that Mr. Diederich is committing ethical

violations by fulfilling these duties.

If Mr. Diederich’s argument were accepted, then no attorney

could be terminated based on political affiliation. Such a result

is completely inconsistent with this Court’s prior decisions as

25

well as the nine circuit courts that have upheld government

attorney termination claims.

D. The Guarantee Clause of the Constitution Is Irrelevant

Mr. Diederich asserts that his dismissal violates the

Constitution’s guarantee to the citizens of the United States of a

“republican form of government.” (Petition at 22). He contends

that the Second Circuit violated the Guarantee clause by refusing

to respect New York’s alleged statutory mandate that civil

servants be dismissed only “for cause.”

Such a claim cannot be considered by this Court. “A long

line of Supreme Court cases have constantly reaffirmed the

position that [the Guarantee] clause is nonjusticiable” 1 Ronald

Rotunda & John Nowak, Treatise on Constitutional Law, § 3.4

at 319 (2d ed. 1992 & Supp. 1999); see Baker v. Carr, 369 U.S.

126, 223-24 (1962). The cases that Mr. Diederich relies on are

ut to the contrary. See Kohler v. Tugwell, 292 F. Supp. 978,

982 (E.D. La. 1968) (refusing to hold that action is justiciable,

stating that “if the decision[ ] in . . . Baker v. Carr require[s]

reappraisal, it is not proper to do it here and now.”), aff'd, 393

U.S. 531 (1969); Reynolds v. Sims, 377 U.S. 533 (1964) (action

justiciable under the Equal Protection clause, not the Guarantee

clause). The cases cited by Mr. Diederich are also distinguishable

in that they involve state’s actions that allegedly misled voters.

See Kohler, 292 F. Supp. at 982; Burger v. Judge, 364 F. Supp.

504 (D. Mont.), aff'd, 414 U.S. 1058 (1973).

Here, Mr. Diederich alleges that the Second Circuit itself

violated the Guarantee clause when it decided that Mr. Diederich

enjoyed no constitutional protection, which somehow dismantled

“New York’s merit system of civil service.” (Petition at 22-23).

If this is not a Guarantee clause issue, then it is repetitious of

Mr. Diederich’s “federalism is imperiled” argument. (See

26

Petition at 12) (“The Court of Appeal’s antimajoritarian disregard

for New York’s merit system of public employment ... is

contrary to fundamental principles of federalism’’)).

In any event, as discussed above, New York law did not

protect Mr. Diederich from a politically-motivated dismissal.

Moreover, by deciding that Mr. Diederich does not enjoy

constitutional protection, the Second Circuit upheld the will of

the Rockland County electorate who had decided, through their

elected officials, that: (a) Mr. Diederich’s employment was at

the pleasure of the County Attorney and revocable at any time,

N.Y. County Law § 502 (McKinney 1991 & Supp. 1998); and

(b) for the purposes of financial disclosure, Mr. Diederich was

designated as a “policymaker”. See Laws of Rockland County,

Code of Ethics, § 66.11.1, Schedule A(D)(2) (1992).

Finally, Mr. Diederich’s Guarantee clause contentions bare

no resemblance to the allegations made in his complaint. As the

district court noted, Mr. Diederich asserted in this complaint

that “it directly harms democracy, and the republican form of

government . . . for public employment decisions to be made on

the basis of political patronage.” (App. Sa, n.3). Because political

affiliation was an acceptable basis for Mr. Diederich’s discharge,

the courts below correctly dismissed this cause of action. Put

simply, like all of his other arguments, Mr. Diederich’s

Guarantee clause claim does not present this Court with: (a) a

novel legal issue; (b) a conflict between circuits; (c) an important

legal question that has been decided in a way that conflicts with

this Court’s decisions; or (d) any other reason to grant review in

this case.

27

CONCLUSION

As Rule 10 of the Rules of this Court states “A petition for

a writ of certiorari is rarely granted when the asserted error

consists of erroneous factual findings or the misapplication of a

properly stated rule of law.” That is all, however, that Mr.

Diederich offers and it is clear from the facts and the law

discussed above that the Second Circuit’s ruling was correct.

Nor is the decision in conflict with any decision of this Court or

with any other circuit. Accordingly, no intercession by this Court

is necessary and the petition for certiorari should be denied.

Respectfully submitted,

Davip F. DoBsBiINs

Counsel of Record

JoHN D. WINTER

Davip G. JACOBY

PATTERSON, BELKNAP, WEBB

& TyLer LLP

Attorneys for Respondents

1133 Avenue of the Americas

New York, New York 10036-6710

(212) 336-2000