# Opposition Brief — Diederich v. County of Rockland

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1114

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1437%3A3. Public record. Not legal advice.