Furlong v. Gudknecht , 808 F.2d 233 ( 1986 )

OPINION OF THE COURT

MANSMANN, Circuit Judge.

The central issue we are asked to address in this political discharge case is whether the potential for statutory succession to an elected office by an appointed deputy with ministerial duties is sufficient to demonstrate that “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980). Holding that it was not, the district court granted a motion to enjoin preliminarily the defendant, Edward Gudknecht, the newly elected Republican Recorder of Deeds for the County of Bucks, from terminating the plaintiff, a Democrat, as Second Deputy to the Recorder of Deeds, a job he held for eight years. We find that, although the potential for succession is important in theory, political affiliation is inapposite to the duties of the elected office and the possibility of succession is so de minimis that the Branti burden of proof on the public employer has not been demonstrated. We will, therefore, affirm the district court's order.

I.

The plaintiff, James F. Furlong, is a registered Democrat. In January of 1978, the Democratic Recorder of Deeds for the County of Bucks, Lucille Trench, appointed Furlong to serve as Second Deputy Recorder of Deeds. Trench reappointed the plaintiff for Trench’s second four-year term in 1982.

In November of 1985, a Republican, defendant Edward Gudknecht, was elected Recorder of Deeds. Furlong had actively supported the defendant’s opponent, Democrat Janice DeVito, throughout her campaign. On January 3, 1986, Gudknecht informed Furlong that Gudknecht would terminate him on January 6, 1986, and would appoint Lillian Strawn, a Republican, as Second Deputy Recorder.

Furlong immediately filed a complaint alleging federal and state causes of action and seeking injunctive and monetary relief. The plaintiff simultaneously moved for a temporary restraining order and for a preliminary injunction to preclude Gudknecht from firing, or failing to retain, him in office.

Following a hearing, the district judge issued a bench opinion analyzing the evidence in light of the likelihood of the plaintiff's success on the merits, the potential for irreparable injury absent temporary relief, the possibility of harm to third parties, and the public interest. See Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-920 (3d Cir.1974). On January 15,1986, the district court entered an order granting Furlong’s motions for a temporary restraining order and for a preliminary injunction. This appeal followed. We possess jurisdiction to review the preliminary injunction pursuant to 28 U.S.C. § 1292(a)(1) (1982).

II.

The Supreme Court has twice proscribed dismissals of public employees solely for their political affiliation. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti, 445 U.S. 507, 100 S.Ct. 1287. Simultaneously, the Court has clarified that the First Amendment permits some patronage discharges.

Justice Stewart’s concurrence in Elrod distilled a single issue from the plurality’s opinion:

whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.

Elrod 427 U.S. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). The Court subsequently focused its holding in Branti.¹

In sum, the ultimate inquiry is not whether the label “policymaker” or “confidential” fits a particular position; rather, the question 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, 100 S.Ct. at 1295.

In a similar case also arising from Bucks County, Pennsylvania, Brown v. Trench, 787 F.2d 167 (3d Cir.1986), we observed that, despite Branti’s focus, the opinion failed to specify particular factors tending to answer its “ultimate inquiry.” Id. at 169.

After surveying several cases following Branti, however, we discerned the “key factor” to be “whether the employee has ‘meaningful input into decision making concerning the nature and scope of a major ... program.’ ” Id. at 169-170, quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1717, 72 L.Ed.2d 139 (1982). More recently, we have chosen to construe Branti narrowly. Horn v. Kean, 796 F.2d 668 (3d Cir.1986). Mindful of these standards, we turn to the defendant’s points of error.

III.

A.

The defendant argues that the district court erroneously found party affiliation irrelevant to the office of the Second Deputy Recorder of Deeds. On review of a district court’s grant of a preliminary injunction, “[u]nless that court abuses its discretion, commits an obvious error in applying the law, or makes a serious mistake in considering the proof, the appellate court must take the judgment of the trial court as presumptively correct.” Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 958 (3d Cir.1984). See National Land & Investment Co. v. Specter, 428 F.2d 91, 95 (3d Cir.1970).

We have reviewed the testimony relating to the duties of the deputy recorders and we cannot label “clearly erroneous” the district court’s factual view that the deputy recorders.occupy purely ministerial, if not clerical, positions. Cf. Rosenthal v. Rizzo, 555 F.2d 390, 393 & nn. 3, 5 (3d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977) (noting that the question of the plaintiff’s status as a policymaker vel non is one of fact). The record discloses that the deputies record documents, satisfy mortgages, and forward taxes.

Gudknecht, in fact, flatly admitted on questioning by Furlong’s counsel:

MR. SMOLOW: Mr. Gudknecht, is political party affiliation of the first or second deputy important with respect to the performance of their official duties?

MR. GUDKNECHT: No, it’s not.

Later, however, the following exchange occurred during Gudknecht’s direct examination by his counsel:

MR. KOOPMAN: On Friday, Mr. Smolow asked you whether you felt political affiliation was an appropriate criteria [sic] for the performance of the duties of Deputy Recorder of Deeds in supervising personnel in the office. And you answered that question, how?

MR. GUDKNECHT: No, I don’t think I understood the question at the time. MR. SMOLOW: I’m going to object. First of all, your Honor, that was not the question phrased. It was not qualified with respect to supervising personnel in the office.

THE COURT: The Court recalls the question, the Court recalls the answer, the Court recalls the new answer he’s giving after a weekend to think about it and talk to his attorney, however, I’ll permit the question and the answer, for whatever credibility it has.

The district court found ample reason to discredit the defendant’s later testimony and we will not disturb this finding.

B.

We turn now to the crux of the legal issue before us. We agree that the possibility that the plaintiff might ascend to the defendant’s elected office by virtue of Pa. Stat.Ann. tit. 16, §§ 1305, 1312 is a factor to be considered in determining whether the Branti criteria have been met. The defendant argues that since party affiliation was important to his election as Recorder, it a fortiori follows that party affiliation is necessary for any position which could possibly ascend to the Recorder position.

While not mandatory, § 1312 does give the Recorder the discretion to appoint a Second Deputy. Pa.Stat.Ann. tit. 16, § 1312 (Purdon 1956) provides:

The recorder of deeds may appoint a second deputy recorder of deeds, who shall possess and discharge all the rights, powers and duties of the principal deputy recorder of deeds during his necessary or temporary absence.

Notably, though, a Recorder must name a First Deputy:

The recorder of deeds shall appoint one first deputy to act in the case of the death or resignation of his principal, or when the office shall become vacant from other causes.

Pa.Stat.Ann. tit. 16, § 1305 (Purdon Supp. 1986).

The possibility emerges from §§ 1312 and 1305 that a Second Deputy might temporarily occupy the Recorder’s office during the absence of both the Recorder and the First Deputy. See Pa.Stat.Ann. tit. 16, § 408(a) (Purdon Supp.1986). The County Code, however, requires the Governor to select promptly a successor to the Recorder.²

We agree that the possibility that a Second Deputy would “possess and discharge all of the rights, powers and duties ...” of the Recorder of Deeds in the absence of the Recorder and of the First Deputy supports the importance of the Second Deputy’s political affiliation. We find, however, that although a major factor, the possible succession of the Second Deputy is not outcome determinative here for several reasons.

First, the attendant duties of the Recorder of Deeds appear unaffected by the Recorder’s political views. One must concede that party affiliation was essential to the Recorder’s election to office. Yet politics seems inapposite to “the effective performance of the public office involved.” Branti, 445 U.S. at 518, 100 S.Ct. at 1295.

The powers and duties of the Recorders are described in Pennsylvania’s statutes. See generally Pa.Stat.Ann. tit. 16, §§ 9701-9857 (Purdon 1956 & Supp.1986). In a nutshell, the Recorder is empowered to record all deeds, mortgages and conveyances and to index them in an accessible manner.

The district court described many allegedly policymaking tasks of the Recorder as “pretextual” including which microfilm system to employ, what office supplies to purchase, and whether to greet visitors at the door. Moreover, Gudknecht repeatedly denied partisan aims in his personnel and budgetary recommendations. In any event, the record indicates that the County Commissioners retain oversight responsibilities for the workings of the Registry Office and possess veto power with respect to the Recorder’s budget proposals. By statute, the County Commissioners alone may contract for services and purchase property for the Registry Office and must submit to the lowest bidder all contracts over $4,000. Pa.Stat.Ann. tit. 16, §§ 1801-1802 (Purdon 1956 & Supp.1986). Employees other than the deputy recorders, moreover, are governed by a union contract. Consequently, assuming arguendo that the Second Deputy ascended to the Recorder’s position, any duties he would then be performing would not require political affiliation for their effective performance.

Second, the County Code requires the Governor to appoint a Recorder pro tempore until the electorate can fill any vacancy in the office. See supra note 2. The possibility seems remote, therefore, that a Second Deputy might even temporarily occupy the Recorder’s office.

Third, the political affiliation of deputy recorders has historically played a minor role at best in the overall workings of the Registry Office. The record shows, for example, that William Liebig, a Republican, served for some thirty years as First Deputy to five Recorders of Deeds. Notably, Liebig held his position from 1978 to 1985 during the terms of Democratic Recorder Lucille Trench.

Gudknecht vigorously retorts that Stegmaier v. Trammell, 597 F.2d 1027 (5th Cir.1979), supports the position that the mere chance that Furlong might succeed him as Recorder sufficiently justifies his actions here. Stegmaier held that an elected county circuit clerk could lawfully discharge his lone deputy solely for the deputy’s political affiliation, where state law both endowed deputies “with full power to transact all business of such clerks ..." Ala.Code § 12-17-93 (1975), and exposed the deputy to civil liability for neglecting his statutory duties. Stegmaier, 597 F.2d at 1040.

Yet Stegmaier preceded Branti’s “new test” for adjudging patronage cases. See supra note 1. Stegmaier rested on a finding that the plaintiff “occupied] a position of confidence, loyalty, and trust ...” under Elrod. 597 F.2d at 1030. This reasoning, though, fails to answer Branti’s “ultimate inquiry” into whether membership in a particular political party is a prerequisite to the plaintiff’s office.

Moreover, the court in Stegmaier emphasized the importance to its holding that the plaintiff was the defendant’s sole deputy. Id. at 1040. Here, however, we have noted Furlong’s status two-steps below the Recorder of Deeds. The likelihood that the plaintiff would ascend to Gudknecht’s job seems too far attenuated to withstand Branti’s test.

Finally, the plaintiff in Stegmaier was vested with “full power to transact all business ...” of the circuit clerk. Id. at 1037, quoting Ala.Code § 12-17-93 (1975). Unlike Furlong, the plaintiff there always possessed authority commensurate with that of her elected superior. Although we agree that Furlong’s potential ascension to the role of Recorder merits some weight under Branti, that possibility is insufficient per se to support Gudknecht’s argument.

IV.

Gudknecht also asserts that the First Amendment does not prohibit his refusal to reappoint Furlong. We disagree.

The Supreme Court stated in Branti: [R]elying on testimony that an assistant’s term in office automatically expires when the public defender’s term expires, petitioner argues that we should treat this case as involving a “failure to reappoint” rather than a dismissal and, as a result, should apply a less stringent standard. Petitioner argues that because respondents knew the system was a patronage system when they were hired, they did not have a reasonable expectation of being rehired when control of the office shifted to the Democratic Party. A similar waiver argument was rejected in Elrod v. Burns, 427 U.S. 347, 360, n. 13 [96 S.Ct. 2673, 2683, n. 13]; see also id., at 380 [96 S.Ct. at 2692] (Powell, J., dissenting). After Elrod, it is clear that the lack of a reasonable expectation of continued employment is not sufficient to justify a dismissal based solely on an employee’s private political beliefs.

Branti, 445 U.S. at 512 n. 6, 100 S.Ct. at 1291 n. 6. Thus, our decision stands unaffected by whether this ease presents a firing or a failure to reappoint.

V.

We conclude that the possibility that the plaintiff might statutorily succeed to an elected office remains an important factor in adjudging patronage cases. Yet that potential cannot remove the plaintiff from the protections of Branti where political affiliation is inapposite to the duties of the elected office and where, in any event, the chance appears remote that the plaintiff might ascend thereto. The district court acted within its discretion and did not commit any errors of law in granting the plaintiff’s motion for a preliminary injunction. We will affirm.

1 . We have noted that Branti established a "new test” for adjudging patronage cases. See Loughney v. Hickey, 635 F.2d 1063, 1064 (3d Cir.1980) (per curiam).

2 . Pa.Stat.Ann. tit. 16, § 409 (Purdon Supp.1986) reads:

In case of a vacancy, happening by death, resignation or otherwise, in any county office created by the Constitution or laws of this Commonwealth, and where no other provision is made by the Constitution, or by the provisions of this act, to fill the vacancy, it shall be the duty of the Governor to appoint a suitable person to fill such office, who shall continue therein and discharge the duties thereof until the first Monday in January following the next municipal election occurring not less than ninety days after the occurrence of the vacancy, or for the balance of the unexpired term, whichever period is shorter. If there is a municipal election occurring not less than ninety days after the occurrence of the vacancy, other than the one at which the office ordinarily is filled, then the office shall be filled at that election for the balance of the unexpired term. Such appointee shall be confirmed by the Senate If in session.