Keri Borzilleri v. Marilyn Mosby ( 2017 )


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  •                                       PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-1751
    KERI L. BORZILLERI,
    Plaintiff - Appellant,
    v.
    MARILYN J. MOSBY, in her official and personal capacities; STATE OF
    MARYLAND,
    Defendants - Appellees.
    Appeal from the United States District Court for the District of Maryland, at Baltimore.
    J. Frederick Motz, Senior District Judge. (1:15-cv-03760-JFM)
    Argued: September 14, 2017                            Decided: October 17, 2017
    Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.
    Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge
    Traxler and Judge Agee joined.
    ARGUED: Stacey Kamya Grigsby, BOIES, SCHILLER & FLEXNER LLP,
    Washington, D.C., for Appellant. Patrick Browning Hughes, OFFICE OF THE
    ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON
    BRIEF: Ryan Y. Park, Washington, D.C., Nafees Syed, BOIES, SCHILLER &
    FLEXNER LLP, New York, New York, for Appellant. Brian E. Frosh, Attorney General
    of Maryland, Julia Doyle Bernhardt, Assistant Attorney General, OFFICE OF THE
    ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
    WILKINSON, Circuit Judge:
    This case arises out of appellant Keri Borzilleri’s suit alleging that appellee
    Marilyn Mosby fired her for supporting Mosby’s political rival, thereby violating
    Borzilleri’s First Amendment rights. The district court determined that, as an Assistant
    State’s Attorney, Borzilleri was a policymaker exempt from the First Amendment’s
    protection against patronage dismissals. We affirm. To hold otherwise would undermine
    the public mandate bestowed upon the victor of a hard-fought election and would
    needlessly interfere with a state official’s managerial prerogative.
    I.
    A.
    On January 5, 2015, Marilyn Mosby took office as Baltimore City State’s
    Attorney, an elected position with authority over more than one hundred prosecutors.
    Four days later, Mosby fired Assistant State’s Attorney Keri Borzilleri without
    explanation. As an ASA for nine years, Borzilleri had made charging decisions,
    negotiated plea deals, and tried serious cases. Near the end of her tenure, she had also
    served as one of the office’s three “Community Prosecutors,” tasked with prosecuting
    complex crimes and liaising with local police and city residents. Borzilleri’s performance
    was, by her account, exemplary. She alleges—and for the purposes of resolving this
    appeal, we assume—that the sole motivation for Borzilleri’s termination was her prior
    support for Mosby’s political opponent.
    The trouble began in 2014, when Borzilleri took sides in a bruising Democratic
    primary battle for Baltimore City State’s Attorney. She supported Gregg Bernstein, the
    2
    incumbent, over Mosby, a former colleague. Although Borzilleri had no official role in
    Bernstein’s campaign and never donated money to it, she attended Bernstein’s campaign
    events, placed a Bernstein sign in front of her home, and hosted a gathering of
    approximately twenty Bernstein supporters. Photos of the event appeared on Facebook.
    According to Borzilleri, her once-cordial relationship with Mosby quickly soured.
    Borzilleri alleged that on two occasions after she began supporting Bernstein, Mosby
    glared at her and declined to acknowledge her in public.
    Mosby defeated Bernstein in the June 2014 primary and went on to win the
    general election that November. Three days after Mosby took office, a newly appointed
    political deputy asked Borzilleri about Bernstein’s campaign. She explained her role. The
    following day, she was fired without cause.
    B.
    Borzilleri filed suit against Mosby in the District of Maryland on December 9,
    2015. She sought damages under 
    42 U.S.C. § 1983
     for violations of her First Amendment
    rights to free speech and free association, for violations of her freedoms of speech and
    association guaranteed by Article 40 of the Maryland Declaration of Rights, and for
    abusive discharge under Maryland tort law. Mosby filed a motion to dismiss all counts
    for failure to state a claim upon which relief can be granted.
    On May 31, 2016, the district court granted Mosby’s motion. Borzilleri v. Mosby,
    
    189 F. Supp. 3d 551
     (D. Md. 2016). It dismissed with prejudice Borzilleri’s state and
    federal free association claims and her federal free speech claim, and dismissed without
    prejudice her remaining state law claims. As to Borzilleri’s free association claims, the
    3
    district court concluded that a Baltimore City ASA was a policymaker under the Supreme
    Court’s decisions in Elrod v. Burns, 
    427 U.S. 347
     (1976), and Branti v. Finkel, 
    445 U.S. 507
     (1980), and that political loyalty to the State’s Attorney was thus an “appropriate
    requirement” for the job. 189 F. Supp. 3d at 560. Because Maryland courts interpret
    Article 40’s freedom of association protections in pari materia with the First
    Amendment’s, the district court resolved the state law association claim on the same
    grounds. The district court also relied on Borzilleri’s status as a policymaker to resolve
    her federal free speech claim, holding that “where political affiliation is a proper
    requirement” for employment, the “balance [of interests] tips decisively in favor of the
    government.” 189 F. Supp. 3d at 562. Alternatively, the district court held that Mosby
    was entitled to qualified immunity on both federal claims. With the state free speech
    claim and the abusive discharge claim resting on distinct state law questions, and no other
    federal issues before it, the court dismissed Borzilleri’s remaining state law claims
    without prejudice.
    This appeal followed. In reviewing a dismissal under Federal Rule of Civil
    Procedure 12(b)(6), we review questions of law de novo and accept pleaded facts as true.
    King v. Rubenstein, 
    825 F.3d 206
    , 212, 214 (4th Cir. 2016).
    II.
    We first consider whether Borzilleri’s firing violated her First Amendment right to
    free association.
    A.
    4
    The Supreme Court first confronted the constitutionality of political patronage in
    Elrod v. Burns, 
    427 U.S. 347
     (1976). A plurality of the Court concluded that conditioning
    public employment on party loyalty was tantamount to a system of “coerced belief” in
    violation of the First Amendment’s guarantee of free association. 
    Id. at 355
    . And
    although there was no majority opinion, Elrod came to stand for the proposition that
    under the First Amendment, “a nonpolicymaking, nonconfidential government
    employee” cannot be “discharged or threatened with discharge from a job that he is
    satisfactorily performing upon the sole ground of his political beliefs.” 
    Id. at 375
    (Stewart, J., concurring in the judgment). As those qualifiers suggest, the decision carved
    out a narrow exception for policymakers or other sensitive government positions.
    Branti v. Finkel, 
    445 U.S. 507
     (1980), clarified the policymaker exception to the
    prohibition on patronage firings. In holding that public defenders were not policymakers,
    the Court explained that “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.” 
    Id. at 518
    .
    Guided by those precedents, this court has adopted a two-part test for determining
    whether a particular position is a policymaking one and therefore exempt from the
    constitutional prohibition on patronage dismissal. See Stott v. Haworth, 
    916 F.2d 134
     (4th
    Cir. 1990). First, we ask whether “the position involve[s] government decisionmaking on
    issues where there is room for political disagreement on goals or their implementation.”
    
    Id. at 141
    . If so, we “examine the particular responsibilities of the position to determine
    5
    whether it resembles a policymaker, a privy to confidential information, a communicator,
    or some other office holder whose function is such that party affiliation is an equally
    appropriate requirement.” 
    Id. at 142
     (quoting Jimenez Fuentes v. Torres Gaztambide, 
    807 F.2d 236
    , 241-42 (1st Cir. 1986) (en banc)). For instance, in Jenkins v. Medford, we held
    that North Carolina deputy sheriffs were policymakers because they operated as “alter
    ego[s]” of the elected sheriff in implementing important public policies. 
    119 F.3d 1156
    ,
    1164 (4th Cir. 1997) (en banc).
    B.
    Borzilleri’s complaint leaves no room for doubt: Baltimore City Assistant State’s
    Attorneys are policymakers for First Amendment purposes.
    Assistant prosecutors make discretionary decisions of real consequence. They
    oversee investigations, prosecute crimes, and negotiate plea deals. As the Supreme Court
    explained in Branti, prosecutors have “broader public responsibilities” beyond the mere
    representation of individual citizens. 
    445 U.S. at
    519 n.13. They represent and safeguard
    the public at large. These responsibilities are laden with ideological content. How much
    of a prosecutor’s limited resources should go toward a particular category of crime? Does
    one type of plea deal call for leniency or severity? Questions like these are debated in
    prosecutorial campaigns across the country. That is to say, there is much “room for
    political disagreement,” Stott, 
    916 F.2d at 141
    , in carrying out prosecutorial priorities.
    The contrasts between the prosecutorial responsibilities at issue in this case and
    the deputy clerk of court position considered in Lawson v. Union County Clerk of Court,
    
    828 F.3d 239
     (4th Cir. 2016), are instructive. In Lawson, we held that deputy clerks were
    6
    not policymakers because they were “generally responsible for administrative and
    ministerial tasks.” 
    Id. at 248
    . Any “particular political philosophy” was irrelevant to
    “overseeing case intake, receiving filing fees, collecting and disbursing funds from the
    child support account, and tracking and reporting court data.” 
    Id.
     By comparison,
    assistant prosecutors’ tasks are far from ministerial. Be it investigations, charges, or
    pleas, ASAs exercise discretion on matters implicating “partisan political interests or
    concerns” on a daily basis. 
    Id.
    Elections mean something. Majorities bestow mandates. Elected prosecutors
    translate those mandates into policies. And assistant prosecutors implement those
    policies. It is therefore entirely proper for an electoral victor to assess whether she has
    confidence in those charged with fulfilling her “duty to the electorate and the public at
    large to ensure that [her] espoused policies are implemented.” Jenkins, 
    119 F.3d at 1162
    .
    As Jenkins noted, “[s]ome candidates gain office by promising changes in current
    policy.” 
    Id.
     It may often be the case that those who served in the ancien régime are
    resistant to a change in the established way of doing things. To entrench former
    policymakers may, in such circumstances, deprive democratic politics of its necessary
    adaptability.
    In Maryland, assistant prosecutors’ authority to implement vital public policy is
    not just a matter of convenience or custom, but of state law. A State’s Attorney has the
    power to prosecute “on the part of the State all cases in which the State may be
    interested,” 
    Md. Code Ann., Crim. Proc. § 15-102
    , and to “assign to his deputies and
    assistants . . . the duties required of him by law with respect to the institution and
    7
    prosecution of criminal actions,” State v. Aquilla, 
    18 Md. App. 487
    , 494 (1973). This
    delegation even goes beyond that of the “alter-ego” sheriff’s deputies in Jenkins. A
    Maryland State’s Attorney can, unlike the sheriff, “delegate final responsibility for his
    official duties,” Jenkins, 
    119 F.3d at 1163
    , to a subordinate. See Aquilla, 18 Md. App. at
    494. As a matter of state law, then, ASAs “play a special role in implementing” a State’s
    Attorney’s “policies and goals.” Jenkins, 
    119 F.3d at 1162
    .
    Just   as   assistant   prosecutors   generally   engage   in   politically   charged
    decisionmaking, Borzilleri’s “particular responsibilities” bore all the hallmarks of a
    “policymaker” and “communicator.” Stott, 
    916 F.2d at 142
    . She made independent
    “charging decisions” and “plea offers” in major cases. Am. Compl. ¶¶ 6, 8. What is more,
    Borzilleri was one of just three “Community Prosecutors,” who “prosecuted complex
    crimes and served as a liaison between the State’s Attorney’s Office, the community, and
    the local police.” Id. at ¶ 5. In other words, Borzilleri was tasked with directly
    implementing the State’s Attorney’s policies and with communicating them to key
    constituents. It is hard to imagine a clearer example of a position that “resembles a
    policymaker” or “a communicator.” Stott, 
    916 F.2d at 142
    .
    Borzilleri contends that because assistant prosecutors are officers of the court,
    their position by its very nature constrains any policymaking authority that they possess.
    Appellant’s Br. at 55. But while ASAs may be duty bound to conform to the rules of
    professional responsibility, that fact only constrains their discretion at the margins.
    Assistant prosecutors still make final decisions about whom to investigate, whom to
    charge, and what plea bargains to accept. The Baltimore City State’s Attorney heads the
    8
    office to be sure. But she cannot possibly keep track of all the many individual decisions
    made by more than one hundred assistant prosecutors, not to mention whether those
    decisions reflect departmental policy. It is for that reason that the Elrod-Branti inquiry
    “focus[es] on the powers inherent in a given office, as opposed to the functions
    performed by a particular occupant of that office.” Stott, 
    916 F.2d at 142
    .
    In concluding that an assistant prosecutor occupies a policymaking position under
    Elrod and Branti, we join a unanimous chorus of courts of appeals to have considered the
    issue. 1 See Simasko v. County of St. Clair, 
    417 F.3d 559
    , 563 (6th Cir. 2005); Aucoin v.
    Haney, 
    306 F.3d 268
    , 276 (5th Cir. 2002); Fazio v. City and County of San Francisco,
    
    125 F.3d 1328
    , 1334 (9th Cir. 1997); Monks v. Marlinga, 
    923 F.2d 423
    , 426 (6th Cir.
    1991); Livas v. Petka, 
    711 F.2d 798
    , 800-01 (7th Cir. 1983); Mummau v. Ranck, 
    687 F.2d 9
    , 10 (3d Cir. 1982). Our sister circuits have not equivocated. As we do now, they have
    recognized that assistant prosecutors are “vested with broad discretionary powers” and
    “perform all the functions” of their elected superiors. Aucoin, 
    306 F.3d at 275, 276
    . Their
    “‘client’ is not an individual, but society as a whole,” and they implement policies
    “necessary to protect the interests of that society.” Livas, 
    711 F.2d at 800
    . Above all,
    “[t]he public interest in the efficient administration of justice requires that decisions made
    1
    Borzilleri also appealed the district court’s determination that Mosby possessed
    qualified immunity. Although we resolve this case on the merits, we briefly note that the
    fact that every court of appeals to consider the issue is in agreement casts serious doubt
    on Borzilleri’s contention that Mosby’s actions violated “clearly established” federal law.
    See Pearson v. Callahan, 
    555 U.S. 223
    , 243-44 (2009).
    9
    by such assistant prosecutors conform with the broad objectives chosen by the
    prosecutor.” Id. at 801.
    It is worth noting that federal courts should be chary of dictating how state
    officials carry out their responsibilities in an area so freighted with public importance.
    The Constitution can be a blunt instrument for micromanaging state civil service
    protections. There is thus no reason to impair the ability of states to enact statutory
    avenues of redress for Assistant State’s Attorneys like those in the meticulously balanced
    federal civil service law. See 
    5 U.S.C. § 2302
     (prohibiting “any personnel action” that
    discriminates on the basis of “political affiliation,” but exempting from protection those
    positions with a “confidential, policy-determining, policy-making, or policy-advocating
    character”). Here, state courts possess concurrent jurisdiction over plaintiff’s claims, and
    Borzilleri remains free to bring her surviving state law claims in the state system. 2 Our
    federal system often counsels restraint. And it is no abdication of our responsibilities in
    this case to avoid undue interference with the managerial prerogatives of an elected state
    official.
    III.
    2
    The district court did not abuse its discretion in dismissing with prejudice
    Borzilleri’s intertwined state claim, or in dismissing without prejudice the non-
    intertwined state claims. See White v. County of Newberry, S.C., 
    985 F.2d 168
    , 172 (4th
    Cir. 1993). It correctly concluded that Maryland courts interpret Article 40 in pari
    materia with the First Amendment to resolve Borzilleri’s state free association claim. See
    Borzilleri, 189 F. Supp. 3d at 557; Newell v. Runnels, 
    407 Md. 578
    , 608 (2009). And the
    district court had “wide latitude in determining whether or not to retain jurisdiction over”
    the remaining non-intertwined claims. Shanaghan v. Cahill, 
    58 F.3d 106
    , 110 (4th Cir.
    1995).
    10
    We next consider whether Borzilleri’s firing constituted retaliation for expressing
    a political opinion in violation of her First Amendment right to free speech.
    A.
    The free speech protections afforded to public employees require balancing their
    interests as citizens “in commenting upon matters of public concern,” Pickering v. Bd. of
    Educ., 
    391 U.S. 563
    , 568 (1968), the community’s interest in hearing those employees’
    “informed opinions on important public issues.” City of San Diego v. Roe, 
    543 U.S. 77
    ,
    82 (2004) (per curiam), and the government’s interest “in promoting the efficiency of the
    public services it performs through its employees,” Pickering, 
    391 U.S. at 568
    . The First
    Amendment protects a public employee’s speech where the first two interests outweigh
    the third. See Crouse v. Town of Moncks Corner, 
    848 F.3d 576
    , 582-83 (4th Cir. 2017).
    Before reaching that balancing inquiry, however, we must ask two threshold
    questions. First, we determine whether public employees’ statements can “be fairly
    characterized as constituting speech on a matter of public concern.” Connick v. Myers,
    
    461 U.S. 138
    , 146 (1983). If not, no protection adheres. 
    Id.
     Second, we ask whether
    public employees were speaking “pursuant to their official duties.” Garcetti v. Ceballos,
    
    547 U.S. 410
    , 421 (2006). If so, they were “not speaking as citizens for First Amendment
    purposes, and the Constitution does not insulate their communications from employer
    discipline.” 
    Id.
    B.
    11
    Because the government possesses a strong interest in maintaining harmony
    between elected prosecutors and their policymaking subordinates, we conclude that
    Borzilleri’s firing did not unconstitutionally burden her free speech.
    The threshold inquiries are quickly resolved. Borzilleri spoke as a private citizen,
    not “pursuant to [her] official duties” as a prosecutor. See Garcetti, 
    547 U.S. at 421
    . And
    she opined on an election, perhaps the quintessential “matter of public concern.”
    Connick, 
    461 U.S. at 146
    . There is no obstacle to reaching Pickering balancing here.
    Although Pickering and its progeny are distinct from the Elrod-Branti line, our
    precedents have long recognized their close kinship. See, e.g., McVey v. Stacy, 
    157 F.3d 271
    , 278 (4th Cir. 1998) (noting that policymakers enjoy “substantially less” free speech
    protection and that “[t]his principle tends to merge with the established jurisprudence
    governing [free association and patronage dismissals]”). Once we have found that the
    Elrod-Branti policymaker exception applies, the Pickering balance generally tips in favor
    of the government because of its overriding interest in ensuring an elected official’s
    ability to implement his policies through his subordinates. See Rose v. Stephens, 
    291 F.3d 917
    , 922 (6th Cir. 2002) (noting that Pickering balancing favors the government where
    the employee is a policymaker under Elrod-Branti); Flynn v. City of Boston, 
    140 F.3d 42
    ,
    47 (1st Cir. 1998) (same); Rodriguez Rodriguez v. Munoz Munoz, 
    808 F.2d 138
    , 144-45
    (1st Cir. 1986) (same). Simply put, where an employer “does not violate his employee’s
    association rights by terminating him for political disloyalty, the employer also does not
    violate his employee’s free speech rights by terminating him for speech displaying that
    political disloyalty.” Bland v. Roberts, 
    730 F.3d 368
    , 394 (4th Cir. 2013).
    12
    We see no reason to depart from that conclusion here, especially where an
    employee has vigorously campaigned against the election of the very person who became
    her boss. If we were to strike the Pickering balance differently, any assistant prosecutor
    facing a patronage dismissal permitted by Elrod-Branti could attempt to shield himself
    behind Pickering by publicly criticizing his newly elected superior. Our First Amendment
    jurisprudence would then have become self-defeating.
    IV.
    For the foregoing reasons, the judgment of the district court is
    AFFIRMED.
    13