Branti v. Finkel , 100 S. Ct. 1287 ( 1980 )

Mr. Justice Stevens

delivered the opinion of the Court.

The question presented is whether the First and Fourteenth Amendments to the Constitution protect an assistant public defender who is satisfactorily performing his job from discharge solely because of his political beliefs.

Respondents, Aaron Finkel and Alan Tabakman, commenced this action in the United States District Court for the Southern District of New York in order to preserve their positions as assistant public defenders in Rockland County, New York.¹ On January 4,1978, on the basis of a showing that the petitioner public defender was about to discharge them solely because they were Republicans, the District Court entered a temporary restraining order preserving the status quo. After hearing evidence for eight days, the District Court entered detailed findings of fact and permanently enjoined ² petitioner from terminating or attempting to terminate respondents’ employment “upon the sole grounds of their political beliefs.”³ 457 F. Supp. 1284, 1285 (1978). The Court of Appeals affirmed in an unpublished memorandum opinion, judgment order reported at 598 F. 2d 609 (CA2 1979) (table).

The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his pleasure. The two respondents have served as assistants since their respective appointments in March 1971 and September 1975; they are both Republicans.⁴

Petitioner Branti’s predecessor, a Republican, was appointed in 1972 by a Republican-dominated County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner, also a Democrat, was appointed to replace the incumbent when his term expired. As soon as petitioner was formally appointed on January 3, 1978, he began executing termination notices for six of the nine assistants then in office. Respondents were among those who were to be terminated. With one possible exception, the nine who were to be appointed or retained were all Democrats and were all selected by Democratic legislators or Democratic town chairmen on a basis that had been determined by the Democratic caucus.⁵

The District Court found that Finkel and Tabakman had been selected for termination solely because they were Republicans and thus did not have the necessary Democratic sponsors:

“The sole grounds for the attempted removal of plaintiffs were the facts that plaintiffs’ political beliefs differed from those of the ruling Democratic majority in the County Legislature and that the Democratic majority had determined that Assistant Public Defender appointments were to be made on political bases.” 457 F. Supp., at 1293.

The court rejected petitioner’s belated attempt to justify the dismissals on nonpolitical grounds. Noting that both Branti and his predecessor had described respondents as “competent attorneys,” the District Court expressly found that both had been “satisfactorily performing their duties as Assistant Public Defenders.” Id., at 1292.

Having concluded that respondents had been discharged solely because of their political beliefs, the District Court held that those discharges would be permissible under this Court’s decision in Elrod v. Burns, 427 U. S. 347, only if assistant public defenders are the type of policymaking, confidential employees who may be discharged solely bn the basis of their political affiliations. The court concluded that respondents clearly did not fall within that category. Although recognizing that they had broad responsibilities with respect to particular cases that were assigned to them, the court found that respondents had “very limited, if any, responsibility” with respect to the overall operation of the public defender’s office. They did not “act as advisors or formulate plans for the implementation of the broad goals of the office” and, although they made decisions in the context of specific cases, “they do not make decisions about the orientation and operation of the office in which they work.” 457 F. Supp., at 1291.

The District Court also rejected the argument that the confidential character of respondents’ work justified conditioning their employment on political grounds. The court found that they did not occupy any confidential relationship to the policy-making process, and did not have access to confidential documents that influenced policymaking deliberations. Rather, the only confidential information to which they had access was the product of their attorney-client relationship with the office’s clients; to the extent that such information was shared with the public defender, it did not relate to the formulation of office policy.

In light of these factual findings, the District Court concluded that petitioner could not terminate respondents’ employment as assistant public defenders consistent with the First and Fourteenth Amendments. On appeal, a panel of the Second Circuit affirmed, specifically holding that the District Court’s findings of fact were adequately supported by the record. That court also expressed “no doubt” that the District Court “was correct in concluding that an assistant public defender was neither a policymaker nor a confidential employee.” We granted certiorari, 443 U. S. 904, and now affirm.

Petitioner advances two principal arguments for reversal:⁶ First, that the holding in Elrod v. Burns is limited to situations in which government employees are coerced into pledging allegiance to a political party that they would not voluntarily support and does not apply to a simple requirement that an employee be sponsored by the party in power; and, second, that, even if party sponsorship is an unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is an acceptable requirement for an assistant public defender.

I

In Elrod v. Burns the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had violated the constitutional rights of certain non-civil-service employees by discharging them “because they did not support and were not members of the Democratic Party and had failed to obtain the sponsorship of one of its leaders.” 427 U. S., at 351. That holding was supported by two separate opinions.

Writing for the plurality, Mr. Justice Brennan identified two separate but interrelated reasons supporting the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First, he analyzed the impact of a political patronage system⁷ on freedom of belief and association. Noting that in order to retain their jobs, the Sheriff’s employees were required to pledge their allegiance to the Democratic Party, work for or contribute to the party’s candidates, or obtain a Democratic sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into compromising their true beliefs.⁸ That conclusion, in his opinion, brought the practice within the rule of cases like Board of Education v. Barnette, 319 U. S. 624, condemning the use of governmental power to prescribe what the citizenry-must accept as orthodox opinion.⁹

Second, apart from the potential impact of patronage dismissals on the formation and expression of opinion, Me. Justice Brennan- also stated that the practice had the effect of imposing an unconstitutional condition on the receipt of a public benefit and therefore came within the rule of cases like Perry v. Sindermann, 408 U. S. 593. In support of the holding in Perry that even an employee with no contractual right to retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had stated:

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U, S. 513, 526. Such interference with constitutional rights is impermissible.

“Thus, the respondent’s lack of a contractual or tenure ‘right’ to re-employment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the non-renewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights. Shelton v. Tucker, [364 U. S. 479]; Keyishian v. Board of Regents, [385 U. S. 589]. We reaffirm those holdings here.” Id., at 597-598.

If the First Amendment protects a public employee from discharge based on what he has said, it must also protect him from discharge based on what he believes.¹⁰ Under this line of analysis, unless the government can demonstrate “an overriding interest,” 427 U. S., at 368, "of vital importance,” id., at 362, requiring that a person’s private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for depriving him of continued public employment.

1 Jurisdiction was based on 42 U. S. C. § 1983 and 28 U. S. C. § 1343 (3).

2 Pursuant to Rule 65 (a) (2) of tbe Federal Rules of Civil Procedure, the plenary trial was consolidated with the hearing on the application for a preliminary injunction.

3 The District Court explained that its ruling required petitioner to retain respondents in their prior positions, with full privileges as employees: “ [Compliance with the judgment to be entered herein will require defendant both to permit plaintiffs to work as Assistants and to pay them the normal Assistant’s salary. Mere payment of plaintiffs’ salary will not constitute full compliance with the judgment entered herein; for plaintiffs’ constitutional right, which is upheld herein, is the right not to be dismissed from public employment upon the sole ground of their political beliefs. Defendant cannot infringe that right of plaintiffs with impunity by the mere expedient of paying plaintiffs a sum of money.” 457 F. Supp. 1284, 1285-1286, n. 4 (1978).

4 The District Court noted that Finkel had changed his party registration from Republican to Democrat in 1977 in the apparent hope that such action would enhance his chances of being reappointed as an assistant when a new, Democratic public defender was appointed. The court concluded that, despite Finkel’s formal change of party registration, the parties had regarded him as a Republican at all relevant times. Id., at 1285, n. 2.

5 “An examination of the selection process that was employed in arriving at the name of each of the nine 1978 appointees shows that the hiring decisions were, for all practical purposes, made by Democratic legislators or chairpersons in accordance with the procedures that had been decided upon by the Democratic caucus, and, with respect to every selection save that of Sanchez, those procedures excluded from consideration candidates who were affiliated with a party other than the Democratic Party. Moreover, the evidence shows that the only reason for which Branti sought to terminate plaintiffs as Assistants was that they were not recommended or sponsored pursuant to the procedures that had been decided upon by the Democratic caucus.” Id., at 1288.

6 Petitioner also makes two other arguments. First, he contends that the action should have been dismissed because the evidence showed that he would have discharged respondents in any event due to their lack of competence as public defenders. See Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274. The Court of Appeals correctly held this contention foreclosed by the District Court’s findings of fact, which it found to be adequately supported by the record. In view of our settled practice of accepting, absent the most exceptional circumstances, factual determinations in which the district court and the court of appeals have concurred, we decline to review these and other findings of fact petitioner argues were clearly erroneous. See Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275; United States v. Ceccolini, 435 U. S. 268, 273.

Second, relying 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. I’etitioner 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; see also id., at 380 (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.

Unlike Me. Justice Powell in dissent, post, at 526-532, petitioner does not ask us to reconsider the holding in Elrod.

7 Mr. Justice Brennan noted that many other practices are included within the definition of a patronage system, including placing supporters in government jobs not made available by political discharges, granting supporters lucrative government contracts, and giving favored wards improved public services. In that case, as in this, however, the only practice at issue was the dismissal of public employees for partisan reasons. 427 U. S., at 353; id, at 374 (opinion of Stewart, J.). In light of the limited nature of the question presented, we have no occasion to address petitioner’s argument that there is a compelling governmental interest in maintaining a political sponsorship system for filling vacancies in the public defender’s office.

8 “An individual who is a member of the out-party maintains affiliation with his own party at the risk of losing his job. He works for the election of his party’s candidates and espouses its policies at the same risk. The financial and campaign assistance that he is induced to provide to another party furthers the advancement of that party’s policies to the detriment of his party’s views and ultimately his own beliefs, and any assessment of his salary is tantamount to coerced belief. See Buckley v. Valeo, 424 U. S. 1, 19 (1976). Even a pledge of allegiance to another party, however ostensible, only serves to compromise the individual’s true beliefs. Since the average public employee is hardly in the financial position to support his party and another, or to lend his time to two parties, the individual’s ability to act according to his beliefs and to associate with others of his political persuasion is constrained, and support for his party is diminished.” Id., at 355-356.

Mr. Justice BrenNAN also indicated that a patronage system may affect freedom of belief more indirectly, by distorting the electoral process. Given the increasingly pervasive character of government employment, he concluded that the power to starve political opposition by commanding partisan support, financial and otherwise, may have a significant impact on the formation and expression of political beliefs.

9 “Regardless of the nature of the inducement, whether it be by the denial of public employment or, as in Board of Education v. Barnette, 319 U. S. 624 (1943), by the influence of a teacher over students, ‘[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’ Id., at 642.” Id., at 356.

10 “The Court recognized in United Public Workers v. Mitchell, 330 U. S. 75, 100 (1947), that ‘Congress may not “enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office. . . This principle was reaffirmed in Wieman v. Updegraff, 344 U. S. 183 (1952), which held that a State could not require its employees to establish their loyalty by extracting an oath denying past affiliation with Communists. And in Cafeteria Workers v. McElroy, 367 U. S. 886, 898 (1961), the Court recognized again that the government could not deny employment because of previous membership in a particular party.” Id., at 357-358.