American Federation of State, County & Municipal Employees v. Shapp

Opinion by

Mr. Chief Justice Bell,

The plaintiffs in this case are (1) three individuals who at the time the action was brought were employees of the Department of Transportation^* of the Commonwealth of Pennsylvania (hereinafter referred to as D. O.T.), and (2) an AFL-CIO labor union which, although not formally certified as the collective bargaining agent, purports to represent in excess of 5,000 persons who are employed by D.O.T. but are not covered by Civil Service. The defendants are Milton Shapp, Governor of the Commonwealth of Pennsylvania, and Jacob Kassab, Secretary of Transportation of the Commonwealth, who was appointed to that office by Governor Shapp.

The plaintiffs, anticipating that they and many additional thousands of D.O.T. employees who had been appointed and employed by the State under the prior Administration were to be discharged (as they later were: see infra) because of their Republican political sponsorship or patronage, filed a complaint in the Commonwealth Court on April 21,1971, seeking an injunction against their discharge and other equitable relief. Simultaneously with the filing of the complaint, the plaintiffs filed a motion in the Commonwealth Court, asking for a special injunction to restrain mass firings by the Governor of D.O.T. employees solely for political reasons. Thereupon defendants filed preliminary objections in the form of a demurrer.

Plaintiffs’ basic theory is that the employees in this Department, even though admittedly appointed for political reasons, should be entitled to notice and a hearing before discharge, and that political affiliation is not a proper or lawful basis or ground for discharge.

The Commonwealth Court heard argument on the motion for an injunction but refused to issue the injunction without an evidentiary hearing, which it listed for May 10, 1971. In the interim, some two thousand employees of D.O.T. (including the three individual plaintiffs) had been fired and replaced by other persons. At the conclusion of the evidentiary hearing on the plaintiffs’ complaint and on their motion or petition for an injunction, the Commonwealth Court set a further hearing date of June 3, 1971 to consider the defendants’ aforesaid preliminary objections in the form of a demurrer, and also issued an Order to maintain the status quo pending that hearing. The Commonwealth Court’s Order to maintain the status quo also provided (1) that there be no more terminations or discharges of non-policy-making employees in and from D.O.T. without notice and a hearing, and (2) that all such employees in that Department whose employment had been terminated since April 21, 1971 must be given an opportunity for rehiring if and when vacancies arise in the affected job classifications, prior to the disposition of this suit. This was in effect an Order granting a preliminary injunction.^*

The first question raised in this appeal is whether the Commonwealth Court abused its discretion in issuing the aforesaid preliminary injunction.

Ordinarily, three prerequisites are essential to justify the issuance of a preliminary injunction. First, the issuance of the preliminary injunction is necessary to prevent immediate and irreparable harm which could not be compensated by damages; second, greater injury would result by refusing the preliminary injunction than by granting it; third, until a final determination can be made, the decree preserves the status quo and the rights of the parties as they existed immediately prior to the allegedly wrongful conduct. Alabama B. & C. Corp. v. Pa. Ind. Chem. Corp., 410 Pa. 214, 189 A. 2d 180.

Moreover, there must also be some apparently reasonable grounds, as well as pertinent legal principles, to support the preliminary injunction. In Community S., Inc. v. Denver R. Rock., Inc., 429 Pa. 565, 240 A. 2d 832, the Court said (page 569) : “We start with the proposition, now firmly established, that 'on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable: . . .’ Lindenfelser v. Lindenfelser, 385 Pa. 342, 343-44, 123 A. 2d 626, 627 (1956) ; United Natural Gas Co. v. Wagner, 417 Pa. 456, 208 A. 2d 843 (1965); Alabama Binder & Chemical Corp. v. Pennsylvania Industrial Chemical Corp., 410 Pa. 214, 189 A. 2d 180 (1963).”

We believe the Order granting the plaintiffs a preliminary injunction was justified only if the Governor’s actions were clearly in violation of plaintiffs’ Constitutional or Statutory rights.

The basic issue boils down to this: Can the Governor of Pennsylvania discharge at will any and every employee of our State Government who is not protected from discharge (a) by the Constitutional provision of procedural Due Process, with a right to notice and a hearing, or (b) by any other provision of the Constitution, or (c) by any Federal Statute, including the Civil Rights Act and the Voting Rights Act, or (d) by any State Statute, including Civil Service Statutes and the Public Employe Relations Act?

Plaintiffs have been unable to establish a Constitutional right to their retention of a job obtained through the system of political patronage. Absent the establishment of such a Constitutional right, their claim of protection under procedural Due Process of a right to notice and a hearing is without merit. It has long been the established law, in both the Federal Courts and the Courts of our Commonwealth, that a public employer, including as such the Government, may summarily discharge a person in the employ of the Government, absent controlling legislation. In Cafeteria, Workers v. McElroy, 367 U.S. 886, the Supreme Court said (pages 896-897) : “It has become a settled principle that government employment, in the absence of legislation, can be revoked at the will of the appointing officer. In the Matter of Hennen, 13 Pet. 230, 246, 259; Crenshaw v. United States, 134 U.S. 99, 108; Parsons v. United States, 167 U.S. 324, 331-334; Keim v. United States, 177 U.S. 290, 293-294; Taylor and Marshall v. Beckham (No. 1), 178 U.S. 548, 575-578. This principle was reaffirmed quite recently in Vitarelli v. Seaton, 359 U.S. 535. There we pointed out that Vitarelli, an Interior Department employee who had not qualifed for statutory protection under the Civil Service Act, ‘could have been summarily discharged by the Secretary at any time without the giving of a reason. . ’ . 359 U.S., at 539.”

In Scott v. Phila. Parking Auth., 402 Pa. 151, 166 A. 2d 278, our Court adopted the same philosophy as expressed in Cafeteria Workers. With regard to the summary removal of non-Civil Service employees, we said (page 154) : “Without more, an appointed public employee takes his job subject to the possibility of summary removal by the employing authority. He is essentially an employee-at-will^* As we said in Mitchell v. Chester Housing Authority, 389 Pa. 314, 328, 132 A. 2d 873 (1957), with reference to a state agency employee but applicable in general, ‘. . . good administration requires that the personnel in charge of implementing the policies of an agency be responsible to, and responsive to those charged with the policy-making function, who in turn are responsible to a higher governmental authority, or to the public itself, whichever selected them. This chain of responsibility is the basic check on government possessed by the public at large.’ The power to dismiss summarily is the assurance of such responsibility.”

We specifically hold that State employees who obtained their positions (jobs) — as all the parties agree they did — by politics or party patronage, and complain of being fired solely on the grounds of political sponsorship or affiliation, have (1) no Constitutionally ordained right of procedural Due Process, (2) nor any other Constitutionally protected right to their jobs under (a) either the Federal or (b) the State Constitution, (3) nor any right claimed herein under any (a) Federal or (b) State Statute.

For example, the Voting Rights Act of 1965, as amended by the Voting Rights Act of 1970, 42 U.S.C. §1971, on which plaintiffs rely, was enacted to provide and make certain that all citizens of the United States, who are otherwise qualified by law to vote in any election, shall not be deprived of the right to vote as they may choose by reason of race or color, or by intimidation, threats or coercion.

The Civil Rights Act of 1871, 42 U.S.C. §1983, provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

Section 701 of the Pennsylvania Public Employe Relations Act of 1970, P. L. 563, No. 195, upon which plaintiffs likewise rely, pertinently provides: “Collective bargaming is the performance of the mutual obligation of the public employer and the representative of the public employes to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement or any question arising thereunder . . . .”

It is clear that these plaintiffs do not come within the provisions or protection of any of the aforesaid Acts.

Regretfully for many of us, who believe that politics and political influence or patronage should be greatly limited and greatly reduced, and that able State employees, whose livelihood will be jeopardized, should not be discharged for political reasons, we are compelled to hold that the Governor of Pennsylvania has the power and authority to hire and fire at will any and all employees who are not Constitutionally or Statutorily protected — irrespective of their ability, their politics^* or their political connections. Those who, figuratively speaking, live by the political sword must be prepared to die by the political sword.

Order reversed, each party to pay own costs.

Mr. Justice Eagen and Mr. Justice Roberts concur in the result.

* Formerly called the Highway Department.

* The original Order of the Commonwealth Court, which was issued May 11, 1971, did not provide for the posting of a bond. The following day, May 12, 1971, the Commonwealth Court amended its Order to require a bond in the amount of $50,000. In the meantime, defendants had filed an appeal with this Court. However, the writ of certiorari issued by this Court was not filed with the Commonwealth Court until after its original Order had been amended and the plaintiffs had filed the required bond. A special supersedeas was granted by this Court pending the disposition of this appeal.

* Italics throughout, ours.

* Politics or political patronage Is and always has been an Important part and parcel of our Local, State and National Governments, and unless changed by the Legislature, will, we believe, undoubtedly continue to be a part of our Country’s Governments— Local, State and National.