                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2007

Galli v. NJ Meadowlands Comm
Precedential or Non-Precedential: Precedential

Docket No. 05-4114




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Galli v. NJ Meadowlands Comm" (2007). 2007 Decisions. Paper 835.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/835


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                   PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                 No. 05-4114


                ANNE GALLI,

                            Appellant

                      v.

NEW JERSEY MEADOWLANDS COMMISSION;
     SUSAN BASS LEVIN, in her official
         and individual capacities



  Appeal from the United States District Court
           for the District of New Jersey
       (D.C. Civil Action No. 03-cv-01237)
 District Judge: Honorable Joseph A. Greenaway


           Argued December 4, 2006
      Before: RENDELL and AMBRO, Circuit Judges
                BAYLSON,* District Judge

                (Opinion filed: June 20, 2007)

Kevin Kiernan, Esquire (Argued)
Kiernan & Campbell
206 Claremont Avenue
Montclair, NJ 07042
      Counsel for Appellant

William F. Maderer, Esquire
Sean R. Kelly, Esquire (Argued)
Bryan P. Schroeder, Esquire
Saiber, Schlesinger, Satz & Goldstein
One Gateway Center
Suite 1300
Newark, NJ 07102-5311

       Counsel for Appellee
       New Jersey Meadowlands Commission

Zulima V. Farber
  Attorney General of New Jersey
Michele A. Daitz
  Deputy Attorney General
Jane A. Greenfogel, Esquire (Argued)
Office of Attorney General of New Jersey

  *
   Honorable Michael M. Baylson, United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                               2
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625

       Counsel for Appellee
       Susan Bass Levin


                 OPINION OF THE COURT


AMBRO, Circuit Judge

        An apolitical government employee appeals a grant of
summary judgment rejecting her claim that she was fired in
violation of her First Amendment rights because she failed to
support the administration or political party in power. We hold
that First Amendment rights to freedom of speech and
association protect government employees who lack a political
affiliation from political patronage discrimination. We therefore
vacate the District Court’s grant of summary judgment and
remand for application of this legal standard.

I.     Factual Background and Procedural History

       Anne Galli filed a political patronage discrimination
claim against the New Jersey Meadowlands Commission
(“Commission”) and its Chair, Susan Bass Levin. Galli alleges
that she was unlawfully terminated from her position with the
Commission because she was neither an active Democrat nor a

                               3
supporter of then newly elected Democratic Governor James
McGreevey.

       Galli holds degrees in biology, environmental science,
and ecology, and has worked as a naturalist and professor of
ornithology. She was hired to serve on the Commission in 1984
during the Republican administration of Governor Thomas
Kean. At the time of her termination in 2002, she was the
Commission’s Director of Environmental Education, earning
more than $100,000 annually. During her tenure, Galli claims
that she was not registered with a political party and kept her
lack of political affiliation private. Galli never shared her
political views with her supervisor and was not asked to
participate in any partisan political activity.

       The Commission—whose charge includes environmental
protection, economic development, and solid waste
management—is an affiliate of the New Jersey Department of
Community Affairs and is governed by a seven-member Board.
The Board appoints an Executive Director, who runs the
Commission day-to-day. Following Governor McGreevey’s
election in November 2001, Levin was appointed as the Director
of the Department of Community Affairs, and she installed
herself as head of the Commission soon thereafter. In July
2002, Robert Ceberio was appointed Executive Director of the
Commission.

      The Commission has a detailed manual outlining its


                              4
employee personnel policies. It specifies that three Commission
Board members, who comprise the “Personnel Committee,” are
charged with supervision of personnel matters. With respect to
terminations due to “problematic” performance, a written
performance improvement plan must be conducted, the
termination must be in writing, and the terminated employee
must be granted the opportunity for a hearing. Finally, creation
of new jobs must be reviewed by the Board.

       In March 2002, Executive Director Ceberio met with
newly appointed Commissioner Levin to discuss operations and
personnel changes. As a result of that meeting, in April 2002
Galli and ten other employees of the Commission—all of whom
had been hired during Republican administrations—were fired.
A few days prior, Ceberio met with Galli to inform her that she
would be terminated. According to Galli, Ceberio stated that
she was being fired because the Commission was going in a
“different direction”; however, he made no reference to either
poor job performance or a Commission-wide reorganization, the
two reasons later given by the Commission for Galli’s
termination. Immediately following this meeting, Galli
telephoned Commissioner Eleanore Nissley, a Republican who
was serving as Vice Chair of the Commission at the time.
According to Galli, Nissley acknowledged that the Commission
was “letting Republicans go,” and stated by way of explanation
that “some Democrat [obviously] wants the spot” and that one




                               5
has to “pay to play with this administration.”1 Galli claims that
the Commission’s personnel policies with respect to termination
were not followed in her case.

        Although the eleven employees (including Galli)
purportedly were fired as part of a “reorganization” to make the
Commission more efficient and cost-effective, it hired eighteen
new employees in the year following these terminations. Galli
contends that the eighteen new hires were almost all political
patrons of the Democratic administration. She also alleges that
many of these new hires were unqualified and extensively
connected to the administration or the Democratic Party. In
particular, she notes that her replacement, Linda Mercurio,
formerly was a tax attorney with no background in
environmental science or education. Galli asserts that Mercurio
had strong ties to the Democratic Party establishment, having
previously run for office twice on the Democratic ticket, which
Galli believes explains Mercurio’s hiring. Galli, on the other
hand, had never before received negative feedback from her
superiors, and, in fact, helped the Environmental Education
Division earn an award of excellence that was bestowed shortly
after she was fired.

        In February 2003, Galli filed a complaint under 42 U.S.C.


    1
     Although Nissley denies making this statement, for the
purpose of summary judgment, we view the evidence in the light
most favorable to Galli.

                                6
§ 1983 against both the Commission and Levin in the United
States District Court for the District of New Jersey, alleging that
her termination amounted to political patronage discrimination
in violation of her First Amendment rights. The Commission
and Levin responded by filing motions for summary judgment.
In August 2005, the District Court granted these motions and
dismissed Galli’s complaint, holding that Galli could not
establish that she had engaged in constitutionally protected
activity because she was unaffiliated with any political party and
disinclined to be active politically. In addition, the Court held
that the Commission had no knowledge of Galli’s political
affiliation or lack thereof; thus political considerations could not
have motivated her termination.

       Galli appeals to us, arguing that the rights to freedom of
speech and association guaranteed by the First Amendment
protect employees like her (who lack political affiliation) from
political patronage discrimination.

II.    Jurisdiction and Standard of Review

      The District Court had jurisdiction in this case under 28
U.S.C. § 1331, and we have appellate jurisdiction pursuant to 28
U.S.C. § 1291.

      Our review of a District Court’s grant of summary
judgment is plenary. See, e.g., Slagle v. County of Clarion, 435
F.3d 262, 263 (3d Cir. 2006). A grant of summary judgment is


                                 7
proper when the moving party has established that there is no
genuine dispute of material fact and that “the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
A fact is material if it might affect the outcome of the suit under
the governing substantive law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). A court should view the facts in the
light most favorable to the non-moving party and make all
reasonable inferences in that party’s favor. Hugh v. Butler
County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

       To prevail on a motion for summary judgment, the non-
moving party must show specific facts such that a reasonable
jury could find in that party’s favor, thereby establishing a
genuine issue of fact for trial. See Fed. R. Civ. P. 56(e). “While
the evidence that the non-moving party presents may be either
direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).

       Finally, where the First Amendment is involved, we
“undertake exacting review of the whole record with a
particularly close focus on facts that are determinative of a
constitutional right.” Armour v. County of Beaver, Pa., 271
F.3d 417, 420 (3d Cir. 2001) (citing New York Times Co. v.
Sullivan, 376 U.S. 254, 285 (1964)).




                                8
III.   Discussion

       A.     Political Patronage Discrimination

       Political patronage is a practice “as old as the American
Republic.” Boyle v. County of Allegheny Pa., 139 F.3d 386, 394
(3d Cir. 1998). However, the Supreme Court has set limits to its
use, emphasizing that “[t]o the victor belong only those spoils
that may be constitutionally obtained.” Rutan v. Republican
Party of Ill., 497 U.S. 62, 64 (1990).

        The Court first clarified these constitutional constraints
in Elrod v. Burns, 427 U.S. 347 (1976), and Branti v. Finkel,
445 U.S. 507 (1980), holding that termination of public
employees because of their political affiliation violates the First
Amendment unless the position at issue involves policymaking.
See Elrod, 427 U.S. at 359, 373 (concluding that conditioning
public employment on support for the political party in power
“unquestionably inhibits protected belief and association”);
Branti, 445 U.S. at 513–17. In general, “an employee’s exercise
of First Amendment rights outweighs the government’s interest
in maintaining a system of political patronage.” Stephens v.
Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997) (citing Elrod, 427
U.S. at 372–73, and Branti, 445 U.S. 514–15). The exception
for “policymaking” jobs exists because political loyalty is
essential to the position itself. Boyle, 139 F.3d at 394. In Rutan,
the Court extended the Elrod-Branti doctrine, holding that the
First Amendment protects public employees not only from


                                9
politically motivated discharge, but also from promotion,
transfer, recalls, and other hiring decisions conditioned on
political affiliation, unless the government can demonstrate that
party affiliation is a proper requirement for the position. 497
U.S. at 75.

        From these general principles, we have derived a three-
part test to establish a claim of discrimination based on political
patronage in violation of the First Amendment. To make out a
prima facie case, Galli must show that (1) she was employed at
a public agency in a position that does not require political
affiliation, (2) she was engaged in constitutionally protected
conduct, and (3) this conduct was a substantial or motivating
factor in the government’s employment decision. See, e.g.,
Stephens, 122 F.3d at 176. Once she makes this demonstration,
the Commission2 may “avoid a finding of liability by proving by
a preponderance of the evidence that the same employment
action would have been taken even in the absence of the
protected activity.” Id.; see also Mt. Healthy City Sch. Dist. Bd.
of Educ. v. Doyle, 429 U.S. 274, 287 (1977). We discuss each
of these matters separately.




    2
      For the purposes of our analysis, we consider the claim
against Levin, in both her official and personal capacities,
together with the claim against the Commission, as both depend
on the prima facie case that was dismissed by the District Court.

                                10
       B.     Analysis

              1.     Political Affiliation as a Job Requirement

       As just noted, Galli must first show that she works in a
position that does not require political affiliation. This burden
of proof shifts to the government if it claims to have properly
discharged an employee because political affiliation is central to
the job itself. See, e.g., Armour, 271 F.3d at 420.

       While permitted political patronage lies in a gray area,
employers are allowed to make employment decisions based on
political affiliation when “policymaking” positions are at issue;
however, “[n]o clear line can be drawn between policymaking
and nonpolicymaking positions.” Elrod, 427 U.S. at 367. In
Brown v. Trench, our Court clarified this line by setting out
several factors that should be considered when determining
whether political affiliation is an appropriate precondition for a
government position. 787 F.2d 167, 169 (3d Cir. 1986). These
factors include whether the employee has duties that are non-
discretionary or non-technical, participates in discussions or
other meetings, prepares budgets, possesses the authority to hire
and fire other employees, has a high salary, retains power over
others, and can speak in the name of policymakers. Id. The
“key factor seems to be not whether the employee was a
supervisor or had a great deal of responsibility[,] but whether
[she] has meaningful input into decisionmaking concerning the
nature and scope of a major [] program.” Armour, 271 F.3d at


                               11
429 (citations and quotations omitted).

        The parties, of course, disagree as to whether Galli’s
position with the Commission was policymaking. She alleges
her job was not under the Brown factors because: (1) she did not
enjoy decisionmaking authority with respect to personnel
decisions (for though she was responsible for issuing
performance evaluations for three employees under her direct
supervision, she retained no power to hire, fire, or discipline
staff); (2) her budget role was that of a low-level drone,
preparing no more than informational forms that were subject to
review by the Commission’s Chief Financial Officer and to
ultimate approval by its Board; (3) she could not enter into
contracts for goods or services and was required to obtain prior
approval from the Executive Director and the Board before
implementing any policies or plans; and (4) execution and
implementation of policy decisions rested with the Board, with
her role allowing only the offer of information to her superiors.

       The Commission maintains that Galli’s responsibilities
included: supervising and managing a thirteen-person staff;
developing, sponsoring, and presenting resolutions to the
Commission to be adopted as policy; developing and
implementing environmental education programs for school
groups and the general public; preparing a budget;
recommending the hiring, promoting, and terminating of
employees (along with preparing the evaluations that
accompany these tasks); managing the construction of an


                               12
environmental museum; and communicating with government
officials, as well as public and private organizations, regarding
the Commission and its programs. Given these responsibilities,
the Commission alleges that Galli had significant authority in
managing the Environmental Education Division and
contributed to policy development; therefore, her job was a
policymaking position for which a political affiliation
requirement was appropriate.

        In deciding whether Galli established a prima facie case
at the summary judgment stage, the District Court must draw all
factual inferences in favor of her. See, e.g., Hugh, 418 F.3d at
267. With respect to the central issue under Brown—namely,
whether Galli had meaningful input into decisionmaking—the
scope of her actual influence and authority in this area is in
dispute. As such, the District Court was correct in concluding
that, with regard to the first prong of her political discrimination
claim, Galli sustained her burden of putting forward evidence
that political affiliation was not a requirement for her position
sufficient to defeat summary judgment on this element.

       2.      Constitutionally Protected Conduct

       The second hurdle for a prima facie political patronage
discrimination claim is for Galli to show that she “engaged in
constitutionally protected conduct.” See, e.g., Stephens, 122
F.3d at 176. Our Court sometimes has described this as a
requirement that “the employee maintain [] an affiliation with a


                                13
political party.” See, e.g., Goodman v. Pa. Turnpike Comm’n,
293 F.3d 655, 663–64 (3d Cir. 2002). However, the
constitutionally protected activity here is broader than the act of
joining a political party. Indeed, “[t]he threat of dismissal for
failure to provide [] support [to the party in power]
unquestionably inhibits protected belief and association, and
dismissal for failure to provide support only penalizes its
exercise.” Elrod, 427 U.S. at 359. In other words, the right not
to have allegiance to the official or party in power itself is
protected under the First Amendment, irrespective of whether an
employee is actively affiliated with an opposing candidate or
party. See Branti, 445 U.S. at 519 (holding that continued
public employment “cannot properly be conditioned upon . . .
allegiance to the political party in control”).

       Accordingly, we have held that a plaintiff can meet the
second prong of a prima facie political discrimination claim if
she suffers because of active support for a losing candidate
within the same political party. See, e.g., Robertson v. Fiore, 62
F.3d 596, 600–01 (3d Cir. 1995). In addition, we have ruled that
the First Amendment also protects an employee from
discrimination for failure to support the winning candidate. See
Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987) (stating that
“a citizen’s right not to support a candidate is every bit as
protected as his right to support one,” and quoting Roberts v.
United States Jaycees, 468 U.S. 609, 623 (1984), for the
proposition that “[f]reedom of association . . . plainly
presupposes a freedom not to associate”). Finally, and most


                                14
relevant here, we have suggested that the First Amendment
protects an employee’s failure to engage in any political activity
whatsoever. Bennis, 823 F.2d at 727 n.4 (“[W]e [] reject [the]
suggestion [] that plaintiffs’ alleged associations . . . necessarily
had to be political in order to be entitled to [F]irst [A]mendment
protection.” (emphasis in original)).3

        Despite this protection for constitutionally protected First
Amendment activity, the District Court nonetheless concluded
that Galli had no constitutional interest at stake because she did
not affiliate with a political party and was apolitical. It held that
Galli’s silence was not a form of expression, as it was “simply


   3
     District courts in our Circuit similarly have concluded that
the First Amendment protects against discriminatory
employment action targeting public employees who are
politically neutral or apolitical. See Raniero v. Antun, 943 F.
Supp. 413, 422 (D.N.J. 1996) (holding that “disinclination to
become involved with [protected activity] is protected by the
First Amendment,” and citing Rutan, 497 U.S. at 67); Christy v.
Pa. Turnpike Comm’n, 904 F. Supp. 427, 430 (E.D. Pa. 1995)
(citing Bennis, 823 F.2d at 731, for the proposition that “the
right not to politically associate is [] protected”); Conjour v.
Whitehall Township, 850 F. Supp. 309, 317 (E.D. Pa. 1994)
(stating that “the fact that [a public employee] was not
politically active . . . is not dispositive of [his] First Amendment
claim” because Bennis interpreted the Elrod-Branti doctrine to
protect against “demotions or terminations carried out to make
room for political supporters”).

                                 15
a lack of interest” in politics, which is unprotected by the First
Amendment. The Court also found it persuasive that Galli was
neither compelled to participate in the Democratic Party nor
forced to keep her true beliefs to herself.

        This misreads our interpretation of the Elrod-Branti
doctrine. A citizen’s right not to support a candidate is just as
relevant for First Amendment purposes as her right to support
one. Bennis, 823 F.2d at 731. This applies to public employees
as well. Indeed, adverse employment actions taken against
public employees merely “to make positions available for
political supporters” could amount to political discrimination.
Id.; see also Conjour, 850 F. Supp. at 317. Therefore, contrary
to the conclusion of the District Court, Galli’s failure to support
the McGreevey campaign or the Democratic Party—even if
because of a general apathy toward, or disdain for, politics—is
constitutionally protected under the First Amendment.

       That Galli was not pressured or forced to support the
McGreevey administration or the Democratic Party, or even to
silence her true beliefs, does not strip her constitutionally
protected interest vested here. “[T]here is no requirement that
dismissed employees prove that they, or other employees, have
been coerced into changing, either actually or ostensibly, their
political allegiance.” Branti, 445 U.S. at 517. In this context,
the District Court improperly imposed on Galli a coercion
requirement in order to find that she established a
constitutionally protected interest.


                                16
        Our dissenting colleague faults our analysis on the
second prong for relying on “dicta” in decisions of the Supreme
Court and our Court. With regard to Elrod and Branti, however,
our colleague appears to quarrel with the breadth with which the
Supreme Court stated its own holdings. See Elrod, 427 U.S. at
350 (stating that the question presented was “whether public
employees who allege that they were discharged or threatened
with discharge solely because of their partisan political
affiliation or nonaffiliation state a claim for deprivation of
constitutional rights,” and holding that the plaintiff public
employees could not be discharged “solely for the reason that
they were not affiliated with or sponsored by the Democratic
Party”) (emphasis added)); Branti, 445 U.S. at 519 (reaffirming
Elrod’s plurality holding and holding that “the continued
employment of an assistant public defender cannot properly be
conditioned upon his allegiance to the political party in control
of the county government”) (emphasis added)).4 Even if what
we read as the holdings of Elrod and Branti could be
characterized as dicta and therefore not binding on us, such
dicta are highly persuasive. Indeed, with regard to statements
made by the Supreme Court in dicta, “we do not view [them]
lightly.” Official Comm. of Unsecured Creditors of Cybergenics
Corp. v. Chinery, 330 F.3d 548, 561 (3d Cir. 2003). Because


    4
     Interestingly, our colleague turns to statements in Justice
Stewart’s dissent in Branti (rather than the majority’s opinion)
in an attempt to define the scope of the Court’s holding. Dis.
Op. at 13.

                               17
the “Supreme Court uses dicta to help control and influence the
many issues it cannot decide because of its limited docket,”
failing to follow those statements could “frustrate the
evenhanded administration of justice by giving litigants an
outcome other than the one the Supreme Court would be likely
to reach were the case heard there.” Id. (quoting In re
McDonald, 205 F.3d 606, 612-613 (3d Cir. 2000)). To ignore
what we perceive as persuasive statements by the Supreme
Court is to place our rulings, and the analysis that underlays
them, in peril.

        Likewise, while we are not bound by our Court’s prior
dicta, we give such statements respect consistent with their
persuasive value, see McLeod v. Hartford Life and Accident Ins.
Co., 372 F.3d 618, 628 (3d Cir. 2004), and “can, of course,
accord dicta as much weight as we deem appropriate,” New
Castle County v. Nation Union Fire Ins. Co. of Pittsburgh, 174
F.3d 338, 345 n. 7 (3d Cir. 1999). We acknowledge that our
Court in Bennis reached issues, including the nonaffiliation
issue, that were unnecessary to its conclusion in order to provide
guidance to the District Court on remand. 823 F.2d at 730.
Nonetheless, we deem its analysis persuasive and adopt the path
it suggests.

       Dicta versus holding aside, Elrod, Branti and Bennis all
stand for the proposition that a public employee, not in a
policymaking position, may not be fired for failing to support
the political party or candidate in power. Galli has presented


                               18
some evidence that she did not politically support the
Democratic Party or Governor McGreevey. Whether her failure
to support is evidenced by a decision to support a competing
candidate or party, or by a decision to be apolitical and support
no candidate or party, it is constitutionally protected.5

        Because political unaffiliation, or “failure to support” the
official or party in power, creates a constitutionally protected
interest under the First Amendment, the District Court erred in
finding that Galli did not establish this prong of her prima facie
case.


  5
    Our colleague’s suggestions that a “failure to support” must
be “close to a refusal” to support, Dis. Op. at 35, and that by
deciding to be apolitical Galli was not really “exercising” her
rights, Dis. Op. at 36, are inconsistent with well-settled First
Amendment understandings. As the Supreme Court stated in
Wooley v. Maynard, 430 U.S. 705 (1977):
   [T]he right of freedom of thought protected by the First
   Amendment against state action includes both the right to
   speak freely and the right to refrain from speaking at all.
   . . . A system which secures the right to proselytize
   religious, political, and ideological causes must also
   guarantee the concomitant right to decline to foster such
   concepts.
Id. at 714 (emphasis added). To read the First Amendment in
the current context as protecting only party affiliation or active
political activity is, in our view, to read the constitutional
protection at issue too narrowly.

                                19
              3.      Substantial or Motivating Factor

        Finally, Galli must establish that her constitutionally
protected conduct was a “substantial or motivating factor” in the
Commission’s adverse employment action. See, e.g., Stephens,
122 F.3d at 176. “[I]mplicit in th[is] prong is a requirement that
the plaintiff produce sufficient evidence to show [that] the
defendant knew of [the] plaintiff’s political persuasion,” which
requires proof of both knowledge and causation. Goodman, 293
F.3d at 664. Thus, Galli must produce evidence tending to show
that the Commission knew she was not a Democrat or supporter
of the administration and fired her as a result. Stephens, 122
F.3d at 177.

                      a.     Knowledge

       The District Court concluded that the Commission did
not know enough of Galli’s political affiliation to incur liability
because she did not make her political proclivities known and
her supervisors and colleagues did not make any inquiries about
her political views. But this inquiry does not depend on whether
Galli made her political views known to the Commission; rather,
it is whether the Commission was aware that Galli failed to
show public support for its officials and the political party in
power. Here, Galli has offered ample evidence to bolster her
claim that the Commission did not consider her to be a supporter
of the current administration or party in power. For example,
Galli’s deposition testimony indicates that, following her


                                20
termination, Commissioner Nissley allegedly stated that the
Commission was “letting Republicans go,” that “some Democrat
[obviously] wants the spot,” and that one has to “pay to play
with this administration.” App. at Pa-431–33. These statements
permit an inference that the Commission did not perceive Galli
to be a supporter of McGreevey’s administration or affiliated
with the Democratic Party.

       Galli also has provided support for her claim that other
politically motivated terminations occurred alongside her own.
Indeed, Executive Director Ceberio acknowledged that he knew
that Galli, as well as the other ten members discharged from the
Commission, were all appointed or hired during Republican
administrations, which supports her allegation that employees
who were politically unconnected to the McGreevey
administration were forced out. In addition, Galli submits that
she and the other unaffiliated or Republican-appointed
employees who were discharged were replaced by eighteen
employees who were affiliated with the McGreevey campaign
or Democratic Party in some way. This supports the contention
that knowledge of Galli’s failure to support the administration
was a substantial or motivating factor in her (and the other
employees’) termination.

        Viewing the facts in the light most favorable to Galli, as
we must at the summary judgment stage, a jury could conclude
that the Commission believed that she was not supportive of the
McGreevey administration. This satisfies all the knowledge


                               21
required for Galli to make her case.

                      b.      Causation

       Because the District Court found that the Commission
did not know of Galli’s lack of support for the McGreevey
administration, the Court did not consider the causation element
of the prima facie test. Before us, the Commission argues that
the cause for Galli’s termination was her poor performance, not
her lack of political affiliation. It singles out Galli’s ostensible
mishandling of a new museum project, which it alleges was
over-budget, delayed, and ultimately removed from Galli’s
scope of authority. In addition, the Commission submits that a
Commission-wide reorganization, initiated to increase the
organization’s efficiency and economic health, triggered the
terminations that Galli claims were politically motivated.

       To demonstrate causation, Galli argues that her
successor, and those replacing her terminated colleagues, were
unqualified Democrats who were active in the McGreevey
campaign or the Democratic Party. She specifically highlights
Mercurio’s lack of qualifications for the position Galli held,
noting that Mercurio formerly was a tax attorney with no
background in environmental issues. What Mercurio did do,
however, was run on the Democratic ticket twice, at the urging
of the party, in races that she was widely expected to lose. In
addition, Galli points out the odd timing of her discharge and
Mercurio’s hiring, alleging that Mercurio was offered Galli’s job


                                22
before the latter was even informed of her termination. Galli
also disputes the Commission’s allegations of poor work
performance, claiming that she never received negative
feedback from her superiors, even at the time of termination;
indeed, as mentioned above, the Environmental Education
Division’s work under Galli’s leadership garnered an award of
excellence that was, ironically, bestowed shortly after she was
fired. Finally, Galli submits that the supposed reorganization of
the Commission, allegedly undertaken to promote economic
efficiency, was not only curiously undocumented, but also
undermined by its decision to hire even more employees
(eighteen) than it fired (eleven) in the name of streamlining.

        Once again, viewing the facts in the light most favorable
to Galli, it would be premature to grant the Commission
summary judgment on the causation issue. Because Galli’s
evidence contradicts the Commission’s allegation that her work
performance was subpar, and because she offers evidence from
which a reasonable juror could conclude that her lack of
political affiliation was a substantial factor in her termination,
Galli has alleged enough to proceed with her causation theory
and, therefore, has established the third prong of her prima facie
claim.6


    6
     We are perplexed by our colleague’s suggestion that our
decision somehow discourages political participation. He posits
that an individual may decide not to join a political party
because government officials may be reluctant to hire that

                               23
IV.    Conclusion

       We hold that the First Amendment protects politically
neutral or apolitical government employees from political
patronage discrimination. In addition, we conclude that Galli
put forward sufficient evidence to create an issue of material
fact regarding whether the Commission knew of her political
unaffiliation and fired her because of it. We, of course, make no
prediction as to whether Galli will succeed in her claim, but we
are satisfied that she has presented a prima facie case. As a
result, we vacate the District Court’s grant of summary
judgment to the Commission, as well as to Commissioner Levin,
and remand this case for further proceedings.




person to replace an apolitical employee for fear of litigation.
Such fear and reluctance would be unfounded. It is not enough
for a non-policymaking apolitical employee simply to show that
she was replaced by someone with a party affiliation; to make
a prima facie case, an employee must present evidence that her
failure to support the party or candidate in power was a
“substantial or motivating factor” in the adverse employment
decision. Galli has sustained that initial burden in this case.

                               24
       Galli v. New Jersey Meadowlands Commission

                         No. 05-4114




BAYLSON, District Judge, dissenting.

        I respectfully dissent from the majority’s opinion and
would affirm the grant of summary judgment to the
Defendants, because controlling decisions of the Supreme
Court, and prior decisions of this Court, do not compel the
result reached by the majority. The decision in this case is an
unwise extension of the scope of constitutionally-based but
judicially created protection from politically motivated
adverse employment decisions, to which state employees are
entitled.

       It is undisputed that Galli did not have any political
party affiliation, and kept her political beliefs, if any, to
herself. Under these facts, to grant Galli the same protection
against adverse employment action that prior decisions have
granted to politically active public employees, ignores the
fundamental nature of the constitutional right being protected.
Under the holdings of the Supreme Court and this Court, a
public employee who exercises his or her political beliefs may
not be punished for doing so. The majority, however, relies
exclusively on dictum. Indeed, in this area of the law, like a


                              25
cloud enshrouding a skyscraper, dictum has disguised the
actual holdings of the case precedents. The public employee
who chooses to remain non-political, or apolitical, or silent,
has, by definition, not “exercised” political rights and
therefore cannot claim the same constitutional protection from
adverse employment decisions.

         In the pages that follow, I will first demonstrate that
the specific holdings of the Supreme Court’s precedents, and
our own precedential opinions in this area, do not require the
result reached by the majority, and that the District Court’s
grant of summary judgment was correct under the undisputed
facts and controlling law. I will then show that the majority’s
extension of current law will pose many difficulties to
litigants and district judges trying to apply this new rule, and
that it is not wise on policy grounds.

        I recognize that the result of this analysis will
necessarily appear unfair to the discharged employee.
However, the result reached by the majority, which essentially
promises lifetime job protection to any apolitical state
employee who is able to persuade a jury that an adverse
employment decision was a result of politics – however vague
that standard sounds, and it is a vague standard – puts courts
in the unenviable, and improper, position of delving into First
Amendment activity and beliefs, and whether such protected
conduct was the motive for an employment action. Although
Congress or a state legislature could clearly give courts that


                               26
power, we judges should not give it to ourselves.

I.     The Majority’s Result Is Not Required by
       Precedent

       A.     Supreme Court Decisions

        The Supreme Court first outlined a balancing test
weighing the First Amendment rights of government
employees against the State’s interest as an employer in
Pickering v. Board of Education, 391 U.S. 563 (1968). Of
importance was the citizen’s interest, not just an abstract
interest in the freedom to speak, but rather the freedom of
public employees to engage in open public debate on subjects
of public concern balanced against the government’s interest
in the effective and efficient provision of public services. Id.
at 568. In Pickering, a public school teacher in Illinois was
dismissed after writing a letter critical of the school board and
superintendent for the handling of a bond issue and
subsequent allocation of financial resources between
academic and sports programs, and sued, alleging a violation
of civil rights. Id. at 566. Recognizing the impracticality of
constructing a general standard, the Court nevertheless
indicated the “general lines along which an analysis of the
controlling interests should run.” Id. at 569.

      The Court first looked to what impact Pickering’s letter
may have had on the efficient running of the schools. Two


                               27
important factors weighed against the school board on this
point. First, to the extent the letter contained truthful
statements on matters of public concern, it criticized the
School Board and the superintendent, people with whom
Pickering had no regular direct communication. As such,
there was no threat to workplace discipline or harmony
resulting from his criticism. Thus, that the statements were
critical in tone could not justify Pickering’s termination. Id.
at 570. Second, as to the false statements in the letter, the
Court noted the apathy with which the public greeted it. Id. at
570-571. Rejecting the School Board’s claim that the false
statements were harmful per se,7 the Court expressly
distinguished between “the Board members’ own interests
with that of the schools.” Id. at 571. With this in mind, the
Court characterized Pickering’s criticism as a difference of
opinion on how public money should be spent on the public
school. Id. Moreover, since the letter was published after the
bond issue had been approved, Pickering airing his opinion


   7
     Just as the Court disagreed with Pickering that the normal
defamation standard should apply to him, only holding him
liable for statements which he knew to be false, or the falsity of
which he recklessly disregarded, Pickering, 391 U.S. at 569, the
Court also did not credit the School Board’s analogy to the law
of libel. Id. at 570-571. While the reasoning for this is only
expressed in the discussion of Pickering’s defamation argument,
it seems to apply to both situations; namely, the competing
interests of public employee as citizen and government as
employer must be balanced.

                               28
could not have prevented the School Board from acquiring
and using the funds as it saw fit. Id.

        After reviewing the case from the perspective of the
School Board’s interests as employer – and finding little to
support the Board’s position – the Court moved to the other
side of the scale: the constitutional and democratic values at
stake in limiting speech. Here, the Court focused on the value
the public derives from allowing open debate. When it comes
to the administration of public schools, “free and open debate
is vital to informed decision-making by the electorate.” Id. at
571-572. Moreover, “Teachers are, as a class, the members of
a community most likely to have informed and definite
opinions as to how funds allotted to the operations of the
schools should be spent.” Id. at 572. Thus, it is the interest of
the public in free speech that determines the balance in the
Pickering test. Id. (“Accordingly, it is essential that [teachers]
be able to speak out freely on such questions without fear of
retaliatory dismissal.”)

       The first Supreme Court case specifically addressing
allegedly politically motivated dismissals is Elrod v. Burns,
427 U.S. 347 (1976). The district court had granted a motion
to dismiss the complaint under Rule 12(b)(6), so the factual
setting was confined to the well-pleaded allegations of the
complaint. The facts alleged in the complaint concerned
employees within the Cook County, Illinois Sheriff’s Office,
who claimed that they were all Republicans and had been


                               29
discharged, or threatened with discharge, because the
incoming elected Sheriff of Cook County was a Democrat,
and in accordance with long-standing practice, when the
elected Sheriff was of a different political party than his
predecessor, all the employees not of the same political party
as the Sheriff were discharged.

       Although Elrod is often cited for the proposition that
political patronage dismissals are unconstitutional under the
First and Fourteenth Amendments, the actual holding is more
limited. The plurality opinion8 first notes that the question to
be decided was as follows:

        This case presents the question whether public
        employees who allege that they were discharged
        or threatened with discharge solely because of
        their partisan political affiliation or
        nonaffiliation state a claim for deprivation of
        constitutional rights secured by the First and
        Fourteenth Amendments.

Id. at 349. However, it can be immediately seen that dictum,
with the reference to “nonaffiliation,” has crept into the
plurality opinion, because it is clear from the facts that all of
the plaintiffs alleged that they were Republicans, and thus


    8
    The plurality opinion in Elrod was authored by Justice
Brennan, on behalf of himself, and Justices Marshall and White.

                                30
admittedly had political affiliation.9

        Justice Brennan begins his analysis by identifying “the
constitutional limitations implicated by a challenged
governmental practice.” Id. at 355. As in Pickering, although
not explicitly relying on that decision for the point, the import
of restrictions on belief and association lies in the fact that
“[t]he free functioning of the electoral process also suffers.”
Elrod, 427 U.S. at 356 (“Patronage thus tips the electoral
process in favor of the incumbent party, and where the
practice’s scope is substantial relative to the size of the
electorate, the impact on the process can be significant.”).
Thus, the reason for safeguarding public employees’ rights to
free speech and association derive from “our profound
national commitment to the principle that debate on public
issues should be uninhibited, robust and wide-open.” Id. at
357 (quoting N. Y. Times Co. v. Sullivan, 376 U.S. 254, 270
(1964)).


   9
   The plurality opinion recited these facts:
      In December 1970, the Sheriff of Cook County, a
      Republican, was replaced by Richard Elrod, a
      Democrat.      At that time, respondents, all
      Republicans, were employees of the Cook County
      Sheriff’s Office. They were non-civil-service
      employees and, therefore, not covered by any
      statute, ordinance, or regulation protecting them
      from arbitrary discharge.
427 U.S. at 350.

                                31
       The plurality’s opinion looked at this practice of
political patronage, finding it unnecessary to efficient
governance and an affront to democratic values:

       In summary, patronage dismissals severely
       restrict political belief and association. Though
       there is a vital need for government efficiency
       and effectiveness, . . . [t]hat interest can be fully
       satisfied by limiting patronage dismissals to
       policymaking positions. . . . More
       fundamentally, however, any contribution of
       patronage dismissals to the democratic process
       does not suffice to override their severe
       encroachment on the First Amendment
       freedoms.”

Id. at 372-373.

        However, it is important to recall that the above
statement only represented the views of a three-judge
plurality. Justice Stewart, joined by Justice Blackmun,
concurred in the judgment in a five-sentence opinion, as
follows:

       Although I cannot join the plurality’s wide-
       ranging opinion, I can and do concur in its
       judgment. This case does not require us to
       consider the broad contours of the so-called


                                32
       patronage system, with all its variations and
       permutations. In particular, it does not require
       us to consider the constitutional validity of a
       system that confines the hiring of some
       governmental employees to those of a particular
       political party, and I would intimate no views
       whatever on that question. The single
       substantive question involved in this case is
       whether a nonpolicymaking, nonconfidential
       government employee can be discharged or
       threatened with discharge upon the sole ground
       of his political beliefs. I agree with the plurality
       that he cannot. Perry v. Sindermann, 408 U.S.
       593, 597-598 (1972).

Elrod, 427 U.S. at 374-375 (Stewart, J., concurring).10

        Elrod’s broad plurality statement, “we hold, therefore,
that the practice of patronage dismissal is unconstitutional
under the First and Fourteenth Amendment,” is not the
holding of a majority of the Court. In any event, the
discussion shows that the plurality was focusing on
individuals whose political views were well known and/or had
engaged in political activity.


  10
    Perry holds that a state government may not deny a benefit
to a person on a basis which infringes a constitutionally-
protected interest.

                               33
        Elrod recognized that there must be a distinction for
policymaking employees, which exception itself points out
necessary limits of the judicial exercise into defining the
scope of the constitutional right being protected. The
exception carved out for policymaking officials provides the
balancing-test formulation of the rule. Clearly weighing some
governmental interests and allowing patronage-based hiring
and firing for policymaking employees against the personal
constitutional interests of those employees, the plurality
stated, “The justification is not without force, but is
nevertheless inadequate to validate patronage wholesale.
Limiting patronage dismissals to policymaking positions is
sufficient to achieve this governmental end.
Nonpolicymaking individuals usually have only limited
responsibility and are therefore not in a position to thwart the
goals of the in-party.” Id.11

        Next, in Branti v. Finkel, 445 U.S. 507 (1980), a
majority of the Court revisited and relied on both the plurality
and concurring opinions in Elrod. Plaintiffs were two
assistant public defenders who brought an action under the
civil rights laws alleging that they were about to be

  11
    I agree with the District Court and the majority that Plaintiff
had presented sufficient evidence to require a trial on the issue
of whether her position was policymaking or not. However, that
question would not be reached if the district court’s granting of
summary judgment was proper on the grounds that plaintiff, as
apolitical, was not entitled to protection under governing law.

                                34
discharged solely because they were Republicans. The
district court entered a temporary restraining order to preserve
the status quo, and then took evidence and made detailed
findings of fact, following which it permanently enjoined the
Public Defender of Rockland County, New York from
terminating or attempting to terminate the plaintiffs’
employment upon the sole grounds of their political beliefs.
The district court made a specific finding that one plaintiff
had been regarded as a Republican, notwithstanding a formal
change of registration, and found that the plaintiffs “had been
selected for termination solely because they were Republicans
and thus did not have the necessary Democratic sponsors.”
See 445 U.S. at 510 (citing Finkel v. Branti, 457 F. Supp.
1284, 1293 (S.D.N.Y. 1978)).

       In Branti the district court had found:

       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 (cited at 445 U.S. at 510).



                                35
       The six justice majority in Branti also relied on Perry
v. Sindermann, as well as Pickering, and noted the two
different opinions which constituted a majority of the Court in
Elrod. The Court analyzed the contentions of the Public
Defender which attempted to limit the holding of Elrod, but
held that under Elrod, considering the opinions of both Justice
Brennan and Justice Stewart, “the First Amendment prohibits
the dismissal of a public employee solely because of his
private political beliefs.” Branti, 445 U.S. at 517-518. The
Court then stated:

       In sum, there is no requirement that dismissed
       employees prove that they, or other employees,
       have been coerced into changing, either actually
       or ostensibly, their political allegiance. To
       prevail in this type of an action , it was
       sufficient, as Elrod holds, for respondents to
       prove that they were discharged “solely for the
       reason that they were not affiliated with or
       sponsored by the Democratic Party.”

Branti, 445 U.S. at 517 (quoting Elrod, 427 U.S. at 350).

        Although the broad nature of the above statement
might seem to encompass an unaffiliated state employee such
as Galli, it must be remembered that in the facts of Branti, as
well as in the facts of Elrod, the political registration of the
plaintiffs was well known, whereas in this case, it is


                               36
undisputed that Galli has no political registration, has not
expressed any political views, and although registered to vote,
she did not align herself as belonging to any political party.

        The evidence in Branti discloses that when the Public
Defender was appointed, he began instituting termination
notices for six of the nine assistants in his office, including the
two plaintiffs, and, as the Court stated, “With one possible
exception, the nine who were to be appointed to be retained
were all Democrats and were all selected by Democratic
legislatures or Democratic town chairman on a basis that had
been determined by the Democratic caucus.” 445 U.S. at
509-510. The record also showed that the two plaintiffs were
Republicans.

        Like a bright moon against the dark sky, Elrod and
Branti are distinctly in contrast to the present case, where
Galli’s political affiliation is completely unknown. The
record in the present case does not contain any facts closely
similar to those in Elrod or Branti. The record only shows
that when she was originally hired in 1984, the government at
that time was controlled by Republicans. (App. Pa. 14; 127.)
There is no evidence about Galli’s own political beliefs.

       Maintaining the Pickering balancing test, the Court in
Branti found that unless the government can demonstrate an
overriding interest in doing so, it cannot rely on a person’s
private beliefs as “the sole basis for depriving him of


                                37
continued public employment.” Id. at 515. However, as
Justice Stewart noted in his dissent, while the Branti majority
characterized the case as dealing with private political beliefs,
the public defenders were dismissed because of their public
affiliation with the Republican party. Id. at 522 n. * (Stewart,
J., dissenting). Thus, the specific facts of the two leading
political patronage cases, Elrod and Branti, in which state
employees with known political affiliations were ousted from
their positions upon the election of a new administration, belie
the broad language used by Justices Brennan and Stevens,
respectively.

        Furthermore, as in Elrod, examination of Branti’s
other important holding, the refinement of the policymaker
exception, reveals that patronage dismissal cases involve
protecting the rights of speech and association for the benefit
of the public, not merely to assert the primacy of First
Amendment rights. Branti redefined the policymaking
distinction stating, “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. Applying this standard,
although a public defender implements policies, since those
policies “relate to the needs of individual clients and not to
any partisan political interests,” the governmental interest of
the effective performance of the public defender’s job weighs


                               38
against patronage. Id. at 520-521. As in Elrod, the fact that
patronage threatens the employee’s rights to free speech and
association serves as the reason for invoking the Pickering
test.

        The last of the Supreme Court’s trilogy, Rutan v.
Republican Party of Illinois, 497 U.S. 62 (1990), extended the
rule of Elrod and Branti to other employment decisions based
on political considerations, such as promotion, transfer, recall
and hiring decisions involving low-level public employees.
The opinion by Justice Brennan, in the first paragraph,
specifically notes that these factors may not be
“constitutionally based on party affiliation and support.”
Rutan, 497 U.S. at 65. There is no holding in the Rutan
decision which would cover a state public employee such as
Galli, who had no political affiliation and did not speak or act
in any way in political matters.

       The majority admits that the language in Elrod and
Branti is broader than necessary for the outcomes, based on
the facts of those cases. However, the majority fails to
address the indisputable point that the facts of those cases, as
well as the facts giving rise to subsequent Third Circuit
precedent, reflect active political opposition on the part of the
adversely affected employees, or at least some kind of
affirmative choice not to affiliate with the political faction in
power. Thus, the majority asserts the broad language in Elrod
and Branti constitutes the essential holdings of those cases,


                               39
without acknowledging that such broad rights cannot emanate
from the particular facts in either case.

        The majority’s treatment of Elrod, for example,
emphasizes that “public employees could not be discharged
‘solely for the reason that they were not affiliated with or
sponsored by the Democratic Party.’” Maj. Op. at 17
(quoting Elrod, 427 U.S. at 350 (emphasis added in Majority
Opinion)). Not mentioned by the majority, nor explained
away, however, is the fact that the Elrod plaintiffs were
registered Republicans, and were required by their employer
to earn the sponsorship of a Democratic Party member to keep
their jobs. Id. at 351.

        The majority also ignores that the Supreme Court in
Elrod and Branti did not have to discuss the employees’
political activity and affiliation because they were not in
dispute; therefore the Supreme Court focused on the type of
job, and the employment actions taken by the government
employer (as in Rutan). For instance, the government
employer in Branti never argued that party affiliation does not
constitute speech or association, but rather that party
affiliation as a job requirement would not run afoul of what it
considered to be Elrod’s ban against coercing a particular
affiliation. See Branti, 445 U.S. at 512.

     The majority defends its use of Supreme Court dicta.
However, it is one thing for the Supreme Court to use its own


                              40
dicta to explain the rationale for its subsequent decisions, but
it is another thing for a court of appeals to take Supreme
Court dicta and use it to extend the precedents of both the
Supreme Court and of this Circuit. Indeed, the reason
appellate courts follow Supreme Court dicta is precisely so as
not to “strike off on their own.” In re McDonald, 205 F.3d
606, 612 (3d Cir. 2000) (quoting United States v. Bloom, 149
F.3d 649, 653 (7th Cir. 1998)). Applying prior dicta to this
case, with facts the Supreme Court has not addressed, would
frustrate, rather than further, this goal. See Official Comm. of
Unsecured Creditors of Cybergenics Corp. v. Chinery, 330
F.3d 548, 561 (3d Cir. 2003) (noting the admonition in In re
McDonald, but stating, “[n]evertheless, we are satisfied that
the case at bar is not the situation the [Supreme] Court’s
dictum anticipated.”)

       The majority relies on Wooley v. Maynard, 430 U.S.
705 (1977), to justify its interpretation of Elrod and Branti. A
close inspection of Wooley, however, shows that it is no more
helpful to illuminate the current issue than Elrod or Branti.
Although Wooley was argued only four months after Elrod
was decided, and the opinion issued within ten months of the
Elrod decision, Elrod is not once mentioned in Wooley. The
facts of Wooley reveal that the case has nothing to do with
political patronage. In Wooley the appellees brought an action
in federal district court to challenge the state of New
Hampshire’s requirement that all automobile licence plates
carry the motto “Live Free or Die” while also making it a


                               41
misdemeanor to obscure any figures or letters on the plate,
including the state motto. Id. at 707. Appellee Maynard was
a Jehovah’s Witness who objected to the content of the New
Hampshire state motto on both religious and political
grounds. Id. at 708. Pursuant to these beliefs, Maynard and
his wife covered the motto as it appeared on their license
plates. Id. at 707-08. Accordingly, the Supreme Court was
“faced with the question of whether the State may
constitutionally require an individual to participate in the
dissemination of an ideological message by displaying it on
his private property in a manner and for the purpose that it be
observed and read by the public.” Id. at 713.

        Wooley relies heavily on West Virginia Bd. of Educ. v.
Barnette, 319 U.S. 624 (1943), for its conclusion about the
right to refuse to speak. In Barnette, the Court affirmed the
district court’s enjoining West Virginia from enforcing a law
requiring students and teachers to recite the flag salute as to
Jehovah’s Witnesses, who claimed saluting the flag
constituted an act forbidden by their faith. The form of
silence protected by Barnette is purposeful rather than
passive. Wooley’s own facts, as well as its reliance on
Barnette, illustrates how factually distinct the present case is
from precedent relied on by the majority.

       B.     Third Circuit Decisions

              1.     Bennis v. Gable


                               42
       In the case on which Judge Ambro most directly relies,
Bennis v. Gable, 823 F.2d 723 (3d Cir. 1987), the plaintiffs
had successfully challenged their demotion on the Allentown
police force by a civil rights suit filed in federal district court,
claiming they were demoted either in retaliation for
supporting the mayor’s political opponent, or in order to make
room for the Mayor’s supporters. Plaintiffs Bennis and
MacLean were hired by the City of Allentown as police
officers in 1974 during the administration of Mayor Daddona,
a Democrat. Id. at 725. MacLean claimed to have known the
mayor and his chief of police, Gable. Bennis claimed that his
family had been neighbors and early supporters of Mayor
Daddona. Both plaintiffs supported the Republican candidate
for mayor in a successful bid to unseat Daddona in 1977. Id.

       In 1979 Bennis was selected out of a pool of fifteen
applicants for promotion to one of two detective-sergeant
positions then available; MacLean was promoted to detective-
sergeant in 1981 after assisting the detective bureau in a
homicide investigation. Id. Also in 1981, Daddona obtained
the Democratic nomination for the mayoralty, and was
reelected in the November general election. Id. The plaintiffs
claimed to have supported Dadonna’s opposition in both the
primary and general elections. Id. After the election Gable
returned as chief of police, and at the direction of Dadonna he
prepared recommendations for changes in the police
department including demotions and reassignments. Id. at
726. Most of Gable’s recommendations were accepted, and


                                43
of the nine recommended demotions, six were carried out. Id.
Bennis and MacLean were among those demoted. Id.

        After a six-day trial, the district court instructed the
jury that the plaintiffs had the burden to establish that their
activity was entitled to First Amendment protection. Id. at
727. The district court also instructed the jury that the court
had concluded that the activities engaged in by the plaintiffs
were protected by the First Amendment as a matter of law.
Id.

        On appeal, defendants challenged, inter alia, the
district court’s telling the jury “as a matter of law that the
plaintiffs Bennis and MacLean engaged in protected first
amendment activity” when they opposed Daddona in both the
1977 and 1981 campaigns, arguing that “the nature of the
plaintiffs’ alleged private conversations and associations, if
any, were controverted questions of fact.” Id. Plaintiffs
responded that defendants had not properly raised this issue at
trial so as to preserve it for appeal. Id. This Court held “the
defendants’ objection was sufficient to put the district court
on notice that the nature of plaintiffs’ activity, if any, was a
disputed issue of fact,” id. (emphasis in original), the district
court had erred in telling the jury that plaintiffs had engaged
in protected First Amendment activity as a matter of law, and
remanded for a new trial. Id. at 725. Because the conflicting
testimony as to the nature of plaintiffs’ speech or conduct
represented an issue of fact, the court’s opinion stated, “[o]nly


                               44
after the jury had determined the nature and substance of the
plaintiffs’ alleged activity could the court decide its status as
protected or unprotected.” Id. at 729. After a careful reading
of Bennis, its only holding is that the district court had
“impermissibly trespassed upon the jury’s fact-finding
function . . . .” by concluding that plaintiffs had engaged in
prohibited First Amendment activity. Id. at 725.12

         Despite recognizing the narrowness of the issue before
it, the court’s decision opines on other issues. See id. at 730
(“Although our conclusion that the district court committed
reversible error in its instruction on protected activity makes it
unnecessary for us to reach many of the issues raised by the
defendants, some of these issues are almost certain to recur on
remand in the district court.”).

       The majority admits that the decision in Bennis
“reached issues, including the nonaffiliation issue, that were
unnecessary for its conclusion in order to provide guidance to
the district court on remand.” Maj. Op. at 18. Nonetheless,
the majority relies on Bennis as support for its decision in this

       12
         Bennis holds that the protection against politically
motivated dismissals established in Pickering, Elrod, and Branti
extends to demotions, as were at issue in Bennis. Id. at 731.
“As we read those cases, the constitutional violation is not in the
harshness of the sanction applied, but in the imposition of any
disciplinary action for the exercise of permissible free speech.”
Id. (thus anticipating Rutan).

                                45
case. Bennis discusses whether defendants could have
demoted the plaintiffs simply to make positions available for
political supporters, rather than as retribution for the
plaintiffs’ active political opposition. Considering a demotion
for such a reason as reflecting “a failure to support,” id. at
731, the court stated, “A citizen’s right not to support a
candidate is every bit as protected as his right to support one.”
Id. (citing Roberts v. United States Jaycees, 468 U.S. 609
(1984)).13 Judge Ambro relies on this quote, and a footnote in
Bennis, to expand the concept of “failure to support” to
include protection for apolitical employees. In relevant part,
the footnote states:

         [W]e also reject the defendants’ suggestions that
         plaintiffs’ alleged associations were not political
         because the plaintiffs were opposing a fellow
         Democrat, and that the plaintiffs’ associations
         necessarily had to be political in order to be
         entitled to first amendment protection. The first
         amendment protects the “right to associate with
         others in pursuit of a wide variety of political,

    13
      Bennis continues with several other points which are of
limited, if any, relevance to the present case on the particular
subject of this memorandum. These are the appropriateness of
the district court’s charge that plaintiffs had to prove that
politics was a ‘substantial motivating factor’ in their demotion,
whether the defendants were entitled to qualified immunity, and
the availability of punitive damages.

                                 46
       social, economic, educational, religious, and
       cultural ends.’ Roberts v. United States Jaycess,
       468 U.S. at 622. Of course, only the right to
       associate for political purposes is at issue in this
       case.

Bennis, 823 F.2d at 727 n. 4. The sentence and footnote in
Bennis, quoted above, were made in the context of plaintiffs
who specifically alleged their own partisan political activity
was the reason for their demotion. Indeed, the Bennis court
expressly noted “only the right to associate for political
purposes is at issue,” and not the larger issue of nonpolitical
speech or association. Thus, the statement and footnote, in
the context of the Bennis facts and holdings, do not expand
protections beyond actual speech or actual association for
political purposes.

       In any event, such discussions are dictum.

       It is not everything said by a judge when giving
       judgment that constitutes a precedent. In the
       first place, this status is reserved for his
       pronouncements on the law . . . . The second
       reason . . . is that, among the propositions of law
       enunciated by him, only those which he appears
       to consider necessary for his decision are said to
       form part of the ratio decidendi and thus to
       amount to more than an obiter dictum.


                               47
United States v. Warren, 338 F.3d 258, 266 n. 5 (3d Cir.
2003).14

       Although Bennis cites Roberts, Roberts does not hold
or imply that silence is a First Amendment right protecting
state employees from termination. That case involved a
challenge by the United States Jaycees against the application


   14
      The Third Circuit has clearly adopted a rule that dicta are
not binding on courts. “As the Supreme Court noted in the
course of its discussion of ancillary jurisdiction in Kokkonen v.
Guardian Life Ins. Co. of America, ‘[i]t is to the holdings of . .
. cases, rather than their dicta, that we must attend.’” IFC
Interconsult, AG v. Safeguard Intern. Partners, LLC, 438 F.3d
298, 311 (3d Cir. 2006) (quoting Kokkonen, 511 U.S. 375, 379,
(1994)); Marianna v. Fisher, 338 F.3d 189, 201 (3d Cir. 2003)
(“It is also well established that a subsequent panel is not bound
by dictum in an earlier opinion”); Burstein v. Ret. Account Plan
For Employees of Allegheny Health Educ. and Research Found.,
334 F.3d 365 (3d Cir. 2003) (“[T]he language . . . on which the
district court relied constitutes dictum, and therefore does not
bind us.”); Gov’t of Virgin Islands v. Fonseca, 274 F.3d 760 (3d
Cir. 2001) (discussion not part of the holding is dicta, and not
precedential); American Civil Liberties Union of New Jersey ex
rel. Lander v. Schundler, 168 F.3d 92, 98 n.6 (3d Cir. 1992)
(“[W]e have repeatedly held that dicta are not binding.” (citing
McGurl v. Trucking Employees, 124 F.3d 471, 484 (3d
Cir.1997); United States v. Bennett, 100 F.3d 1105, 1110 (3d
Cir.1996); Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064,
1071 (3d Cir.1990)).

                               48
of a Minnesota law barring discrimination on the basis of sex
in places of public accommodation. See Roberts, 468 U.S. at
612 (“This case requires us to address a conflict between a
States’s efforts to eliminate gender-based discrimination
against its citizens and the constitutional freedom of
association asserted by members of a private organization.”).
The Court identified “intrinsic and instrumental features of
constitutionally protected association,” concluding that the
protections afforded freedom of association would differ in
nature and degree, depending on whether freedom of
“intimate association” or “expressive association” was
implicated. Id. at 618. Finding the Jaycees to be an
“expressive association,” the Court held Minnesota’s interest
in eliminating discrimination outweighed the Jaycees’ interest
in its freedom not to associate with women. Id. at 623. The
broad language in Roberts declaring, “[f]reedom of
association therefore plainly presupposes a freedom not to
associate,” id., does not refer to the freedom an individual has
not to join a group, but rather the freedom a group has to deny
membership to an individual or class of individuals.15 The

     15
       In fact, the distinction drawn in Roberts between the
intrinsic and instrumental features of association echoes the
point made in Branti about the rationale behind denying
protection from patronage dismissals to policymaking
employees. Indeed, to the extent that Roberts is relevant to the
instant case at all, it is because the Supreme Court has
determined that the freedom of expressive association which
Galli asserts has been infringed is subject to greater restriction

                               49
case has nothing to do with protecting silent or apolitical state
employees.16


than if she were to assert infringement of an intimate
association.
       16
          The Supreme Court has relied on Roberts for the
appropriate test to apply to government interference in the
membership of associations which are either “intimate” or
“expressive”. Boy Scouts of America v. Dale, 530 U.S. 640
(2000) (citing Roberts for the proposition that “[g]overnment
actions that unconstitutionally burden that right [of association]
may take many forms, one of which is intrusion into a group's
internal affairs by forcing it to accept a member it does not
desire.”); Board of Directors of Rotary Int’l v. Rotary Club of
Duarte, 481 U.S. 537 (1987) (relying on the Roberts rule to
deny Rotary International’s right to exclude women from local
clubs). This Court has understood Roberts similarly. Forum for
Academic and Institutional Rights v. Rumsfeld, 390 F.3d 219 (3d
Cir. 2004) (Ambro, J.) (employing Roberts to balance the right
of an association to bar particular individuals or classes as part
of the association’s expressive agenda against a compelling state
interest to infringe on that right); Pi Lambda Phi Fraternity, Inc.
v. Univ. of Pittsburgh, 339 F.3d 435 (3d Cir. 2000)
(summarizing the Roberts distinction between intimate and
expressive associations, describing protection of the former as
a fundamental personal liberty and protection of the latter as an
indispensable means of preserving other personal liberties);
Salvation Army v. Dep’t of Comty. Affairs, 919 F.2d 183 (3d Cir.
1990) (same); Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.
1998) (finding relationship between plaintiff and her brother-in-

                                50
              2.     Stephens v. Kerrigan

        In Stephens v. Kerrigan, 122 F.3d 171 (3d Cir. 1997)
(reversing grant of summary judgment where the court finds
question of material fact as to whether defendants knew of
plaintiff police officers’ political affiliations, and whether
such knowledge was a substantial motivating factor in the
officers’ discharge), the district court framed the question
before it as whether the City of Allentown and its officers
impermissibly denied promotions to police officers who
“openly opposed or failed to support” the candidacy of the
eventual mayor of Allentown. Id. at 172. However, in
reversing the district court’s grant of summary judgment, the
Third Circuit relied on evidence in the record indicating
active support for one candidate or the other. As the court
pointed out,

       In this case, there is evidence that the political
       affiliations of the members of the Police
       Department constituted more than workplace
       rumor; the heated and contentious debate over
       the endorsement of Heyd for Mayor drew clear
       lines between those who supported Heydt and
       those who did not.




law does not represent an intimate association requiring
protection).

                               51
Id. at 177. Thus, notwithstanding the court’s repetition of the
dictum in Bennis that “a citizen’s right not to support a
candidate is every bit as protected as his right to support one,”
id. at 176 (quoting Bennis, 823 F.2d at 731), the facts of
Stephens show that the police officers opposed the winning
candidate.17

                 3.     Goodman v. Pa. Tpk. Comm’n

        The most recent Third Circuit case on this topic is
Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655 (3d Cir. 2002).
In this political patronage case, the court upheld a jury verdict
in favor of the plaintiff, as well as the district court’s denial of
defendants’ motions for judgment as a matter of law and for a
new trial. Id. at 677-678. The Third Circuit first summarized
what it termed the Supreme Court’s “trilogy” of political
patronage cases, Elrod, Branti and Rutan, before recounting
the three-prong test relied upon by the district court in the
instant action:

          (1) that the employee works for a public agency
          in a position that does not require a political
          affiliation, (2) that the employee maintained an
          affiliation with a political party, and (3) that the
          employee’s political affiliation was a substantial


     17
     The legal standard articulated in Stephens is discussed
below.

                                  52
        or motivating factor in the adverse employment
        decision.

Goodman, 293 F.3d at 663 (quoting Robertson v. Fiore, 62
F.3d 596 (3d Cir. 1995)).

        The Goodman decision examines at length
admissibility of certain evidence. However, the ultimate legal
issue before the court was whether the plaintiff had
adequately proved his case at the third prong of the test. That
is, the issues were whether Goodman had proven defendants
had knowledge of his political affiliation, and whether such
knowledge was the reason for denying him a promotion. See
id. at 670-75. There was no dispute, however, that Goodman
was a registered, active Democrat, whose family was engaged
in a political rivalry with a Republican State Senator, and
opposed Republican candidates generally. See id. at 661, 672.
The court relied on plaintiff’s party affiliation as supporting
the sufficiency of plaintiff’s intent in challenging an adverse
employment action as the result of improper political
patronage.

       The above discussion, necessarily detailed, should
demonstrate that precedent does not require the result reached
by the majority.18 Thus, treating the question presented as one


   18
    The majority does correctly cite a number of district court
opinions within this Circuit which have concluded that public

                              53
of first impression, do the applicable legal principles require
affirmance?

II.    The District Court Correctly Followed Controlling
       Precedent

        The District Court relied on this Circuit’s precedent,
i.e., Goodman, 293 F.3d at 663, for the above-quoted standard
of the elements necessary to make out this claim. Goodman
relies on a prior decision of this Circuit, Robertson v. Fiore,
62 F.3d at 599, for this formulation and quotes it directly from
Robertson. Although the majority cites Goodman in its
opinion, see Maj. Op. at 13, the majority, rather than using the
Goodman formulation of the test, instead quotes a
significantly different, and broader, formulation from
Stephens v. Kerrigan.

       Specifically, the second element, although quoted in
Goodman as requiring the plaintiff to show “that the
employee maintained an affiliation with the political party” is
characterized in Stephens as the plaintiff must only show “she
was engaged in constitutionally protected conduct.” See
Stephens, 122 F.3d at 176, and quoted in the majority’s



employees who are not affiliated with any political party enjoy
protection against discriminatory employment actions. See Maj.
Op. at 15 n.3. However, all of these cases rely on the dictum in
Elrod, Branti and/or Bennis for this result.

                               54
opinion. Maj. Op. at 13. The majority could not and does not
criticize the District Court for quoting the elements of the
claim as stated in Goodman, but the majority mysteriously
avoids using the Goodman standard, even though Goodman is
this court’s most recent precedential holding on this topic.

       The Stephens reference to “constitutionally protected
conduct” also cites Robertson, but this language will not be
found in Robertson. Research shows Stephens introduced the
broad phrase “constitutionally protected conduct” as the
second prong without any precedential support.19

       19
          Stephens cites, in addition to Robertson, Rode v.
Dellarciprete, 845 F.2d 1195, 1200 (3d Cir. 1988), and Laskaris
v. Thornburgh, 733 F.2d 260, 265 (3d Cir. 1984), cert. denied,
469 U.S. 886 (1984)). Although involving First Amendment
rights to speech and association, Rode is not a political
patronage case at all. The plaintiff’s free speech claim stemmed
from alleged retaliation by the police department which
employed her for statements she made during an interview with
a journalist, and the association in question was with the
plaintiff’s brother-in-law. See Rode, 845 F.2d at 1199. In this
sense, Rode’s only real relevance to the issue of political
patronage is that it also employs the Mt. Healthy City Sch. Dist.
Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), standard, requiring
that the protected conduct in question play a substantial or
motivating factor in the government’s choice to impose the
employment action in question. See Rode, 845 F.2d at 1200
(citing Mt. Healthy, 429 U.S. 274). In Laskaris, a directed
verdict for the defendants was upheld because the court

                               55
       Nonetheless, the majority opinion proceeds with the
standard as stated in Stephens as the standard to be applied,
which is a gigantic leap in doctrine, but which I have
demonstrated is without any precedential support whatsoever.
That language (“constitutionally protected conduct”) was not
necessary to the Stephens holding, because that case
determined that the plaintiff, involved in an intra-party
dispute, was entitled to the protection of the Elrod/Branti rule,
because he was himself politically affiliated, just as Messrs.
Elrod, Branti and Rutan, as well as all the other plaintiffs in
our own cases, were politically affiliated. Thus, the language
of Robertson was sufficient to support the holding in
Stephens, without the Stephens opinion changing the specific
words of the second element of the claim.

      The majority attempts to justify its adoption of the
broader standard in the following language:


determined the plaintiffs had failed to adduce any evidence
which could lead the jury to conclude the defendants had any
knowledge of the plaintiffs’ political affiliations. Laskaris, 733
F.2d at 265 (“Without that knowledge [that plaintiffs were
Democrats] as a predicate, the fact that Diehl, who was a
Republican, replaced Laskaris, cannot by itself support an
inference that Laskaris’s discharge was politically motivated.”)
Laskaris extends the Elrod-Branti rule and concludes “[f]irst
amendment rights are not less violated if political affiliation is
not the ‘sole’ reason but only a ‘substantial’ factor in the
decision.” Id. at 265.

                               56
       Our Court sometimes has described this as a
       requirement that “the employee maintain [] an
       affiliation with a political party.” See, e.g.
       Goodman v. Pa. Turnpike Comm’n, 293 F.3d
       655, 663-64 (3d Cir. 2002). However, the
       constitutionally protected activity here is
       broader than the act of joining a political party.
       Indeed, “[t]he threat of dismissal for failure to
       provide [] support [to the party in power]
       unquestionably inhibits protected belief and
       association, and dismissal for failure to provide
       support only penalizes its exercise.” Elrod, 427
       U.S. at 359. In other words, lack of allegiance
       to the official or party in power itself is
       protected under the First Amendment,
       irrespective of whether an employee is actively
       affiliated with an opposing candidate or party.
       See Branti, 445 U.S. at 519 (holding that
       continued public employment “cannot properly
       be conditioned upon . . . allegiance to the
       political party in control”).

Maj. Op. at 13-14.

        The only citation for this last proposition is a quote
from Branti, which cannot support the majority’s conclusion
in this case because, as shown above, the facts of Branti
concerned employees who were politically affiliated. The


                               57
majority opinion continues by asserting that this court’s prior
opinions in Robertson and Bennis are in accord with this
proposition – but as the above discussion shows, the facts in
those cases involve politically affiliated employees, and the
language which the court cites is clearly dictum.

        It is clear that if the majority had adhered to the
requisites of the claim as described in Goodman, which was
relied on by the district court, the result would be an
affirmance.

       The District Court reviewed the applicable Third
Circuit principles as most recently established in Goodman.
The second prong in Goodman is the requirement “that the
employee maintained an affiliation with a political party.”
See id. at 663. Without citing any of the dictum in Elrod or
Bennis, the District Court correctly noted “as to the second
prong, there is no evidence in the record that plaintiff
maintained an affiliation with any political party.” The
District Court then reviewed a number of citations from the
record supporting this conclusion, and concluded “it is clear
from these statements that plaintiff fails to satisfy the second
prong of the standard – that is, plaintiff emphatically did not
maintain a political affiliation.” (App. Pa. 6-7.)

       In footnotes, the District Court noted that plaintiff had
vacillated between arguing that she was politically disinclined
and that she had no political affiliation, and although there


                               58
may be conceptual differences between the two, they did not
affect the District Court’s opinion. The District Judge also
cited cases to support the well known proposition that
“historically, the First Amendment has been used to protect
political speech, although also protecting silence,” and
concluding, “[i]n this instance plaintiff’s silence is not a form
of expression, protected or otherwise; it is simply a complete
lack of interest in a topic. As a result, this court would have
found it difficult to understand how plaintiff’s silence and
lack of interest in politics could be construed as political
speech that requires the protection of the First Amendment.”
(App. Pa. 6-8, n. 2,3.)

       The District Judge also correctly noted, corroborating
my own research, “this court has been unable to locate any
case that provides protection for a plaintiff who simply lacks
an interest in politics.” (App. Pa. 8.)

       Despite the District Court’s thoroughly accurate
characterization of the record, and its reliance on the
requisites of establishing a claim of this nature as recently
restated in Goodman, the majority concludes that the District
Court “misreads our interpretation of the Elrod-Branti
doctrine,” by, as noted above, citing dictum in Bennis. I
respectfully suggest the extended discussion above shows it is
the majority which has misread the precedents.

       I also believe that the majority has improperly


                               59
characterized the facts in its statement at page 16 of the
Majority Opinion, “Therefore, contrary to the conclusion of
the District Court, Galli’s failure to support the McGreevey
campaign or the Democratic party – even if because of a
general apathy toward, or disdain for, politics – is
constitutionally protected under the First Amendment.”
(emphasis added).

        To say that the facts show that “Galli’s failure to
support” McGreevey or the Democrats is misleading. The
word “failure” has a negative connotation and evokes a
conscious decision, close to a refusal, to become involved in
taking the side of one party or one candidate versus another
party or candidate. The District Court fully recognized that
Galli had a constitutional right not to become involved in
politics, but never used the words “failure to support” as does
the majority.

        The District Court made no equation of Galli’s right to
remain silent with a lack of proof that she failed to support
McGreevey. The District Court was only noting that
plaintiff’s complete lack of interest in politics, by itself,
demonstrated that she did not meet one of the elements of the
claim as established in Goodman.

III.   The Majority’s Decision Is an Unwise Extension of
       Current Law



                              60
        Existing precedents correctly focus on public
employees who have been demonstrably and voluntarily
politically affiliated or active. The policy which the Supreme
Court decisions adopted, not only focuses on the employees’
expression of their First Amendment right that courts have
protected, and rightly so, but also the interest of the public in
allowing public employees to participate in politics without
fear of losing their jobs. When a state employee, or any other
citizen, chooses not to register to vote as a member of a
political party, and chooses not to identify herself with any
political organization, and keeps her political views to herself,
as Galli, she is also within her rights and no one can force her
to do otherwise.20 However, it is a stretch, if not a fiction, to
maintain that Galli is “exercising” her rights. In plain
English, she is declining to exercise her rights. She cannot be
denied the privileges of citizenship for this refusal. However,
under the majority’s rationale, her silence has been equated
with political activity and the dominoes of litigation will thus
start falling in favor of a new class of public employee
plaintiffs who have no political activity, expression or
affiliation, but who will be entitled to presumably permanent
job protection if they can prove their job was given to
someone else with political affiliation or support.

        Such an extension of First Amendment protection


   20
    The District Court appropriately cited the right of silence,
with citation to Barnette, 319 U.S. 624.

                               61
should, in my opinion, be made by Congress rather than by
judges. The actual holdings of Elrod, Branti, Rutan and
Goodman forbid adverse employment consequences because
of the exercise of First Amendment political rights by the
public employee. Giving the word “exercise” as used in the
First Amendment its plain meaning, surely one can see,
through a constitutional prism, the difference between
characterizing a public employee’s loss of her job because of
her exercise of her political beliefs as a civil rights violation,
and reaching the same result for the public employee who
eschews all things political, and has made no such “exercise.”

        This holding may motivate public employees, who
want to hold on to their jobs, to avoid any political affiliation
or involvement whatsoever, thus, emasculating a key purpose
behind the origins of the Pickering rule, i.e., to protect and
encourage political speech and debate by public employees.
In its quest to seek equality for all public employees, the
majority equates the rights of the politically active public
employee with the apolitical public employee. Although this
may appear to be superficially appropriate, it really ignores
the fundamental policy concerns which led the Supreme Court
down this path in the first place. The majority has elevated
job protection as a civil right, but in the process has pushed at
least an equal, if not more important, civil right, the public
interest in having public employees be involved in politics,
into the background.



                                62
        The reality is that many people undertake political
activity because it will help them get a public employment job
as a result of their political activity, i.e., political patronage.
The downstream impact of the majority’s holding may be to
lessen political activity.

        Congress has not hesitated to legislate where it decided
that restrictions on the right to hire and fire were wise. It has
enacted laws impacting the employment relationship, public
and private, in a variety of contexts.21 Cases arising under
these laws consume a considerable share of the daily litigation
diet in district courts. If an apolitical public employee’s
protection from job termination is wise and in the public
interest, Congress should make that call, not this Court.

IV.     The Majority’s Decision Will Create Much
        Confusion Among Litigants and District Judges


   21
     Family and Medical Leave Act of 1993, 42 U.S.C. § 2601
et seq.; Americans with Disabilities Act of 1990, 42 U.S.C. §
12101 et seq.; Labor-Management Relations Act, 1947, 29 §
141 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. As the Supreme Court stated in enforcing Title
VII in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
(1973), “The language of Title VII makes plain the purpose of
Congress to assure equality of employment opportunities and to
eliminate those discriminatory practices and devices which have
fostered racially stratified job environments to the disadvantage
of minority citizens.”

                                63
        In Robertson, the court noted that the burden of proof
in political discrimination cases requires a burden-shifting
process similar to that in other employment cases. If the
employee demonstrates the three elements as stated in
Robertson and Goodman, the employer may avoid a finding
of liability by demonstrating by a preponderance of the
evidence that it would have made the same decision even in
the absence of protected affiliation. Mt. Healthy, 429 U.S.
274.

        In cases filed and litigated under the existing doctrine
of the Supreme Court and this court, plaintiffs have had to
prove some kind of political affiliation or activity, and as a
result of that, they suffered an adverse employment decision.
In most states, in order to vote in a primary election, a person
must register with a political party. If this voter is interested
in future public employment, the mere fact that the voter
registered with the same political party as the incoming
administration may mean that a lawsuit and jury trial may be
necessary to determine if the administration’s decision to hire
the registered voter to replace an existing, apolitical
employee, violated the latter’s constitutional rights. Indeed,
the effect may very well be to discourage political activity.

      Why should a judge-made rule prevent, on pain (and
considerable expense) of defending civil rights litigation, an
incoming administration from replacing an existing employee
who had voluntarily decided not to register with a political


                               64
party, with someone who was politically registered? The
court is inviting litigation over the motives of an incoming, or
existing, governmental administration in replacing current
apolitical employees with those who have been exercising
their First Amendment right to politically affiliate or engage
in political activity. The evidence and the charge to the jury
would require the parties and the jury to inquire into the
motive of the decision-maker and whether the employment
decision was made because of political considerations. The
seeming simplicity of this kind of inquiry is deceptive. It is
difficult enough for juries and judges to discover and
adjudicate motive in the context of age or gender
discrimination, which Congress has forbidden, but when the
legal test touches upon the exercise and/or non-exercise of
cherished, and sometimes privately held, political beliefs,
which are constitutional rights, the majority is inviting a very
intrusive examination into personal matters. If a public
employee has publically and openly expressed himself
politically, then there is no intrusion.

        The majority opinion leaves undecided how district
court judges should interpret “constitutionally protected
conduct” in the factual situation of a public employee who has
no political affiliation or interest whatsoever. Two conflicting
constitutional rights are at play. First, is the public
employee’s protected right to remain silent. Second, other
citizens have the right to have political affiliations and engage
in political conduct. Will post-trial review of a verdict for


                               65
sufficiency of the evidence require this court to assess the
quantity and quality of political activity by replacement
employees? Will simple party registration without any
political activity be enough to support a verdict that an
employment decision was made solely because of party
affiliation? The shoals of litigation may never be more
difficult to navigate, and courts may not emerge from this
thicket with a rational test to promote the socially useful and
valid exercise of important constitutional rights, i.e., the right
to engage in politics.

       By extending Elrod, Branti and Rutan job protection to
those who are completely and totally politically inactive, the
majority awards that protection to a previously unprotected
class of public employees. This may sound fair in principle,
but because we judges are removed from the world of politics,
we need to exercise restraint from making decisions which
will impact the free flow of political discourse.

       The dissent of Justice Scalia in Rutan, speaking also
for Chief Justice Rehnquist and Justice Kennedy, and in part
for Justice O’Connor, did not constitute a majority of the
Supreme Court. However, his conclusion, that if Elrod and
Branti were correctly decided on their facts, they should not
be extended beyond their facts, which he characterized as
“actual discharge of employees for their political affiliation,”
Rutan, 497 U.S. at 114, has so far been adhered to by the
Supreme Court. The focus is properly on the political activity


                                66
of the current employee. This case should be the vehicle to
clarify the unfortunate dicta in cases such as Stephens and
Bennis, not expand them.

V.    Conclusion

        The majority has steered this court into new territory
by the expansion of current law to protect the politically
unaffiliated, and the questions above point out the difficulty
of defining those parameters. One of the principal purposes
behind protecting public employees from adverse
employment actions based on political patronage is to balance
the interests of government in the effective and efficient
provision of public services with public interest in public
employees participating freely in open debates about issues of
public concern. The extension of these protections to one
who chose not to engage in politics in any way is neither
required by precedent nor warranted by the underlying
justification for restrictions on patronage.

      For the foregoing reasons, I respectfully dissent.




                              67
