Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing Borzilleri v. Mosby, a Fourth Circuit decision about the First Amendment rights of public employees.

Keri Borzilleri was an Assistant State Attorney in the Baltimore City State’s Attorney office in Maryland.  The Baltimore City State’s Attorney is an elected position and Borzilleri supported Gregg Bernstein, the incumbent, in what the court describes as a bruising Democratic primary against Marilyn Mosby, the eventual winner.  Three days after Mosby took office, Borzilleri was questioned about Bernstein’s campaign.  The next day was fired without cause.

Borzilleri filed suit against Mosby for violations of her First Amendment rights to free speech and free association, for violations of Maryland’s Declaration of Rights and for abusive discharge under Maryland tort law.  Mosby filed a motion to dismiss for failure to state a claim.

The District Court granted Mosby’s motion.  It dismissed her federal claims with prejudice, along with her Declaration of Rights claim.  It dismissed without prejudice her other state law claims.  Borzilleri appealed.

The Court began with Borzilleri’s claim that the firing violated her right to free association under the First Amendment.  The Court relied on two earlier Supreme Court cases, Elrod v. Burns, and Branti v. Finkel, to hold that Borzilleri’s rights were not violated.  Elrod has come to stand for the proposition that under the First Amendment, a nonpolicymaking, nonconfidential government employee cannot be fired or threatened with termination solely on the basis of her political beliefs.  But the decision left open a narrow exception for those who are in policymaking or other sensitive government positions.  Under Branti, the question is not what title an employee is given, but whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

The Fourth Circuit has crafted a two-part test for determining whether a particular position falls within the Elrod exception. First, the Court asks whether the position involves government decision-making on issues where there is room for political disagreement on goals or their implementation.  If the answer is yes, the Court then examines the particular responsibilities of the position to determine whether is resembles a policymaker, a privy to confidential information, a communicator, or some other office holder whose function is such that party affiliation is an equally appropriate requirement.

The Court had no trouble concluding that Borzilleri’s position as a Baltimore City Assistant State’s Attorney is a policymaker for First Amendment purposes.  It recognized that assistant prosecutors make discretionary decisions of real consequence, have broader public responsibilities beyond the mere representation of individual citizens, and that these decisions and responsibilities are laden with ideological content.  As the Court noted, there is much room for political disagreement in carrying out prosecutorial priorities, such as whether to focus on nonviolent drug crimes, or instead spend resources prosecuting white collar crimes, whether the death penalty should be sought, or if a plea deal calls for leniency or severity.  Assistant State Attorneys, the Court held, exercise discretion on matter implicating partisan political interests or concerns on a daily basis.

As the Court put it “Elections mean something.  Majorities bestow mandates.  Elected prosecutors translate those mandates into policies.  And assistant prosecutors implement those policies.”  The Court further recognized that elected officials often win on the backs of promises to make changes, changes which the incumbent staff may be resistant to.  Thus, entrenching incumbent policymakers can deprive democratic politics of its necessary adaptability.

Furthermore, Borzilleri’s specific job bore all the hallmarks of a policymaker and communicator.  She worked on major cases and was one of just three community prosecutors, who prosecuted complex crimes and served as a liaison between the State’s Attorney’s Office, the community, and the local police.  Simply put, Borzilleri was tasked with directly implementing the State’s Attorney’s policies and with communicating them to key constituents.

Borzilleri argues that since she and other assistant prosecutors are officers of the court, their position constrains any policymaking authority they possess.  But the Court held that this only constrains their discretion at the margins.  They still make final decisions about whom to investigate, whom to charge, and what plea bargains to accept.  The Court concluded that the Elrod-Branti test focuses on the powers inherent in the office, rather than the functions performed by a particular occupant of the office.  It also notes that every court to consider the issue has decided that assistant prosecutors are policymakers under the test.

The Court then turned to the claim that Borzilleri’s termination was retaliation for expressing a political opinion in violation of her First Amendment right to free speech.  The Supreme Court has crafted a three part balancing test to examine the free speech rights of public employees, known as the Pickering test.  It has held that the Court must balance their interests as citizens in commenting upon matters of public concern, the community’s interest in hearing those employees’ informed opinions on important public issues, and the Government’s interest in promoting the efficiency of the public services it performs through its employees.  If the first two interests outweigh the third, then the employee’s speech is protected.

Before reaching the balancing inquiry, however, there are two threshold questions that must be answered: one, can the public employees’ statements be fairly characterized as constituting speech on a matter of public concern.  If not, then there is no protection.  Two, the court asks whether the public employees were speaking pursuant to their official duties.  If so, they were not speaking as citizens and thus they can be disciplined consistent with the First Amendment.

Here, the Court held that Borzilleri was speaking in her personal capacity about a matter of public concern.  However, while the Pickering balancing test for free speech is separate from the Elrod-Branti test, the two are closely related.  Thus, once the Court has determined that the Elrod-Branti policymaker exception applies, the Pickering balance generally tips in favor of the government.  Thus, where an employer does not violate his employee’s association rights by terminating him for political disloyalty, the employer does not violate his employee’s free speech rights by terminating him for SPEECH displaying that political disloyalty.

Here, the Court had no reason to depart from this conclusion, particularly when an employee vigorously campaigned against the election of her new boss.  Thus, it affirmed the decision of the district court.

Based on the established precedent, the Court clearly made the right call here.  Assistant State’s Attorneys, like prosecutors everywhere, have large discretion in how they perform their jobs.  And the impacts of that performance can be quite substantive.  As the Court rightly points out, elected prosecutors and State’s Attorneys often campaign on very specific policies, which they depend on their deputies and assistants to carry out.  Being forced to employ someone who campaigned against those policies can be detrimental to achieving the goal.

However, I’m not sure I agree with the governing precedent.  While it is certainly true that incumbent personnel can be hostile to the goals of a new administration, this is true of all employees, not just those in a policymaking role, and yet we provide protections for those non-policymaking employees, despite the fact they can also hamper the smooth functioning of a public office.  Furthermore, there is no evidence that an employee who prefers one outcome will necessarily undercut the implementation of a different policy.  Personally, I’d be more comfortable if there was a requirement to show that the employee was actually acting in a way that was detrimental to the policy goals of the newly elected official, particularly where, as here, there was no change in the party of the officeholder.  While it is true there could be some harm to allowing even one instance of disagreement, I do not think that is the case where prosecutors are concerned.  Removing Bazerelli from her Community Prosecutor position and returning her to a different job in the Baltimore City State’s Attorney’s may have been appropriate, until she demonstrated that she was willing to tow the party line.  After all, both Mosby and Bernstein were Democrats.  But given the current line of Supreme Court case law in this area, the Court made the correct decision.

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