Fazio v. City and County of San Francisco, 96-16981

• Decision Date: 07 October 1997
• Docket Number: No. 96-16981,96-16981
• Citation: 125 F.3d 1328
• Parties: 13 IER Cases 603, 97 Cal. Daily Op. Serv. 7865, 97 Daily Journal D.A.R. 12,677 William FAZIO, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO; Arlo Smith, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1328

125 F.3d 1328

13 IER Cases 603, 97 Cal. Daily Op. Serv. 7865,

97 Daily Journal D.A.R. 12,677

William FAZIO, Plaintiff-Appellant, v. CITY AND COUNTY OF SAN FRANCISCO; Arlo Smith, Defendants-Appellees.

No. 96-16981.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 17, 1997.

Decided Oct. 7, 1997.

Nancy L. Fineman and Joseph W. Cotchett, Cotchett & Pitre, San Francisco, CA, for plaintiff-appellant.

Aleeta M. Van Runkle, Deputy City Attorney, and Jonathan Holtzman, Chief Deputy City Attorney, San Francisco, CA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California; Eugene F. Lynch, District Judge, Presiding. D.C. No. CV-95-01559-EFL.

Before: ALDISERT, ^* CHOY, and THOMPSON, Circuit Judges.

CHOY, Circuit Judge:

Plaintiff-appellant William Fazio ("Fazio") appeals the district court's partial grant of summary judgment in favor of defendants-appellees City and County of San Francisco ("CCSF") and Arlo Smith ("Smith") (collectively, "Appellees"). Fazio, a former Assistant District Attorney for CCSF, claims that the district court erred in holding that former CCSF District Attorney Smith's termination of Fazio's employment when Fazio decided to run against Smith in an upcoming election did not violate the First Amendment as a matter of law. We have jurisdiction under 28 U.S.C. § 1292(b), and we affirm the judgment of the district court.

Factual and Procedural Background

Arlo Smith was the District Attorney of CCSF in 1995. When William Fazio, an Assistant District Attorney for San Francisco, filed his papers to run against Smith for the District Attorney position on April 13, 1995, Smith fired Fazio. At the time of his firing, Fazio had worked as a prosecutor in the San Francisco District Attorney's office for almost twenty years, had the title "Head Attorney," and worked in the Homicide Department. Fazio alleges, and Appellees concede for the purpose of this appeal, that Fazio was fired because he decided to run against Smith for the District Attorney position.

According to Fazio, the position of Head Attorney "does not have a single definition but instead may denote several things, such as an assistant district attorney's level of experience and skill, or the assistant district attorney's degree of supervisory capacity." Fazio states that he received the "Head Attorney" title due to his experience and skill as an Assistant District Attorney resulting from his lengthy service with the office. Fazio claims that the job duties of a Head Attorney are no different than those of a regular Assistant District Attorney.

As a Head Attorney in the Homicide Division, Fazio handled high profile cases. Fazio was often quoted by the media on matters of general public interest, such as the O.J. Simpson trial, as well as on matters being handled by the District Attorney's office in which he worked. As Head Attorney, Fazio's salary was over $100,000 per year. The Appellees also point out that Fazio claims to have " 'innovated a program which closed down commercial property which was used for the sale of drugs' " and " 'helped create the Domestic Violence Unit in the District Attorney's Office.' "

According to the San Francisco Charter § 3.402, the position of Assistant District Attorney is an at-will position, and no cause is required for the firing of an Assistant District Attorney. Pursuant to the Charter, the District Attorney or his assistants "shall prosecute all criminal cases in the municipal and superior courts, draw all complaints, and issue warrants for the arrest of persons charged with crime who are to be prosecuted in such courts." Id.

Fazio's first amended complaint states five grounds for relief: 1) violation of First Amendment rights; 2) violation of Due Process rights; 3) wrongful termination in violation of public policy; 4) slander; and 5) intentional infliction of emotional distress. CCSF and Smith moved for summary judgment on all five causes of action. The district court granted in part and denied in part the motion for summary judgment. One of the issues on which summary judgment was granted was the alleged First Amendment violation. The district court certified the First Amendment claim for immediate appeal under 28 U.S.C. § 1292(b), and this court granted Fazio's motion for interlocutory appeal on October 23, 1996.

Standard of Review

We review a grant of summary judgment de novo. Jesinger v. Nevada Fed Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994). We must determine whether, viewing the evidence in the light most favorable to the nonmoving party, any genuine issues of material fact exist, and whether the district court correctly applied the relevant substantive law. Id. The district court's grant of summary judgment may be affirmed if it is supported on any ground in the record, regardless of whether the district court relied upon that ground. Sicor Ltd. v. Cetus Corp., 51 F.3d 848, 860-61 n. 17 (9th Cir.1995).

In response to a properly supported motion for summary judgment, the opposing party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The inquiry performed by the trial court is the determination of whether "any genuine factual issues [exist] that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). For an issue to be "genuine," there must be evidence such that a verdict in favor of the nonmoving party could be reached by a reasonable jury. Id. at 248, 106 S.Ct. at 2510. Therefore, a mere "scintilla" of evidence will be insufficient to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some "significant probative evidence tending to support the complaint." Id. at 249, 252, 106 S.Ct. at 2510, 2512.

Analysis

When analyzing claims by government employees who are asserting that they were fired because they exercised their First Amendment rights, under the rule set forth in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968) the trial court must "balance ... the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." ¹ The Supreme Court later carved out an exception to this general rule. Under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), a public official who is a "policymaker" may be fired for political reasons without offending the United States Constitution.

The Supreme Court subsequently refined its description of the inquiry to be used in determining whether Elrod applies to a given employee. In Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1294, 63 L.Ed.2d 574 (1980), two Republican Assistant Public Defenders brought suit to enjoin the Democratic Public Defender from discharging them on the basis of their political affiliation. The Supreme Court stated that, in evaluating whether a position falls under the Elrod exception, the essential 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." ² The Branti Court went on to hold that the position of assistant public defender is not the type of public office in which a particular party affiliation may be a job requirement, because public defenders represent individual defendants, rather than society as a whole. Id. at 519, 100 S.Ct. at 1295. Significantly, the Branti Court noted that the above holding was not necessarily applicable to District Attorneys: "This is in contrast to the broader responsibilities of an official such as a prosecutor. We express no opinion as to whether the deputy of such an official could be dismissed on the grounds of political party affiliation or loyalty." Id. at 519 n. 13, 100 S.Ct. at 1295 n. 13. The rationale utilized to permit patronage dismissals in Elrod and Branti may also be applicable in the context of dismissals that are based on a public employee's political activities, such as running for office against an employer:

If a public official is permitted to fire a confidential or policymaking employee merely because the latter quietly, inoffensively, undemonstratively belongs to the wrong political party ... the official should be permitted to fire the same employee when the latter asks the electorate to throw the rascal out and put himself into the rascal's office.

Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir.1993). ³

To summarize, a public employee's claim that he or she was fired for exercising his or her First Amendment speech rights would generally be analyzed using the Pickering balancing test. If, however, a public employee is a policymaker, then the claim would fall under the rubric of Elrod and Branti. Thus, the crux of the issue in the case at hand is whether Fazio's position was a policymaking one. Under the rationale in Branti, a public employee need not literally make policy in order to fit within the Elrod policymaker exception. Rather, an employer may fire a public employee for purely political reasons if the employer can demonstrate that political considerations are "appropriate requirement[s] for the effective performance" of the job. Branti, 445 U.S. at 518, 100 S.Ct. at 1294; see also Wilbur, 3 F.3d at 218. If Fazio was not a policymaker, then his First Amendment claim would be evaluated using the Pickering balancing test. On the other hand, if Fazio was a policymaker, then under Branti his government employment could be terminated for purely political reasons without offending...