Furlong v. Gudknecht

• Decision Date: 19 December 1986
• Docket Number: No. 86-1052,86-1052
• Citation: 808 F.2d 233
• Parties: FURLONG, James F. v. GUDKNECHT, Edward, individually and as the Recorder of Deeds of Bucks County and County of Bucks, Edward Gudknecht, individually and as the Recorder of Deeds of Bucks County, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 233

808 F.2d 233

1 Indiv.Empl.Rts.Cas. 1321

FURLONG, James F. v. GUDKNECHT, Edward, individually and as the Recorder of Deeds of Bucks County and County of Bucks, Edward Gudknecht, individually and as the Recorder of Deeds of Bucks County, Appellant.

No. 86-1052.

United States Court of Appeals Third Circuit.

Argued Aug. 20, 1986.

Decided Dec. 19, 1986.

Thomas J. Profy, III (argued), John P. Koopman, Begley, Carlin & Mandio, Langhorne, Pa., for appellant.

Ronald Jay Smolow (argued), Ronald Jay Smolow, P.C., Trevose, Pa., for appellee.

Before BECKER and MANSMANN, Circuit Judges, and TEITELBAUM, District Judge. ^*

OPINION OF THE COURT

MANSMANN, Circuit Judge.

The central issue we are asked to address in this political discharge case is whether the potential for statutory succession to an elected office by an appointed deputy with ministerial duties is sufficient to demonstrate that "party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574 (1980). Holding that it was not, the district court granted a motion to enjoin preliminarily the defendant, Edward Gudknecht, the newly elected Republican Recorder of Deeds for the County of Bucks, from terminating the plaintiff, a Democrat, as Second Deputy to the Recorder of Deeds, a job he held for eight years. We find that, although the potential for succession is important in theory, political affiliation is inapposite to the duties of the elected office and the possibility of succession is so de minimis that the Branti burden of proof on the public employer has not been demonstrated. We will, therefore, affirm the district court's order.

I.

The plaintiff, James F. Furlong, is a registered Democrat. In January of 1978, the Democratic Recorder of Deeds for the County of Bucks, Lucille Trench, appointed Furlong to serve as Second Deputy Recorder of Deeds. Trench reappointed the plaintiff for Trench's second four-year term in 1982.

In November of 1985, a Republican, defendant Edward Gudknecht, was elected Recorder of Deeds. Furlong had actively supported the defendant's opponent, Democrat Janice DeVito, throughout her campaign. On January 3, 1986, Gudknecht informed Furlong that Gudknecht would terminate him on January 6, 1986, and would appoint Lillian Strawn, a Republican, as Second Deputy Recorder.

Furlong immediately filed a complaint alleging federal and state causes of action and seeking injunctive and monetary relief. The plaintiff simultaneously moved for a temporary restraining order and for a preliminary injunction to preclude Gudknecht from firing, or failing to retain, him in office.

Following a hearing, the district judge issued a bench opinion analyzing the evidence in light of the likelihood of the plaintiff's success on the merits, the potential for irreparable injury absent temporary relief, the possibility of harm to third parties, and the public interest. See Delaware River Port Authority v. Transamerican Trailer Transport, Inc., 501 F.2d 917, 919-920 (3d Cir.1974). On January 15, 1986, the district court entered an order granting Furlong's motions for a temporary restraining order and for a preliminary injunction. This appeal followed. We possess jurisdiction to review the preliminary injunction pursuant to 28 U.S.C. Sec. 1292(a)(1) (1982).

II.

The Supreme Court has twice proscribed dismissals of public employees solely for their political affiliation. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Branti, 445 U.S. 507, 100 S.Ct. 1287. Simultaneously, the Court has clarified that the First Amendment permits some patronage discharges.

Justice Stewart's concurrence in Elrod distilled a single issue from the plurality's opinion:

whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.

Elrod 427 U.S. at 375, 96 S.Ct. at 2690 (Stewart, J., concurring). The Court subsequently focused its holding in Branti. ¹

In sum, 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, 100 S.Ct. at 1295.

In a similar case also arising from Bucks County, Pennsylvania, Brown v. Trench, 787 F.2d 167 (3d Cir.1986), we observed that, despite Branti's focus, the opinion failed to specify particular factors tending to answer its "ultimate inquiry." Id. at 169.

After surveying several cases following Branti, however, we discerned the "key factor" to be "whether the employee has 'meaningful input into decision making concerning the nature and scope of a major ... program.' " Id. at 169-170, quoting Nekolny v. Painter, 653 F.2d 1164, 1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1717, 72 L.Ed.2d 139 (1982). More recently, we have chosen to construe Branti narrowly. Horn v. Kean, 796 F.2d 668 (3d Cir.1986). Mindful of these standards, we turn to the defendant's points of error.

III.

A.

The defendant argues that the district court erroneously found party affiliation irrelevant to the office of the Second Deputy Recorder of Deeds. On review of a district court's grant of a preliminary injunction, "[u]nless that court abuses its discretion, commits an obvious error in applying the law, or makes a serious mistake in considering the proof, the appellate court must take the judgment of the trial court as presumptively correct." Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 958 (3d Cir.1984). See National Land & Investment Co. v. Specter, 428 F.2d 91, 95 (3d Cir.1970).

We have reviewed the testimony relating to the duties of the deputy recorders and we cannot label "clearly erroneous" the district court's factual view that the deputy recorders occupy purely ministerial, if not clerical, positions. Cf. Rosenthal v. Rizzo, 555 F.2d 390, 393 & nn. 3, 5 (3d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977) (noting that the question of the plaintiff's status as a policymaker vel non is one of fact). The record discloses that the deputies record documents, satisfy mortgages, and forward taxes.

Gudknecht, in fact, flatly admitted on questioning by Furlong's counsel:

MR. SMOLOW: Mr. Gudknecht, is political party affiliation of the first or second deputy important with respect to the performance of their official duties?

MR. GUDKNECHT: No, it's not.

Later, however, the following exchange occurred during Gudknecht's direct examination by his counsel:

MR. KOOPMAN: On Friday, Mr. Smolow asked you whether you felt political affiliation was an appropriate criteria [sic] for the performance of the duties of Deputy Recorder of Deeds in supervising personnel in the office. And you answered that question, how?

MR. GUDKNECHT: No, I don't think I understood the question at the time.

MR. SMOLOW: I'm going to object. First of all, your Honor, that was not the question phrased. It was not qualified with respect to supervising personnel in the office.

THE COURT: The Court recalls the question, the Court recalls the answer, the Court recalls the new answer he's giving after a weekend to think about it and talk to his attorney, however, I'll permit the question and the answer, for whatever credibility it has.

The district court found ample reason to discredit the defendant's later testimony and we will not disturb this finding.

B.

We turn now to the crux of the legal issue before us. We agree that the possibility that the plaintiff might ascend to the defendant's elected office by virtue of Pa.Stat.Ann. tit. 16, Secs. 1305, 1312 is a factor to be considered in determining whether the Branti criteria have been met. The defendant argues that since party affiliation was important to his election as Recorder, it a fortiori follows that party affiliation is necessary for any position which could possibly ascend to the Recorder position.

While not mandatory, Sec. 1312 does give the Recorder the discretion to appoint a Second Deputy. Pa.Stat.Ann. tit. 16, Sec. 1312 (Purdon 1956) provides:

The recorder of deeds may appoint a second deputy recorder of deeds, who shall possess and discharge all the rights, powers and duties of the principal deputy recorder of deeds during his necessary or temporary absence.

Notably, though, a Recorder must name a First Deputy:

The recorder of deeds shall appoint one first deputy to act in the case of the death or resignation of his principal, or when the office shall become vacant from other causes.

Pa.Stat.Ann. tit. 16, Sec. 1305 (Purdon Supp.1986).

The possibility emerges from Secs. 1312 and 1305 that a Second Deputy might temporarily occupy the Recorder's office during the absence of both the Recorder and the First Deputy. See Pa.Stat.Ann. tit. 16, Sec. 408(a) (Purdon Supp.1986). The County Code, however, requires the Governor to select promptly a successor to the Recorder. ²

We agree that the possibility that a Second Deputy would "possess and discharge all of the rights, powers and duties ..." of the Recorder of Deeds in the absence of the Recorder and of the First Deputy supports the importance of the Second Deputy's political affiliation. We find, however, that although a major factor, the possible succession of the Second Deputy is not outcome determinative here for several reasons.

First, the attendant duties of the Recorder of Deeds appear unaffected by the Recorder's political views. One must concede that party affiliation was essential to the Recorder's election to office. Yet politics seems inapposite to "the effective performance of the public office involved." Branti, 445 U.S. at 518, 100 S.Ct. at 1295.

The...