Perez v. Cucci

• Decision Date: 02 May 1989
• Docket Number: Civ. A. No. 86-3595.
• Citation: 725 F. Supp. 209
• Parties: Abad PEREZ, Plaintiff, v. Anthony CUCCI, as Mayor of Jersey City, and Individually; the City of Jersey City; Walter Adams, as Director of Police and Individually; Jaime Vazquez, as City Councilman and Individually, Benjamin Lopez, as City Business Administrator and Individually, Defendants.
• Court: U.S. District Court — District of New Jersey

725 F. Supp. 209

Abad PEREZ, Plaintiff, v. Anthony CUCCI, as Mayor of Jersey City, and Individually; the City of Jersey City; Walter Adams, as Director of Police and Individually; Jaime Vazquez, as City Councilman and Individually, Benjamin Lopez, as City Business Administrator and Individually, Defendants.

Civ. A. No. 86-3595.

United States District Court, D. New Jersey.

May 2, 1989.

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Ignacio Perez, Jersey City, N.J., for plaintiff.

Raymond Reddington, Asst. Corp. Counsel, City of Jersey City, Jersey City, N.J., for defendants.

OPINION

HAROLD A. ACKERMAN, District Judge.

I. INTRODUCTION

The issue in this case, following a fifteen day bench trial, is whether the civil rights of plaintiff, Abad Perez, a former Jersey City Police Officer, were violated when he was demoted from the rank of plainclothes detective to uniformed patrolman because he had openly espoused the candidacy of a mayoral incumbent who was defeated in his bid for reelection in 1985.¹

In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), the United States Supreme Court concluded that where the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved a public employee occupying such a position can be replaced based on political party or group affiliation. Here, as the overwhelming evidence shows, fealty to a particular candidate, rather than party, was the unconstitutional criteria utilized for reward or punishment. For the reasons stated infra, I have found that Abad Perez deserved the protection of the United States Constitution and defendants' deprivation of such protection violated plaintiff's first and fourteenth amendment rights.

Before reciting in detail my findings of fact and conclusions of law, I believe something should be said concerning what I perceive to be an unconstitutional misuse of a venerated political practice—the spoils system. In their respective opinions in Elrod and Branti, Justices Brennan, Stevens, and Powell eloquently dealt with this subject. Nevertheless, I believe that a few more words are in order. Historically, political patronage has played a role in the personnel appointments on the federal, state, and local levels. Indeed, as Justice Powell noted, "the use of patronage in the early days of our Republic played an important role in democratizing American politics." Branti, supra, 455 U.S. at 522 n. 1, 100 S.Ct. at 1296 n. 1. See also S. Morison The Oxford History of the American People 736-37 (1965). With respect to the use of patronage on the federal level in the nineteenth century, Senator William Marcy of New York once stated that the politicians generally:

"`see nothing wrong in the rule that to the VICTOR belong the spoils of the ENEMY.' Rotation in office was nothing new—Thomas Jefferson had removed 10 per cent of the officials in John Adams' administration when he took office —but the phrase `spoils system' had a dirty ring to it. When during his first eighteen months in office Andrew Jackson replaced about the same percentage of appointees, his opponents contended that he had `introduced corruption into the central government....' The President never denied employing the system; he did deny that it was corrupt. Rotation in office, he explained, prevented government from becoming a continuous `engine for the support of the few at the expense of the many.'"

1 The American Heritage Pictorial History of the Presidents of the United States 205 (K. Leisch ed. 1968). As stated above, President Jackson never had any qualms about the spoils system:

"His theory, stated in his first annual message, was that `the duties of all public offices' were so `plain and simple' that any man of average intelligence was qualified; and that more would be lost by continuing men in office than could be gained by experience. Naturally, when the Whigs won in 1840 they threw the Jackson men out, and when the Democrats came back under Polk, they threw the Whigs out; and so on. The consequences were more power to party organizations, diminishing prestige of the federal civil service, and decreasing efficiency. This sort of thing became so engrained in the American political system that, despite repeated reform legislation, it still continues. With respect to such proposed reform, in ... 1959 Senator Herbert H. Lehman of New York `called for the eradication of the spoils system in politics,' especially the removal of the judiciary from `the control of party bosses.'"

S. Morison, supra, at 426-27.

Of course, the spoils system has not been confined to the federal government. In speaking of state politics, one author observed:

"The state machine, a small number of great cities apart, provides the party with all the qualities out of which its character is moulded. It has one single aim—that of victory at the polls, and its interest in policies is given, not by what they are in themselves, but by the contribution they can make to victory. For victory means jobs for the henchmen of the party in the state; it means the chance of lucrative contracts; it means safeguarding its dependents, very often, from the necessity of earning a living in the ordinary way. The successful machine may put its own lawyers on the courts; it may secure the support of powerful business interests; still more, it may prevent those interests from helping the other side. The machine is essentially a broker of ideas; it sets itself the task of finding out what principles of action are most likely to win a majority. It has to find the right candidates for the right jobs; perhaps even more, it has to prevent the wrong candidates from being chosen. It must make the voters feel that their well-being is directly related to the victory of the party it controls; and to create that feeling it has to have an accurate sense of the influences which count for most in the state. It is not an organization for the discovery of ideas for their own sake; it is an organization of men who come out first for the winning ideas at the right time. Its business is thus to keep its finger on the pulse of public opinion; but it must be able, as it judges public opinion, to work out with precision the weight that attaches to the different elements out of which public opinion is compounded. It reaches out from the state boundaries to the smallest precinct in the area it seeks to capture. Those who control it must know not only how to win the support of the great corporation; they must know as well how to convince a group of poor immigrants, to whom citizenship has just been granted, that their friendship is imperative. They must be able to measure just what volume of reward, the support they gain requires without risking, in the gift of that reward, the good opinion of the mugwumps whose vote determines most elections. They must possess every type of political condottiere, from an orator like Choate to a drill sergeant like Mayor Hague of New Jersey.

H. Laski, The American Democracy: A Commentary and An Interpretation 147-48 (1948).

It can be stated with some confidence that Frank Hague was something more than a "drill sergeant". As one historian recalled, in recounting the totality of the power Hague exerted as "mayor of Jersey City and ruler of New Jersey" for 30 years, Hague "bellowed once in a moment of unguarded candor.... `I am the law.'" Fleming, The Political Machine II: A Case History "I am the Law", in XX American Heritage 33 (June 1969), Mayor Hague engaged in what the author described as "an all-out assault on police laxity" to gain power, project a reformed image of the police department and "open an unparalled number of jobs for his dispensation", ostensibly to stop the "moral decay of the police force." Id. at 35. To this end, Mayor Hague took several steps. For instance, "as many as 125 men were put on trial in just one day for violating departmental regulations. Hundreds of police officers were ruthlessly demoted or dismissed. Into the decimated ranks Hague poured his tough young Horshoe followers, from whom he culled an elite squad of plain clothesmen, called Zeppelins, who wove a web of secret surveillance around the entire force." Id. at 35. Thus a reading of that period of Jersey City's history suggests that what happened to Abad Perez was merely a reflection of "business as usual" and that Abad Perez's problems were part of a historical political continuum.

It is difficult to disagree with Justice Powell's observation that such "... patronage hiring practices sufficiently serve important state interests including some interests sought to be advanced by the first amendment to justify a tolerable intrusion on the first amendment interests of employees or potential employees", Elrod, supra, 427 U.S. at 387, 96 S.Ct. at 2696 (emphasis added). Although "the Court's constitutional holding ... regarding the permissibility of patronage dismissals may displace political responsibility with judicial fiat ...," Branti supra, 455 U.S. at 534, 100 S.Ct. at 1303 (Powell, J. dissenting), the egregious facts of this case necessitates a finding that "patronage, ... to the extent it compels or restrains belief and association, is inimical to the process which undergirds our system and is `at war with the deeper traditions of democracy embodied in the first amendment.'" Elrod, supra, 427 U.S. at 357, 96 S.Ct. at 2681, quoting in part Illinois State Employees Union v. Lewis, 473 F.2d 561, 576 (7th 1972), cert. denied, 410 U.S. 928, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973). I find for the reasons stated below that the constitutional rights of Abad Perez were intruded upon intolerably.

Upon review of the entire record, and evaluation of the credibility of all of the witnesses, the court enters the following findings of fact and conclusions of law...