Savage v. Com. of Pennsylvania

• Decision Date: 15 August 1979
• Docket Number: Civ. A. No. 79-1660.
• Citation: 475 F. Supp. 524
• Parties: Timothy J. SAVAGE v. COMMONWEALTH OF PENNSYLVANIA; the Honorable Richard Thornburgh, Governor; Robert C. Wilburn, Secretary of Budget and Administration; Christ J. Zervanos, Bureau of Labor Relations, Office of Administration; Pennsylvania Liquor Control Board; Daniel W. Pennick, Chairman and Ralph O. Barnett, in their official capacities as members of the Pennsylvania Liquor Control Board.
• Court: U.S. District Court — Eastern District of Pennsylvania

475 F. Supp. 524

Timothy J. SAVAGE v. COMMONWEALTH OF PENNSYLVANIA; the Honorable Richard Thornburgh, Governor; Robert C. Wilburn, Secretary of Budget and Administration; Christ J. Zervanos, Bureau of Labor Relations, Office of Administration; Pennsylvania Liquor Control Board; Daniel W. Pennick, Chairman and Ralph O. Barnett, in their official capacities as members of the Pennsylvania Liquor Control Board.

Civ. A. No. 79-1660.

United States District Court, E. D. Pennsylvania.

August 15, 1979.

COPYRIGHT MATERIAL OMITTED

Richard Kirschner, Jonathan K. Walters, Philadelphia, Pa., for plaintiff.

Richard H. Glanton, Harrisburg, Pa., for defendants.

OPINION

LUONGO, District Judge.

The plaintiff in this civil rights action is a former hearing examiner for the Pennsylvania Liquor Control Board who contends, inter alia, that his termination from that position infringed his first amendment rights to political expression and association.¹ The named defendants are the Commonwealth of Pennsylvania, the Pennsylvania Liquor Control Board, the Governor, the Secretary of Budget and Administration, the Director of the Bureau of Labor Relations, and two members of the Liquor Control Board. Jurisdiction is predicated on 28 U.S.C. §§ 1331(a), 1343(3) (1976), with 42 U.S.C. § 1983 (1976) as the remedial vehicle. The action is currently before me on plaintiff's motion for preliminary relief. After evaluating the evidence adduced at the hearing on preliminary injunction, which was held on June 6, 1979, and after considering the arguments advanced in the memoranda submitted by the parties, I conclude that preliminary relief is warranted under the circumstances of this case.

There is virtually no dispute about the facts surrounding Savage's termination.² Savage, who has been a member of the Pennsylvania Bar since 1971, served as a hearing examiner for the Pennsylvania Liquor Control Board (LCB) from April 1977 to March 21, 1979. During that period he received two evaluations, both of which evidence that his performance as a hearing examiner was wholly satisfactory. Plaintiff's Exhibits No. 7, 8. On March 19, 1979, Savage received a call from the office of Murray Dickman, the Deputy Executive Assistant to the Governor, and agreed to a meeting with him on March 21, 1979. Dickman's office did not at that time inform Savage of the purpose of the meeting. On the morning of March 21, 1979, Savage appeared at Dickman's office in Harrisburg; he finally met with Dickman and Richard Glanton, the Governor's counsel, in the early afternoon. The upshot of that meeting was Savage's termination as an LCB hearing examiner.

During the meeting, Dickman informed Savage that Savage's partisan political activities in connection with a special election that was to be held on March 27, 1979, had recently come to Dickman's attention. Savage acknowledged that he was a Democratic Party ward leader and that he had been actively campaigning for the Democratic candidate in the fifth senatorial district. Savage also acknowledged that he was a Democratic Party candidate for city council. After Savage confirmed Dickman's understanding of Savage's role in the then-up-coming election, Dickman proffered a letter of resignation that he had prepared prior to the meeting. Savage read the letter and refused to sign it. Dickman then handed Savage a letter of termination bearing the Governor's signature.³

Savage contends that his termination for having exercised his first amendment right to political expression is constitutionally impermissible under the doctrine enunciated in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The defendants counter this argument on two grounds. First, they contend that Savage was terminated pursuant to the Governor's policy against partisan political activity by government employees. They assert that this policy was nonpartisan in application, similar to the constitutionally permissible prohibitions contained in the Hatch Act. Second, they argue that Savage does not come within the Elrod doctrine because he is a policy-making, confidential employee.

I. JURISDICTIONAL IMPLICATIONS OF THE ELEVENTH AMENDMENT

Before I consider the relative merits of these arguments, I must first address a jurisdictional question that is raised by the presence here of the Commonwealth and the LCB. That question is whether the eleventh amendment bars suit against these institutional defendants. Sometime after the hearing on preliminary injunction, I requested additional briefing on the eleventh amendment issue, but only insofar as the problem of immunity might affect the relief potentially available to plaintiff should be succeed on the merits.⁴ After reviewing the most recent Supreme Court pronouncements on the relationship between the eleventh amendment and section 1983 (on which plaintiff relies herein), however, I conclude that the eleventh amendment has more serious and wider-ranging implications than I had immediately perceived. The question of eleventh amendment immunity does not color just the remedial phase of litigation, it surfaces at an even more fundamental stage. I refer, of course, to the initial exercise of jurisdiction over the Commonwealth and the LCB. Neither of these two defendants has moved for dismissal on this ground. Nevertheless, because the issue of eleventh amendment immunity is "not merely academic but rather `sufficiently partakes of the nature of a jurisdictional bar,'" see Alabama v. Pugh, 438 U.S. 781, 782 & n.1, 98 S.Ct. 3057, 3058, & n.1, 57 L.Ed.2d 1114 (1978) (quoting Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974)), I may, and do, raise the question on my own motion.

My inquiry proceeds from the premise that absent consent to suit by the state or clear abrogation of the immunity by Congress, the eleventh amendment insulates from suit both the state and governmental units that are extensions of the state. Alabama v. Pugh, supra, 438 U.S. at 782, 98 S.Ct. 3057, cited with approval in Quern v. Jordan, 440 U.S. 332, 339-40, 99 S.Ct. 1139, 1144-45, 59 L.Ed.2d 358 (1979); see Skehan v. Board of Trustees, 590 F.2d 470, 488-91 (3d Cir. 1978), cert. denied, ___ U.S. ___, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979) (No. 78-1719); Flesch v. Eastern Pa. Psychiatric Institute, 434 F.Supp. 963, 976-77 (E.D.Pa.1977). Compare Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), with Edelman v. Jordan, supra, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. Plaintiff argues by analogy to Fitzpatrick v. Bitzer, supra, that inasmuch as section 1983 is an exercise of congressional authority under section 5 of the fourteenth amendment, section 1983 abrogates the Commonwealth's eleventh amendment immunity. He suggests that the language in both Fitzpatrick v. Bitzer, supra, 427 U.S. at 451-52, 96 S.Ct. 2666, and Edelman v. Jordan, supra, 415 U.S. at 675-77, 94 S.Ct. 1347, noting that section 1983 does not abrogate the states' eleventh amendment immunity, has been undercut by the decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court overruled the holding in Monroe v. Pape, 365 U.S. 167, 187-91, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that municipalities and other local governmental units were not persons within the meaning of section 1983. 436 U.S. at 690, 98 S.Ct. 2018. Plaintiff argues that the Court's prior refusals to construe section 1983 as limiting the eleventh amendment was rooted in the now-rejected rationale of Monroe v. Pape. See Fitzpatrick v. Bitzer, supra, 427 U.S. at 452, 96 S.Ct. 2666. He contends that

the obvious effect of the court's decision in Monell establishing municipalities as `persons' in 1983 actions is, of course, to recognize the states as equally amenable to suit. The syllogism outlined by the court in Fitzpatrick, supra, regarding the exclusion of cities in Section 1983 actions and, therefore, the states as well, all of which was predicated upon Monroe v. Pape, supra, clearly requires a contrary result in view of Monell , a result that would recognize the Commonwealth as an appropriate party defendant.

Plaintiff's Additional Memorandum of Law (Document No. 12) at 9.

Any suggestion that Monell cast doubt on the Court's prior statements about the impact of section 1983 upon the states' eleventh amendment immunity was effectively foreclosed by the Court in this last term. In Quern v. Jordan, supra, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358, the Court reinforced the continuing vitality of Edelman v. Jordan and its subsequent decisions dealing with the eleventh amendment. After having noted that its holding in Monell was "`limited to local government units which are not considered part of the State for eleventh amendment purposes,'" id. at 338, 99 S.Ct. at 1144, the Quern majority firmly rejected the argument made by Justice Brennan in his concurring opinion that Congress intended section 1983 to override the states' traditional eleventh amendment immunity. Although the majority agreed that "both the supporters and opponents of the Civil Rights Act of 1871 believed that the Act ceded to the Federal Government many important powers that previously had been considered to be within the exclusive province of the individual States," id. at 342, 99 S.Ct. at 1146, they refused to concede that "logic, the circumstances surrounding the adoption of the Fourteenth Amendment, or the legislative history of the 1871 Act compel, or even warrant, a leap from this proposition to the conclusion that Congress intended by the general language of the Act to overturn the constitutionally guaranteed immunity of the several States." Id. at 342, 99 S.Ct. at 1146. Pointing to the very limited debate on section 1 of the 1871 Act (the precursor to section 1983), the Court compared the "clearer showing of congressional purpose to abrogate the Eleventh Amendment immunity" relied upon in other cases. Id. at...