Julius L. Finkelstein v. Louis P. Bergna

924 F.2d 1449, 91 Cal. Daily Op. Serv. 759, 91 Daily Journal DAR 1210, 1991 U.S. App. LEXIS 1159, 1991 WL 7383

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 29, 1991
• Docket: 87-2943
• Status: Published

Opinions

BEEZER, Circuit Judge:

The petition for rehearing is granted. The opinion filed August 2, 1989, and published at 881 F.2d 702, is withdrawn. The suggestion for rehearing en banc is dismissed as moot.

OPINION

Julius Finkelstein brought suit against Louis Bergna in federal court under 42 U.S.C. § 1983 claiming violations of first and fourteenth amendment rights in addition to several pendent state law claims. Bergna moved for summary judgment on the ground that he was entitled to qualified immunity from suit on all claims. The district court denied Bergna’s motion. Bergna appeals. We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). We reverse the district court’s denial of summary judgment on the first amendment claim and affirm in all other respects.

In 1982 Julius Finkelstein was a deputy district attorney in Santa Clara County, California. Finkelstein worked for Louis Bergna, the elected District Attorney in Santa Clara County. Bergna did not run for reelection in 1982. Finkelstein and Leo Himmelsbach, another deputy district attorney, were running for Bergna’s position. Bergna supported Himmelsbach’s bid to succeed him in office. Finkelstein lost the election.

Shortly before the election, the press received information about Himmelsbach’s allegedly improper conduct while a deputy district attorney in 1974. Bergna believed that Finkelstein was the source of the “leak” to the newspapers and that Finkel-stein had retrieved the leaked information by making unauthorized entry into the office’s confidential personnel files. Bergna suspended Finkelstein without providing him an opportunity to deny that he was responsible for the leak. Immediately thereafter, Bergna held a press conference announcing Finkelstein’s suspension and implicating Finkelstein in the unauthorized entry into the personnel files and the subsequent leak to the press. Bergna’s comments received widespread coverage in the newspapers. Finkelstein alleges that the suspension, and its announcement at a press conference, were intended to thwart his bid for office.

A subsequent report from the Attorney General’s office stated that there was insufficient evidence to determine who leaked the information to the press. Further, due to lax record keeping in the office, it could not be determined whether access to the personnel files had been accomplished in an unauthorized manner. Finkelstein challenged the propriety of the suspension in postsuspension hearings. He lost those challenges. Finkelstein was reinstated to his position and continues to work as a deputy prosecutor in Santa Clara County. This suit followed.

I

An official is entitled to qualified immunity when the official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Schwartzman v. Valenzuela, 846 F.2d 1209, 1211 (9th Cir.1988). In order for an official to violate clearly established rights, the unlawfulness of the challenged conduct must be apparent in light of preexisting law. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Whether the law was clearly established is a question of law reviewed de novo. Brady v. Gebbie, 859 F.2d 1543, 1556 (9th Cir.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1577, 103 L.Ed.2d 943 (1989).

A

Bergna concedes that Finkelstein has a protected property interest in his job under California law. Once a protected interest is found, the inquiry turns to what process is due. Orloff v. Cleland, 708 F.2d 372, 378-79 (9th Cir.1983).

Bergna contends that it was not clearly established in 1982 that a temporary suspension, as opposed to a discharge, could implicate the procedural protections of the due process clause. Bergna is incorrect. See, e.g., Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (suspension of student implicated liberty and property interests requiring procedural due process); Devine v. Cleland, 616 F.2d 1080 (9th Cir.1980) (suspension of VA educational benefits required presuspension process).

Bergna next contends that the post-deprivation process afforded Finkelstein was sufficient to meet the requirements of the due process clause. Bergna is again incorrect. Pursuant to the three-part test announced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 (1976), we have consistently held that where predeprivation process is feasible, it must be afforded before a person may be deprived of a protected interest. Sinaloa Lake Owners Ass’n. v. City of Simi Valley, 864 F.2d 1475, 1481-83 (9th Cir.), modified in unrelated part, 882 F.2d 1398 (9th Cir.1989); Merritt v. Mackey, 827 F.2d 1368, 1372 (9th Cir.1987); Vanelli v. Reynolds School District No. 7, 667 F.2d 773, 778 (9th Cir.1982).

The district court correctly concluded that Finkelstein alleged a violation of clearly established law and we accordingly affirm the denial of qualified immunity with regard to the property interest claim.

B

Finkelstein also claims that his suspension deprived him of a liberty interest without due process of law. Bergna again contends that it was not clearly established that a temporary suspension could implicate a liberty interest. We disagree. Goss, 419 U.S. at 574-76, 95 S.Ct. at 736-37 (tenday suspension implicated a liberty interest); see also Click v. Board of Police Comm’rs, 609 F.Supp. 1199, 1204 (W.D.Mo.1985) (three-day suspension implicated a protected liberty interest).

In Vanelli — a, discharge case — we stated that a liberty interest is “implicated if a charge impairs [one’s] reputation for honesty or morality. The procedural protections of due process apply if the accuracy of the charge is contested, there is some public disclosure of the charge, and it is made in connection with the termination of employment or the alteration of some right or status recognized by state law.” Vanelli, 667 F.2d at 777-78 (footnotes omitted and emphasis added). It is clear that Finkelstein’s honesty and morality were impugned when Bergna intimated that he had gained access to confidential personnel files in an unauthorized, underhanded, and perhaps illegal manner. Fink-elstein contested those publicly disclosed charges. He also alleges that his right to continued employment, a right or status conferred by state law, was altered by the suspension. Finkelstein thus alleges a cognizable liberty interest claim.

Bergna again argues that it was not clearly established that presuspension process is required when a liberty interest is at issue. He argues that the post-termination name-clearing hearing afforded to Finkelstein was alone sufficient to meet the requirements of due process. We have rejected that argument. Vanelli, 667 F.2d at 778 n. 8.

The district court correctly concluded that Finkelstein alleged a violation of clearly established law and we accordingly affirm the denial of qualified immunity on the liberty interest claim.

C

Bergna also contends that his suspension of Finkelstein was reasonable and authorized by state law, thereby entitling him to qualified immunity. This misconceives the question at issue. The question before us is not whether Bergna’s actions were reasonable under state law, but whether the challenged conduct violates clearly established federal law, here the due process clause of the fourteenth amendment. It is for the jury to decide whether Bergna’s conduct was reasonable. Brady, 859 F.2d at 1556; Thorsted v. Kelly, 858 F.2d 571, 575-76 (9th Cir.1988).

D

Bergna moved for summary judgment on the pendent state law claims and argued that Harlow immunity analysis should be applied to those claims. The district court rejected this argument. We agree with the district court and find this argument merit-less for the reason stated by the Seventh Circuit. Oyler v. National Guard Ass’n of United States, 743 F.2d 545, 554 (7th Cir.1984) (rejecting this argument as it would “obviously constitute an unwarranted interference by this court with the substantive law of [a state].").

II

The district court also concluded that Bergna was not entitled to qualified immunity on the first amendment claim. Because the law was not clearly established in 1982, we reverse.

It was clearly established by 1982 that public employees could not be disciplined solely for exercising first amendment rights. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Disciplinary action discouraging a candidate’s bid for elective office “represented] punishment by the state based on the content of a communicative act” protected by the first amendment. Newcomb v. Brennan, 558 F.2d 825, 828-29 (7th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (1977). It was also clearly established that suspensions could implicate first amendment rights. See Peacock v. Duval, 694 F.2d 644, 645 (9th Cir.1982) (suspension and discharge case); Porter v. Califano, 592 F.2d 770, 776 (5th Cir.1979) (thirty-day suspension implicated first amendment rights).

Nevertheless, it was not clearly established in 1982 that prosecutors were protected by the first amendment from such disciplinary action. In Elrod v. Burns, 427 U.S. 347, 367, 372, 96 S.Ct. 2673, 2686, 2689, 49 L.Ed.2d 547 (1976) (plurality opinion), the Supreme Court had recognized an exception to the general rule for public employees in policymaking positions. Several courts applied the Elrod exception to assistant prosecutors. See Mummau v. Ranck, 687 F.2d 9, 10 (3d Cir.1982) (per curiam); Newcomb, 558 F.2d at 829-31. The Supreme Court, in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), held that the Elrod exception did not extend to assistant public defenders. But in a footnote, the Court stated:

This is in contrast to the broader public 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 grounds of political party affiliation or loyalty.

Id. at 519 n. 13, 100 S.Ct. at 1295 n. 13 (citing Newcomb).

Newcomb is particularly on point to our analysis here. In Newcomb, a deputy city attorney told his superior that he intended to run for Congress. His superior threatened to fire him if he ran; Newcomb ran anyway and was discharged. The court upheld this blatantly political firing, concluding that Newcomb’s first amendment concerns were overridden by the city attorney’s need for absolute loyalty. Newcomb, 558 F.2d at 829-31. The court in Mum-mau echoed the same rationale.

Newcomb and Mummau turned largely on determinations that assistant prosecutors were policymaking officials, thus virtually at-will employees. The Newcomb court specifically recognized, in dicta, that a person with civil service status might be in a different and more protected position than a political appointee. 558 F.2d at 830. However, this distinction was not sufficiently clear from the case law in 1982 to deny a reasonable official in Bergna’s position qualified immunity from Finkelstein’s first amendment claim.

We cannot conclude, in light of preexisting law, that the unlawfulness of Bergna’s conduct was clearly established in 1982. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038. We hasten to add, however, that we reject the proposition that prosecutors have unfettered discretion to discipline assistant prosecutors for exercising their first amendment rights. Shortly after the Supreme Court decided Branti, it considered a first amendment challenge to the discharge of an assistant prosecutor. In Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Court concluded that Myers, an assistant prosecutor, had engaged in protected speech. Id. at 150-54, 103 S.Ct. at 1691-94. Even though it ultimately concluded that she could be discharged for other reasons, the Court made no reference to footnote 13 in Bran-ti ; Myers’ position as an assistant prosecutor was unimportant to the Court’s straightforward application of the general rule prohibiting discharge of public employees solely for exercising first amendment rights. See also Giacalone v. Abrams, 850 F.2d 79 (2nd Cir.1988) (applying traditional balancing of interests in § 1983 claim brought by a prosecutor for violation of first amendment rights).

Ill

For the foregoing reasons, we affirm the district court’s denial of Bergna’s motion for summary judgment on all but the first amendment claims. The district court’s denial of Bergna’s motion for summary judgment on the first amendment claim is reversed and summary judgment shall be entered against Finkelstein on that claim. All other claims may proceed to trial. Accordingly, each party shall bear their own costs. The decision of the district court is

AFFIRMED IN PART and REVERSED IN PART.