Keri Borzilleri v. Marilyn Mosby

874 F.3d 187, 2017 WL 4625327, 2017 U.S. App. LEXIS 20245
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 17, 2017
Docket16-1751
StatusPublished
Cited by13 cases

This text of 874 F.3d 187 (Keri Borzilleri v. Marilyn Mosby) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keri Borzilleri v. Marilyn Mosby, 874 F.3d 187, 2017 WL 4625327, 2017 U.S. App. LEXIS 20245 (4th Cir. 2017).

Opinion

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Traxler and Judge Agee joined.

WILKINSON, Circuit Judge:

This case arises out of appellant Keri Borzilleri’s suit alleging that appellee Marilyn Mosby fired her for supporting Mos-by’s political rival, thereby violating Borzil-leri’s First Amendment rights. The district court determined that, as an Assistant State’s Attorney, Borzilleri was a policymaker exempt from the First Amendment’s protection against patronage dismissals. We affirm. To hold otherwise would undermine the public mandate bestowed upon the victor of a hard-fought election ' and would needlessly interfere with a state official’s managerial prerogative.

I.

A.

On January 5, 2015, Marilyn Mosby took office as Baltimore City State’s Attorney, an elected position with authority over more than one hundred prosecutors. Four days later, Mosby fired Assistant State’s Attorney Keri Borzilleri without explanation. As an ASA for nine years, Borzilleri had made charging decisions, negotiated plea deals, and tried serious cases. Near the end of her tenure, she had also served as one of the office’s three “Community Prosecutors,” tasked with prosecuting complex crimes and liaising with local police and city residents. Borzilleri’s performance was, by her account, exemplary. She alleges—and for the purposes of resolving this appeal, we assume—that the sole motivation for Borzilleri’s termination was her prior support for Mosby’s political opponent.

The trouble began in 2014, when Borzil-leri took sides in a bruising Democratic primary battle for Baltimore City State’s Attorney. She.supported Gregg Bernstein, the incumbent, over , Mosby, a former colleague. Although Borzilleri had no official role in Bernstein’s campaign and never donated money to it, she attended Bernstein’s campaign events, placed a Bernstein sign in front of her home, and hosted a gathering of approximately twenty Bernstein supporters. Photos of the' event appeared on Facébook. According to Borzil-leri, her once-cordial relationship with Mosby quickly soured. Borzilleri alleged that on two occasions after she began supporting Bernstein, Mosby glared at her and declined to acknowledge her in public.

Mosby defeated Bernstein in the June 2014 primary and went on to win the general election that November. Three days after Mosby took office, a newly appointed political deputy asked Borzilleri about Bernstein’s campaign. She explained her role. The following day, she was fired without cause.

B.

Borzilleri -filed suit against Mosby in the District of Maryland on December 9, 2015. She sought damages under 42 U.S.C., § 1988 for violations of her First Amendment rights to free speech and free association, for violations of her freedoms of speech and association guaranteed by Article 40 of thq Maryland Declaration of Rights, and for abusive discharge under Maryland tort law. Mosby filed a motion to dismiss all counts for failure to state a claim upon.which relief can be granted..

On May 31, 2016, the district court granted Mosby’s motion. Borzilleri v. Mosby, 189 F.Supp.3d 551 (D. Md. 2016). It dismissed with prejudice Borzilleri’s state and federal free association claims and her federal free speech claim, and dismissed without prejudice her remaining state law claims. As to Borzilleri’s free association claims, the district court concluded that a Baltimore City ASA was a, policymaker under the Supreme Court’s decisions 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), and that political loyalty to the State’s Attorney was thus an “appropriate requirement” for the job. 189 F.Supp.3d at 660. Because Maryland courts interpret Article 40’s freedom of association protections in pari mdteria with the First Amendment’s, the district court resolved the state law association claim on the same grounds. The district court also relied on Borzilleri’s status as a policymaker to resolve her federal free speech claim, holding that “where political affiliation is a proper requirement” for employment, the “balance [of interests] tips decisively in favor of the government.” 189 F.Supp.3d at 562. Alternatively, the district court held that Mosby was entitled to qualified immunity on both federal claims. With the state free speech claim and the abusive discharge claim resting on distinct state law questions, and no other federal issues before it, the court dismissed Borzilleri’s remaining state law claims without prejudice.

This .appeal followed. In reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6), we review questions of law de novo and accept pleaded facts as true. King v. Rubenstein, 825 F.3d 206, 212, 214 (4th Cir. 2016).

II.

We; first consider whether Borzilleri’s firing violated her First Amendment right to free association.

The Supreme Court first confronted the constitutionality of political patronage in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). A plurality of the Court concluded that conditioning public employment on party loyalty was tantamount to a system of “coerced belief’ in violation of the First Amendment’s guarantee of free association. Id. at 355, 96 S.Ct. 2673. And although there was no majority opinion, Elrod came to stand for the proposition that under the First Amendment, “a nonpolicymaking, nonconfidential government employee” cannot be “discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs.” Id. at 375, 96 S.Ct. 2673 (Stewart, J., concurring in the judgment). As those qualifiers suggest, the decision carved out a narrow exception for policymakers or other sensitive government positions.

Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), clarified the policymaker exception to the prohibition on patronage firings. In holding that public defenders were not policymakers, the Court explained that “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.” Id. at 518, 100 S.Ct. 1287.

Guided by those precedents, this court has adopted a two-part test for determining whether a . particular position is a policymaking one and therefore exempt from the constitutional prohibition on patronage dismissal. See Stott v. Haworth, 916 F.2d 134 (4th Cir. 1990). First, we ask whether “the position involve[s] government decisionmaking on issues where there is room for political disagreement on goals or their implementation.” Id. at 141.

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Bluebook (online)
874 F.3d 187, 2017 WL 4625327, 2017 U.S. App. LEXIS 20245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keri-borzilleri-v-marilyn-mosby-ca4-2017.