Professional Documents
Culture Documents
No. 96-2315
Plaintiffs, Appellants,
v.
Defendants, Appellees.
____________________
____________________
Before
____________________
was on
brief
Massachusetts.
Lawrence D.
Humphrey
_______________________
for
appellees
Therrien,
Internatio
Brotherhood
of
Police
Officers, Local
388,
and
the Internatio
Appellant
Robert Wagner,
____________________
August 1, 1997
____________________
COFFIN,
First
when
Amendment freedom
members of
of political
the city
council and
his
political support
lawsuit
The
alleging federal
district
failure
for
court
the
violated
others subjected
city's mayor.
First
him to
because of
He filed
dismissed the
this
law claims.1
Amendment
counts for
protect
association was
I. Factual Background2
__________________
Appellant
July 1991 by
Wagner asserts
that four
members
of
the
City
Council
who
were
Hamilton's
____________________
1 The complaint
behalf
of Wagner's
survives or
Wagner.
of consortium on
Because
this claim
do not
address it separately.
2 We
provide
note
a
that the
much
conduct than
appear
the facts
to
Because
of
the
Wagner's
dismiss.
complaint
defendants' alleged
described by counsel
at the
In reviewing
hearing on
a Rule
12(b)(6)
Belendez,
________
alleged in
sketchier picture
defendants' motion
dismissal,
facts
903 F.2d
49,
51 (1st
we ultimately uphold
Correa-Martinez
_______________
Cir.
v.
Arrillaga__________
1990) (emphasis
added).
the additional
section from
purposes of
true
and
both
the motion
grant
the
complaint and
to dismiss, we
all reasonable
the
take the
inferences
in
-2-
hearing.
For
allegations as
Wagner's favor.
him
for
the
appellant to
job
purpose
resign.
performance were
actions
were
He
embarrassing
and
the
mayor and
solely
inaccurate,
by
that
harassment against
unfair
motivated
political beliefs
further asserts
of
in a campaign of
the president
their
and
forcing
of his
that
to
his
He
of
opposition
their
the police
union,
and
through
conspired with
by
means
of
unspecified
defamatory statements.
"actions,"
At the
and
harassing him
numerous
false
and
They
were
constantly
subcommittees
up
to see the
benefits.
They
They reduced
They
him.
had
everything he did
salary.
criticizing
his salary.
refused to fund
him in
to eliminate his
They reduced
his
programs that he
was
pushing.
hire or
city charter to
According
to Wagner, the
____________________
In his
appellate briefs,
references to
Wagner
makes several
passing
in support
the
motion
of his arguments.
to
dismiss, and
The
the
complaint, the
district
court's
solely on
Our analysis
-3-
"led the charge" against him and secured the complicity of enough
Wagner resigned in
forced
to do so
hindered,
September 1994.
He asserts
that he was
This
claims
First
lawsuit followed.
under 42
U.S.C.
1983, which
assert violation
of his
tortious
interference
with contractual
motion to
court substantively
relations, and,
in his
R. Civ. P. 12(b)(6),
the district
It
____________________
Wagner.
the authority
Although the
city council may not have had explicit authority to terminate the
police chief, its authority
conditions
gave
it
the
accomplish
constructive
conditions
feel
to
working
compelled to
looming
forsake
his
job rather
than
to submit
to
Of course, a minority
________
of the council
attributable to the
alleged discrimination.
WL 9102, at
conduct actually
See generally
___ _________
95-1950-1952, 95-2100,
In any event,
June 10,
discharge
would not
be
actionable if,
as
here, the
affected
-4-
hands
police
of a
minority of
officer was
constitutionally
not
the city
of sufficient
significant
association right.'"
councilors and
burden
degree to
on
a subordinate
constitute 'a
[Wagner's]
political
(en banc)).
__ ____
The
been sufficiently
Wagner's
First
severe to
Amendment
is an
that, even if
implicate constitutional
claim still
court
would
appropriate requirement.
positions, the
ruled,
fail
concerns,
because the
political affiliation
are not
protected
by
hold such
the
dismissed
the federal
supplemental
claims, the
court
declined to
First
Having
exercise
The
Wagners then
filed this
appeal.
district
court's Rule
12(b)(6) dismissal is
Our
review of
de novo.
__ ____
the
Romero_______
recover
on any
Belendez, 903
________
viable theory.
Correa-Martinez v.
_______________
-5-
Arrillaga__________
protect Wagner
from
politically motivated
discrimination is
both
correct and
years ago
established
II. Discussion
__________
The Supreme
Court more
than twenty
from
adverse job
affiliation.
opinion);
See Elrod v.
___ _____
Branti
______
Republican Party,
________________
universal,
action
v.
solely
on
partisan
political
Finkel,
______
497 U.S.
however.
based
445 U.S.
62 (1990).6
507
(1980);
Rutan
_____
The protection
v.
is not
constitutionality of the
the
recognized
party
"to
sanctioned
insure
policies
which
the
electorate
has
those
that
continue for
of confidence.
____________________
5 Wagner contends
that
the
harassment
suffered
was
not
other holding,
constitutionally
We need
The
Supreme
Court
addressed
politically
motivated
At
various points
in
this
opinion,
we use
the
term
Such employees
communication of political
is an appropriate job
are "'involved in
ideas, or
policymaking, the
sensitive tasks
connected
-6-
Our circuit has since faced a long line of cases raising the
issue
have
of political discrimination
focused
on whether
the
particular position
plaintiff
protected
sphere.
See,
___
in employment, most
or outside the
of which
held
by the
First Amendment-
F.2d at
1212 & n.1, 1218 (noting "first wave" of cases involving outright
dismissals,
cases
involving
discharge).
norm.
and adopting
discriminatory
conduct
"second wave"
falling
short
of
Both
sufficiently
the principles
parties accept
that Wagner's
elevated him in
job as
police chief
that, under
political affiliation.
Wagner,
however, contends
that
he
was
subjected
to
an
impermissible constructive
the
official
policymaker
discharge because
who
hired
him
and
for
-- may
fire
him
based
on
because
the
policies of
sanctioned by
not
be
a new
incumbents.
This
by
political
as
affiliation
ensure that
-- "policies
obstructive
rationale
served
--
administration
the
he
was designed to
undercut
whom
provides
tactics
no
of
presumably
-- would
opposition
justification
for
____________________
-7-
-- to
harass the
administration's supporters.
Their
conduct,
Wagner's
Supreme
Court
applicability
and
First Circuit
of the Elrod-Branti
____________
of a new administration's
reality of precedent.
caselaw
have
Both
recognized the
patronage practices.
The
conflict in
Rutan,
_____
where the
Supreme Court
forbids
government
actions
such as
affiliation and
officials
from
At
issue
and
First Amendment
less-than-discharge
transfer on
political
was the
implementation
of a
of
an
hiring freeze,
with "exceptions"
In referring back
to
order proclaiming a
that the
basing
hiring, promotion,
new administration.
executive
held
Elrod and
_____
majority
employees
political
Branti
______
in the
broadly described
those
cases
opening paragraph,
as
protecting
the
public
party
in
power,
64.
opinion's
unless
party
affiliation
is
an
U.S. at
against
patronage practices,
certain categories
of highly
as
well
placed
as
the
exceptions
employees, apply
for
whenever
at 33-34, brings us
-8-
discrimination
during a
murder
investigation
because
of
his
stated:
The Supreme
"protects
public
Court has
held that
nonpolicymakers
service
on
the
the First
from being
basis
of
Amendment
drummed
their
. . .
out of
political
But Romero-
credibility
within
his own
party
views' have
to undermine
and
with the
electorate."
659,
661 (1st
Cir. 1996)
(noting as
a general
principle that
employees
from
discrimination
based
on
their
political
beliefs
or
a recognition
people's will
is
matched by
political
opponents
viewpoints
and
minority
to
the
exert
constituents.
members of
the
Holyoke
equally legitimate
right
pressure
on
behalf
of
Indeed,
like
the
mayor,
City
Council
of
their
the
represented
that they
supported them.
in
policy,
matters
of
and
the
unfortunate
fact
that
some
-9-
by-product of
our long-standing
organization of political
life
competing
public
First Amendment
interests
by excluding
policymaking
at
1215 (quoting
Elrod
_____
Amendment interests
F.2d
1331,
1334
to
the effect
on both
(7th
that
sides"); Pieczynski
__________
Cir.
1989)
(noting
were
hired
partisan
to
implement,
"there are
can be
expected
v. Duffy,
_____
"the
First
875
balance").
to
face
efforts by outsiders
stinging
seeking to
insiders.
because of
Wagner
was in
in different
least when
within their
particularly
albeit
vulnerable position
ways --
to terminate
authority --
his employment.
exerted by those in
At
power is
not provide a
We
add
circumstances.
that
the
this
comment
of
appellant's
particular
level
about
constructive
Amendment violation
-- we
by political opponents
discharge
quail at the
constituted
prospect of
rising to
First
judges and
____________________
-10-
juries
being inundated
their
opponents
had
by claims
of
unhappy politicians
transgressed
the
boundary
that
between
Partisan politics
Marquess of Queensberry.
appellant
one,
Wagner's position as
the district
court
properly
held that
he
a policymaking
had no
First
his politics.
the
other
issues
surrounding
his
unnecessary to consider
First
Amendment
claims,
including
the
adequacy
of
his
allegations,
the
scope
of
motives
of
council
a four-member
minority
of
fifteen-member
dismissal
of the
state law
claims
city
In these circumstances,
also is
appropriate.
See
___
-11-