Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-1996

Carver v. Foerster
Precedential or Non-Precedential:

Docket 96-3008




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                              No. 96-3008



     PHYLLIS CARVER; THOMAS FOX; APRIL MOORE; ROBERTA RUDOLPH

                                  v.

       TOM FOERSTER, an individual and Chairman, Allegheny
            County Commissioners; COUNTY OF ALLEGHENY

                                       Appellants.




         On Appeal from the United States District Court
            for the Western District of Pennsylvania
               (D.C. Civil Action No. 93-cv-00912)




                                Argued September 17, 1996

        Before: BECKER, NYGAARD and ROTH, Circuit Judges

                (Opinion Filed December 12, 1996)




Paul D. Boas, Esq. (Argued)
Mark D. Lancaster, Esq.
Berlin, Boas & Isaacson
429 Fourth Avenue
1906 Law & Finance Building
Pittsburgh, PA 15219

          Attorneys for Appellees


Mark R. Hornak, Esq. (Argued)
Gregory A. Miller, Esq.
Buchanan Ingersoll Professional Corporation
One Oxford Centre
301 Grant Street
20th Floor
Pittsburgh, PA 15219-1410

          Attorneys for Appellants




                       OPINION OF THE COURT




Roth, Circuit Judge:

         Plaintiffs brought suit under 42 U.S.C. § 1983 against
Allegheny County and Tom Foerster, Chairman of the Board of
Commissioners of Allegheny County and a member of the Allegheny
County Salary Board, charging that Foerster had eliminated their
jobs with Allegheny County because they supported Joe Brimmeier
in the Democratic primary for Prothonotary. Allegheny County and
Foerster moved for summary judgment based on absolute legislative
immunity because plaintiffs' positions had been eliminated by a
vote of the Salary Board. Foerster also claimed qualified
immunity for his actions as a member of the Salary Board. The
district court denied the motions on the ground that Foerster was
not entitled to absolute or qualified immunity for his pre-vote
activities and that municipalities do not enjoy legislative
immunity from Section 1983 suits.   Both defendants appeal the
denial of absolute legislative immunity. We agree with the
district court's reasoning and will affirm.
                           I. Facts
      Tom Foerster was Chairman of the County Board of
Commissioners and a member of the Salary Board throughout the time
the events in question took place. The Allegheny Salary Board is
composed of four members: three County Commissioners and the
County Controller. The Board sets the maximum and minimum salary
range for County jobs. It is also the only entity within the
County with the power to create or eliminate positions.
     In May 1991, Joe Brimmeier, a former aide to Foerster,
ran in the Democratic primary for the position of Prothonotary of
Allegheny County. Foerster vocally opposed Brimmeier's candidacy.
The four plaintiffs actively supported Brimmeier in the primary
election. Brimmeier lost.
     Foerster was re-elected Commissioner in November, 1991.
 Following the election, James Dodaro, the County Solicitor,
notified Foerster of his plan to resign at the end of the year.
Foerster appointed Ira Weiss to replace Dodaro as of January 6,
1992. On January 3, three days before his appointment was
effective, Weiss fired plaintiffs, Roberta Rudolph and April Moore,
and told them that their positions as administrative assistant and
Risk Manager were being eliminated.   When Dodaro intervened to ask
Weiss to keep Rudolph and Moore, Weiss reportedly replied, "No,
they want them out now." Rudolph and Moore were offered alternate
positions as typists at approximately half their salaries. They
rejected these positions. On January 8, 1992, five days after
notifying Rudolph and Moore that their jobs were eliminated, Weiss
signed a request asking the Salary Board to eliminate nine
positions, including those held by Rudolph and Moore. On January
16, 1992, the Salary Board unanimously approved the request.
      Plaintiffs Phyllis Carver and Thomas Fox held positions
in the Department of Development. Carver was a planning and
evaluation specialist, and Fox was manager of marketing. Shortly
after Brimmeier's candidacy for Prothonotary failed, Foerster
allegedly had Wayne Fusaro, one of his Executive Aides, compile a
"hit list" of Brimmeier supporters. The list reportedly included
Carver and Fox.
       On June 19, 1992, George Braun, the Director of
Development, notified Carver and Fox that he was eliminating their
positions because of budgetary concerns. Two other positions within
the Department of Development were eliminated at the same time.
Braun submitted his request for Salary Board action on June 12, and
the Salary Board unanimously approved his recommendation for
termination on June 18. Neither Fox nor Carver were offered
positions elsewhere in county government.
     According to the defendants, Braun's elimination of the
positions was spurred by a Federal Housing and Urban Development
audit, which had found excessive administration expenses by the
department. The defendants assert that the positions were
eliminated as part of a larger attempt to keep down administrative
costs. The defendants further contend that at the same two
sessions that the plaintiffs lost their positions, the Salary Board
took additional actions affecting 19 other county departments,
resulting in the elimination of twenty two other positions. In her
Report and Recommendation, however, the magistrate judge noted that
about the time Fox and Carver's positions were eliminated, three
new positions were created in the Department of Development and
other employees received raises.
     The plaintiffs assert that the Salary Board would
automatically approve any proposal to eliminate jobs without
independent consideration and that once Foerster made it known that
he wanted plaintiffs' positions eliminated, the vote of the Salary
Board was a mere formality.
     On June 9, 1993, the plaintiffs filed suit against
Allegheny County and against Foerster, individually and in his
official capacity as Chairman of the Allegheny County Board of
Commissioners. After extensive discovery, defendants filed for
summary judgment. The magistrate judge denied defendants' motion.
The District Court adopted the magistrate judge's report and
recommendation. Defendants have appealed that portion of the
District Court's decision relating to absolute legislative
immunity, as well as those defenses "inextricably intertwined" with
their immunity claims.
            II. Jurisdiction and Standard of Review
     Ordinarily, this court does not have jurisdiction to
review a lower court's denial of summary judgment since a denial of
summary judgment does not constitute a "final decision" within the
meaning of 28 U.S.C. 1291. See In re City of Philadelphia
Litigation, 

, 956 (3d Cir.), cert. denied, 

(1995). When the summary judgment motion is premised on absolute
immunity, however, the district court's denial is immediately
appealable because it falls within the collateral order doctrine:
"that small class [of orders] which finally determine claims of
right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of
the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated." Cohen v. Beneficial
Industrial Loan Corp., 

, 546, 

, 1225-26
(1949).
     Absolute immunity is an issue of law, separable from the
merits of the case, which once denied cannot effectively be
preserved for later review by an appellate court.   "[T]he denial
of a substantial claim of absolute immunity is an order appealable
before final judgment, for the essence of absolute immunity is its
possessor's entitlement not to have to answer for his conduct in a
civil damages action." Mitchell v. Forsyth, 

, 525, 

, 2815 (1985) (ruling on qualified immunity immediately
appealable). See also See also Nixon v. Fitzgerald, 

,
741-43, 

, 2697-98 (denial of presidential immunity
immediately reviewable on appeal) and Acierno v. Cloutier, 

, 606 (3d Cir. 1994): "The Nixon case makes clear that we have
appellate jurisdiction to consider whether the former members of
the County Council are entitled to absolute legislative immunity."

     A district court's denial of summary judgment, premised
on absolute legislative immunity, is therefore immediately
appealable. For this reason, we have jurisdiction to consider the
district court's denial of summary judgment with regard to the
immunity claims. Moreover, because absolute immunity is a purely
legal question, we exercise plenary review over the district
court's decision. 

, citing Donivan v.
Dallastown Borough, 

, 487 (3d Cir. 1987) cert. denied495 U.S.
1035, 

(1988).
    III. Foerster's Individual Claim to Legislative Immunity     According
to Foerster, he is entitled in his individual
capacity to absolute legislative immunity from suit because of his
membership on the Salary Board, the governing body that ultimately
approved the elimination of the plaintiffs' positions with the
County. Plaintiffs respond that their complaint does not concern
Foerster's vote as a member of the Salary Board but is directed at
the actions he took prior to and independent of that vote in order
to persuade his department heads to bring about the elimination of
their positions. The parties focussed a great deal of their
argument on the question whether the Salary Board acted legisla-

tively or administratively when it voted to do away with the
plaintiffs' positions. We do not find, however, that the status of
the Salary Board is the dispositive question of individual immunity
in this case. Rather, the issue is whether Tom Foerster's pre-vote
actions as a Commissioner can be separated from his vote as a
Salary Board member.
     We will start our analysis with an examination of the
general principles of legislative immunity and how it applies to
local legislators in § 1983 cases. Under 42 U.S.C. §1983, "Every
person who, under color of any statute, ordinance, regulation,
custom, or usage ... subjects, or causes to be subjected any
citizen ... or other person ... to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress." The term "persons"
includes local and state officers acting under color of state law.
See Hafer v. Melo, 

, 

(1991). The Supreme
Court has recognized, however, that public officials, sued in their
individual capacities, may under certain circumstances enjoy
immunity from § 1983 suits. In Tenney v. Brandhove, 

,

(1951), the Supreme Court held that the doctrine of
legislative immunity, as applied to state legislators, survived the
enactment of § 1983. In Lake Country Estates, Inc. v. Tahoe
Regional Planning Agency, 

, 

(1971), the
Court extended the doctrine of absolute legislative immunity to
members of a regional legislature. Finally, in Aitchison v.
Raffiani, 

(3d Cir. 1983), this circuit, following the
example of our sister circuits, held that local legislators enjoyed
absolute immunity from personal liability under 42 U.S.C. § 1983
for acts taken in their legislative capacities.
     In Aitchison, we considered whether a mayor and borough
attorney were entitled to immunity for the passage of an ordinance,
which abolished the position of building inspector. We recognized
in Aitchison that executive officials might exercise legislative
power along with their administrative duties, and we adopted a
functional approach to the question of when immunity should apply.
"In appraising the mayor's need for absolute immunity, we look to
the function the individual performs rather than his location
within a particular branch of government." 

. Using this functional approach, we found that the mayor was
entitled to absolute immunity for the act of voting for an
ordinance that resulted in the abolition of an employment position.
Because the complaint sought compensation for the mayor's vote and
established "active participation by the mayor in the legislative
process," the mayor was immune from liability for damages under
Section 1983. 

we have repeatedly stated that a public
official's legislative immunity from suit attaches only to those
acts undertaken in a legislative capacity. "It is only with
respect to the legislative powers delegated to them by the state
legislatures that the members of local governing boards are
entitled to absolute immunity." Ryan v. Burlington County, New
Jersey, 

(3d Cir. 1989); 

.    In

, we devised a two-pronged test for
determining whether or not a municipal body's action was "legisla-

tive" or "administrative" in character. To be legislative, the act
must be (1) substantively legislative, such as "policy-making of a
general purpose" or "line-drawing"; and (2) procedurally legislati-

ve, such that it is "passed by means of established legislative
procedures". We refined the first prong of this test in Aciernowhen we
held that although the number of persons affected by a
given decision might be an important factor in the two-part
immunity analysis, it was not dispositive.
     Using this same approach, we conclude that Tom Foerster
is not entitled to legislative immunity for any non-legislative
actions he took to abolish the plaintiffs' positions. In coming to
this conclusion, we will assume, without deciding, that the Salary
Board's vote to eliminate plaintiffs' positions was "legislative"
in nature. In addition, we will assume that a legislative body's
decision to eliminate a government position, in contrast to the
mere termination of a person's employment, is legislative activity.
See Rataree v. Rockett, 

(7th Cir. 1988).   Neverthe-

less, we do not think that such legislative activity by the Salary
Board shields Tom Foerster from liability. As a County Commission-

er, Foerster acted in various capacities -- legislative, executive
and administrative. In giving a unilateral order to have Brimmeier
supporters fired, Foerster would not be engaging in policy-making
of general application regarding the expenditure of County funds,
but would be making either an executive decision on how the
anticipated cutback should be implemented or an administrative
decision that certain individuals should be fired. Actions taken
in a executive or administrative capacity are not entitled to
absolute immunity.
     Plaintiffs have not named the Salary Board in their
complaint; neither do they cite Foerster's vote as a Salary Board
member as part of their claim. Rather, they seek restitution for
the course of conduct -- harassment, threats, and retaliation -- in
which Foerster allegedly engaged prior to and independent of the
Salary Board's vote. Even if the Salary Board's decision was part
of a policy to cut waste from the county government, Foerster's
conduct, if proven, constituted retaliatory conduct targeted at
specific individuals because of their support for a political
adversary. If Tom Foerster used his position as Commissioner to
"punish" county workers for their support of Brimmeier, that abuse
of power for personal ends cannot be made "legislative" simply by
eliminating plaintiffs' positions instead of firing them outright.
Were the Salary Board nonexistent and Tom Foerster able to
eliminate County positions without any legislative approval
whatsoever, we have no doubt that he could be held liable under
Section 1983.
     In addition, we do not think Foerster's actions are
necessarily rendered "legislative" by the Salary Board's ultimate
vote in favor of eliminating plaintiffs' jobs. An unconstitutional
or illegal course of conduct by county government does not fall
within the doctrine of absolute immunity merely because it is
connected to or followed by a vote of a county board. For example,
in Bartholomew v. Fischl, 

(3d Cir. 1986), we held
that the director of a health bureau created by the cities of
Allentown and Bethlehem could maintain an action against the mayor
of Allentown for persuading the two city councils to dissolve the
health bureau and thereby eliminate the director's position.
Bartholomew brought suit for his dismissal against both the City of
Allentown and the mayor. In reversing the district court's
dismissal of the case, we stated that the mayor's persuasion of the
city council constituted "official city policy" and was sufficient
to sustain a claim against the city under Section 1983.
                    "Indeed, as Mayor Fischl was powerless to discharge
                    Bartholomew himself, the Mayor's only available means
of
                    effecting appellant's termination was to persuade the
                    city council of Allentown, the city's official
lawmakers,
                    to dissolve the BiCity Board of Health and the Bureau
                    altogether, thereby eliminating Bartholomew's
position.
                    It is this course of conduct that Bartholomew refers
to
                    [in his complaint] ...."

          

. In recognizing Bartholomew's
claim
against the city, we specifically noted the mayor's role in
securing his release, concluding, "Defendant Fischl, as Mayor of
Allentown, was certainly a government official with policy-making
powers ...."Id. Despite our awareness of Fischl's position as
mayor, we did not dismiss Bartholomew's suit against him.
Although our holding may not address the question of absolute
immunity, it nevertheless supports the principle that an official's
executive or administrative actions are separable from actions
taken in a legislative capacity.   See also Meding v. Hurd, 

, 1110 n. 28 (D.Del. 1985) (actions of Town Council in
terminating the police chief are not legislative merely because
termination was achieved by a vote of the council).
     Moreover, we reject defendant's assertion that Foerster
is entitled to immunity because he could not have caused the
plaintiffs to lose their positions without the support of at least
two of the three other members of the Allegheny Salary Board.
Causation is not an issue in this case at this time. Causation
relates to the merits of plaintiffs' claims, not to the question of
absolute immunity. The issue of causation is a fact-driven
inquiry, requiring the district court to make findings about the
role both of Foerster and of the Salary Board in eliminating the
plaintiffs' positions.   At this stage in the litigation, we lack
jurisdiction to consider a factor, such as causation, which goes to
the merits of plaintiffs' claims. See Johnson v. Jones, 115 S.Ct.
2151(1995). Although defendant's causation argument may have some
bite at a later stage, it has no bearing on the issue of absolute
legislative immunity for Foerster's pre-vote activities.
     Finally, we are satisfied that our rejection of absolute
immunity as applied to Foerster will not, as defendants suggest,
open the floodgates for future plaintiffs wishing to attack
legislators for their votes on controversial budgeting matters. We
hold only that the doctrine of absolute immunity, as it pertains to
local legislators, does not shield executive officials from
liability for a course of conduct taken prior to and independent of
legislative action, even if those officials were simultaneously
members of the local legislative body that ratified the conduct.
In a situation similar to the one we considered in Aitchison,
disgruntled constituents cannot pursue government officials simply
because budgetary constraints or organizational efficiencies have
dictated the elimination of a job. A specific employee can,
however, challenge a county executive who misuses public office to
get rid of that employee's job because the employee's political
activities have displeased the county executive.
        IV. The County's Claim to Legislative Immunity
     The district court also held that the Allegheny County
and Tom Foerster in his official capacity were not entitled to
legislative immunity from suit under Section 1983. For the reasons
set forth below, we will affirm this holding as well.
     Our resolution of this issue necessarily begins with the
Supreme Court's decision in Monell v. Department of Social Services
of City of New York, 

, 

(1978). In
Monell, the Court overruled a portion of Monroe v. Pape, 

, 

(1961), to find municipalities liable as
"persons" under Section 1983. "[I]t is when execution of a
government's policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is
responsible under Section 1983." 

, 98 S.Ct.
at 2037-38 (emphasis supplied).   The phrase "made by its lawmak-

ers," practically forecloses the argument that the Court meant to
leave open the possibility that local governments were entitled to
legislative immunity under Section 1983.   In addition, the Court
rejected the municipality's argument that it was entitled to
absolute immunity "lest our decision that such bodies are subject
to suit under §1983 ‘be drained of meaning.'" 

, 98 S.Ct. at 2041, quoting Scheuer v. Rhodes, 

,
248, 

(1974).    The Court in Monell stopped short
of imposing respondeat superior liability on local governments.
Its subsequent decisions have, however, steadfastly adhered to the
general principle that local governments will be held responsible
under § 1983 for their violations of constitutional and federal
rights.   As long ago as 1979, the Court in Lake Country Estates,
Inc. v. Tahoe Regional Planning Agency, 

, 

(1979) extended legislative immunity to regional legislators. More
important for our purposes, the Court also implied in Lake County
Estates that the regional governing body had no such immunity,
stating: "If the respondents have enacted unconstitutional
legislation, there is no reason why relief against TRPA itself [the
Tahoe Regional Planning Agency] should not adequately vindicate
petitioners' interests." 

99 S.Ct. at 1179 n. 29
(citations omitted). This statement alone calls defendants'
argument into serious doubt.
     Shortly thereafter, in Owen v. City of Independence, 

, 

(1980), the Court held that municipali-

ties lacked qualified immunity under Section 1983. Justice
Brennan's reasoning in the majority opinion in Owen bears on our
resolution of this case. First, Brennan noted the language of §
1983, which makes no mention of immunities or any exceptions to the
scope of liability. "Its language is absolute and unqualified; no
mention is made of any privileges, immunities, or defenses that may
be asserted." 

, 100 S.Ct. at 1398. Neverthe-

less, the Court conceded, some common law immunities were so fully
entrenched at the time the Civil Rights Act was passed in 1871,
that they were implicitly incorporated into the Act.
     The Court then considered whether any type of immunity
protected local governments in 1871 and found two. The first, the
distinction between governmental and proprietary acts, was ruled
out as a basis of immunity under § 1983 because it was a form of
sovereign immunity, abrogated by Congress, "the supreme sovereign
on matters of federal law," when it included local governments as
"persons" within the Civil Rights Act's scope of liability. 

100 S.Ct. at 1413. The second doctrine of immunity,
which protected municipalities for "discretionary" activities of a
public or legislative nature, was equally inapplicable because "a
municipality has no ‘discretion' to violate the Federal Constitu-

tion; its dictates are absolute and imperative." 

100
S.Ct. at 1414. Thus, neither doctrine of immunity supported the
City's claim of qualified immunity under § 1983.
     The Supreme Court further increased municipal exposure to
liability in Pembaur v. City of Cincinnati, 

, 

(1986), when it held that a single decision of a municipal
ity's "properly constituted legislative body" could subject it to
liability under § 1983. 

106 S.Ct. at 1298. Pembaurleaves
little, if any room, for the argument that the Court meant
to "preserve" municipal legislative immunity.
     Recently, in Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, the Supreme Court reinforced
its expansive interpretation of § 1983 liability when it rejected
a district court's heightened pleading standard for suits brought
against local governments. Referring to Owen and Monell, the Court
declared, "These decisions make it quite clear that, unlike various
government officials, municipalities do not enjoy immunity from
suit - either absolute or qualified - under § 1983." 

.
     The Supreme Court's past treatment of local governments
under Section 1983 compels our decision today that Allegheny County
is not entitled to legislative immunity in this case. Were we to
hold in defendants' favor, we fear this doctrine of "legislative
immunity" would cut away the core principle of Monell and Owen:
Local governments, unlike individual legislators, should be held
liable for the losses they cause. Moreover, a doctrine of
legislative immunity for local governments might have the
undesirable effect of encouraging a county council to adopt all of
its policies through a series of legislative actions passed by a
newly created "Board" or "Council".
     Other policy concerns also support our analysis. First,
we do not believe local governments face the same mix of perverse
incentives as individual legislators when sued or threatened with
a lawsuit. When a legislator considers a piece of legislation, we
expect him to consider the best interests of the people he serves,
not the size of his own wallet. As the Supreme Court has recog-

nized, "In many contexts, government officials are expected to make
decisions that are impartial or imaginative, and that above all are
informed by considerations other than the personal interests of the
decisionmaker." 

, 108 S.Ct. at 542. If
the legislator is held personally liable for suit, however, even
the most conscientious public officer will be encouraged to vote
against legislation that may be beneficial for the community at
large for fear that personal liability will outweigh his genuine
interest in helping his constituents. The public officer will
think less about the needs of the city or the county, in order to
protect his own monetary and personal interests. Or, he may even
decide to forgo public office altogether. See Wood v. Strickland,

, 

(1975). In sum, the result of personal
liability is the chilling of potentially beneficial legislative
activity and the distraction of public officials from community
matters. "In this way, exposing government officials to the same
legal hazards faced by other citizens may detract from the rule of
law instead of contributing to it." 

concerns do not arise when local governments are
held liable for violations under § 1983. First, city or county
liability for constitutional violations only adds to the collective
risk of loss that the legislator already should be considering when
he decides whether or not to enact a new piece of legislation. If
a county policy causes a constitutional wrong, the county should be
made to bear the losses caused by that violation. As Justice
Brennan explained in Owen, the central purpose of the Civil Rights
Act was to provide citizens with a remedy against those who had
abused state power. "It hardly seems unjust to require a municipal
defendant which has violated a citizen's constitutional rights to
compensate him for the injury suffered thereby. Indeed Congress
enacted §1983 precisely to provide a remedy for such abuses of
official power." 

, 100 S.Ct. at 1417.
     In addition, liability on the part of the local
governing body may deter future unconstitutional legislation,
thereby contributing to the enforcement of constitutional norms
within our society. "The knowledge that a municipality will be
liable for all of its injurious conduct ... should create an
incentive for officials who may harbor doubts about the lawfulness
of their intended actions to err on the side of protecting
citizens' constitutional rights." 

100 S.Ct. at 1416.
Efforts to enact legislation that causes harm to the community
(including the compensation paid for violation of constitutional
rights) should be chilled.
     Finally, because a legislator's own money is not at
risk, county liability does not distract the legislator from his
job of serving the community's interests. True, the legislator
must contend with lawsuits brought against the county, but that
distraction is borne equally by the local populace as a whole (at
least in tax dollars) and not by any particular individual. If a
county council forgoes enactment of legislation because it fears
potential liability for the county under § 1983, its decision
reflects a rational calculation that, whatever a given policy's
benefits, its risk of liability outweighs its collective benefit to
the community. This is exactly the type of reckoning we want to
encourage our legislators to make.
     Defendants argue, however, that legislative immunity for
the county is necessary to protect legislators from judicial
inquiry into their motives in enacting legislation. This argument
lacks weight given the intent-based inquiry of certain doctrines of
Constitutional law. "Developments in federal law over the last 30
years have tied the constitutionality of many types of municipal
legislation directly to the purpose and motive of the legislation."
Goldberg v. Town of Rocky Hill, 

, 75 (2d Cir. 1992)
(citing cases). For better or worse, lawsuits concerning constitu-

tional matters such as equal protection, the First Amendment, and
substantive due process all require judicial inquiry of the
legislator's motive. See Arlington Heights v. Metropolitan Housing
Development Corp., 

, 

(1977) (proof of
discriminatory motive necessary to show violation of Equal
Protection Clause); Bello v. Walker, 

, 1129 (3d Cir.
1988), cert. denied, 

, 

(1988) (deliberate
and arbitrary government decision, including one "tainted by
improper motive," violated developer's substantive due process
rights) and Grant v. City of Pittsburgh, __ F.3d __, __ (3d Cir.
1996)(evidence of officer's intent admissible when intent is
integral element of underlying constitutional violation). These
cases illustrate that judicial inquiry of legislative motive is not
per se forbidden. We therefore will not undercut core doctrines of
Constitutional law by applying legislative immunity to municipali
ties under § 1983.
     Finally, we note the uniform manner in which our sister
circuits have dealt with this issue.   See Berkley v. Common
Council of City of Charleston, 

(4th Cir. 1995), cert,
denied, 

(1996); 

; Reed v.
Village of Shorewood, 

; Kuzinich v. County of Santa
Clara, 

(9th Cir. 1982); Hernandez v. City of
Lafayette, 

(5th Cir. Unit A May 1981), cert. denied,

, 

(1982). We know of no circuit that
currently accepts the doctrine of municipal legislative immunity
under Section 1983.
                        IV. Conclusion
For the reasons stated above, we will affirm the district court's
judgment against the defendants insofar as it holds that neither
Tom Foerster, in his individual or official capacity, nor Alle-

gheny County are entitled to legislative immunity in this case.



Phyllis Carver; Thomas Fox; April Moore; Roberta Rudolph v. Tom
Foerster, an individual and Chairman, Allegheny County Commis
sioners; County of Allegheny, Appellants, No. 96-3008.
BECKER, Circuit Judge, concurring.
                                I.
         In 1976, over a strong dissent by Justice Powell, the
Supreme Court announced its decision in Elrod v. Burns, 

(1976), holding that the First and Fourteenth Amendments
prohibit the dismissal of certain government employees on the
basis of political affiliation. In Branti v. Finkel, 

(1980), over a similar Powell dissent, the Court clarified
Elrod by making clear that: (1) Elrod prohibits dismissal on the
basis of party affiliation even if the discharged employee cannot
show that he or she was coerced into changing his or her politi
cal allegiance; and (2) government employees can be dismissed for
their party affiliation only when the government can show that
certain political beliefs are necessary to carry out the duties
of those offices. Then, in Rutan v. Republican Party of Illi
nois, 

(1990), the Court extended the Elrod principle
to include hiring as well as firing. But Justice Scalia, un
daunted by a decade and a half of Elrod's hegemony, wrote a
powerful dissent, building upon the words of Justice Powell, and
assailing the Elrod-Branti-Rutan trilogy as not only amounting to
bad constitutional law, but also as reflecting a deep misunder
standing of the essential role that the patronage system has
played in American history and political tradition.
         As this recitation suggests, the view that the Elrod-
Branti-Rutan trilogy was a serious mistake will not die. That it
will not is, I suspect, because of the compelling logic of the
Powell and Scalia arguments, described infra, as well as the fact
that the total domination of election campaigns by money and
special interests that we have seen in recent years not only adds
fuel to the fire of the Powell and Scalia arguments, but renders
them prophetic. The need to reexamine the trilogy, which is what
I will argue for, is thus counseled by new developments in the
years since the trilogy was complete. The need is doubled in
spades by the extreme result in the present case.
     The "extreme result" is that the majority has been led
by the Elrod trilogy to rule, in effect, that any political
leader who advises his political associates to discharge a
political opponent may be subject to suit under 42 U.S.C. § 1983
for a First Amendment violation. Although the present defendant,
"Boss" Foerster, is a public official and a member of the Salary
Board, under the majority's logic, Foerster would be liable as a
§ 1983 co-conspirator if he were a private citizen-political boss
who gave the same "orders" he is charged with giving here, to me
a quite startling proposition. This result causes me to question
whether there is now any limit to examination in the courts or
under the aegis of the courts (through depositions and interroga
tories) of any government personnel or procurement decision that
gores the ox of someone who can claim political foul. And, query
whether there is any limit to the judicial examination of the
mental processes and conversations of defendants in such cases.
If there is not, the fundamental premise of representative
government -- that it is our public officials who are held
accountable for their actions at the ballot box rather than their
political "bosses" -- seems not only challenged, but also under
mined.
         The 1996 election campaigns were startling in the
extent to which the influence of money and special interest
groups so clearly dwarfed the role of the political parties in
affecting the outcomes. But this is the very specter that loomed
so large in the sights of Justice Powell when he decried the
results in Branti:
         Particularly in a time of growing reliance
         upon expensive television advertisements, a
         candidate who is neither independently
         wealthy nor capable of attracting substantial
         contributions must rely upon party workers to
         bring his message to the voters. In contests
         for less visible offices, a candidate may
         have no efficient method of appealing to the
         voters unless he enlists the efforts of per
         sons who seek reward through the patronage
         system. Insofar as the Court's decision
         today limits the ability of candidates to
         present their views to the electorate, our
         democratic process surely is weakened.
Branti, 

(Powell, J., dissenting). As the forego
ing comments suggest (and as I will elaborate), I see the trilogy
as extremely deleterious to the national polity. That is because
it has seriously undermined certain traditions that have helped
our democracy to flourish.
         I recognize that I am a judge of an inferior court, but
that does not preclude me from expressing an opinion where I feel
strongly that the Supreme Court has gone down a dangerous path it
ought to reconsider. U.S. v. Kennerley, 

, 120
(S.D.N.Y. 1913) (Hand, J.) ("While, therefore, the demurrer must
be overruled, I hope it is not improper for me to say that the
rule as laid down, however consonant it may be with mid-Victorian
morals, does not seem to me to answer to the understanding and
morality of the present time.").
         Thus, although I am constrained by the Supreme Court's
jurisprudence to concur in the present opinion and judgment, and
therefore do so, I write separately to express my dismay about
the way in which the First Amendment patronage jurisprudence has
evolved. This opinion is energized by the scenario of the case
at bar and the recent developments to which I have adverted.
                               II.
         I begin with a description of the problem clearly
identified by the Powell and Scalia dissents. In essence, the
patronage system historically has been critical to the survival
and strength of political parties by allowing party leaders to
reward their party faithful. Strong parties have, in turn,
played a crucial democratizing role: they have stimulated
political activity and encouraged meaningful political debate;
they have enabled local candidates for office to attract
attention to their candidacies and galvanize grass-roots
organizing; and they have facilitated the political participation
of historically excluded groups, see 

(Scalia, J., dissenting) ("By supporting and ultimately
dominating a particular party ‘machine,' racial and ethnic
minorities have -- on the basis of their politics rather than
their race or ethnicity -- acquired the patronage awards the
machine had to confer.").
     Moreover, as Justice Scalia noted in Rutan, the
"patronage system does not . . . merely foster political parties
in general; it fosters the two-party system in particular." Id.at 106.
If patronage jobs are available to workers who have
chosen a winning candidate, campaign workers are more likely to
choose a party with a chance of prevailing, rather than one with
non-mainstream views. This tends to foster the preservation of
the two-party system, as parties must ensure that their message
has wide appeal to attract rank-and-file members.
     As I see it, the Elrod trilogy has deprived parties of
one of the most effective tools for building party unity:
prospect of future political jobs for a job well done. The blow
that this has dealt patronage systems has contributed to the need
of political candidates to rely almost exclusively on media and
money-intensive campaigns to succeed. That politics has come to
be dominated by money, and hence large contributors and political
action committees (PACs) have achieved a significant sway, has
been true for a number of years now, but it surely cannot be
doubted in the wake of the 1996 election campaigns. This effect
has been felt most significantly at the local level, where
candidates, particularly challengers who have no PAC money to
draw on, can generate little support. Without personal wealth,
such candidates are doomed to failure. See 

(Powell, J., dissenting). I, of course, do not mean to
suggest that the trilogy is the only reason for the massive
influence of money in election campaigns, nor could I credibly do
so given the ascendency of the mass media over so many aspects of
national life, and the high cost of media advertising. But, it
is at least a significant contributing factor.
     Additionally, although the rise of modern, media-
intensive campaigns has surely benefitted the democratic process
by allowing some candidates to make broad-based appeals to the
entire public, access to the media is limited to those candidates
who can afford it, a terrible state of affairs. Moreover, the
nature of modern campaigns has not rendered obsolete the crucial
work done by individual party workers, particularly in local
races. "Certainly they have not made personal contacts
unnecessary in campaigns for the lower level offices that are the
foundations of party strength, nor have they replaced the myriad
functions performed by party regulars not directly related to
campaigning. And to the extent such techniques have replaced
older methods of campaigning (partly in response to the
limitations the Court has placed on patronage), the political
system is not clearly better off." 

(Scalia, J., dissenting).
     The decline of the patronage system has had other
significant consequences for the character of the electoral
process. The weakening of the party system affects the ability
of voters to make educated choices among candidates, as voters
with little information about candidates historically have looked
to their party for cues. "With the decline in party stability,
voters are less able to blame or credit a party for the
performance of its elected officials. Our national party system
is predicated upon the assumption that political parties sponsor,
and are responsible for, the performance of the persons they
nominate for office." 

(Powell, J.,
dissenting). Weaker parties also adversely affect citizen
participation in the democratic process. Contrast the appalling
national turnout of 48% in the 1996 presidential election,
notwithstanding the vaunted impact of motor-voter registration
laws, with the much higher turnout in years past when the
political parties were stronger. That in itself is an ominous
sign.
     The deleterious impact of special interest money does
not lessen after election day, as has often been noted.
According to Justice Scalia, "[t]he replacement of a system
firmly based in party discipline with one in which each
officeholder comes to his own accommodation with competing
interest groups produces 'a dispersion of political influence
that may inhibit a political party from enacting its programs
into law.'" 

(Scalia, J., dissenting)
(quoting 

(Powell, J., dissenting)).
Additionally, as the decline in party strength hastens the rise
of special interest groups, which are necessarily focused on
narrow issues, government suffers because "candidates and office-
holders are forced to be more responsive to the narrow concerns
of unrepresentative special interest groups than to overarching
issues of domestic and foreign policy." 

(Powell, J., dissenting). Such ills, fostered by the dominance
of money in elections, can only grow more significant, as each
election brings more expensive campaigns.
     In a similar vein, Justice Powell explained that
"[s]trong political parties aid effective governance after
election campaigns end. Elected officials depend upon appointees
who hold similar views to carry out their policies and administer
their programs. Patronage . . . serves the public interest by
facilitating the implementation of policies endorsed by the
electorate." 

     It is also clear to me that the premise of Branti --
that the accountability of elected officials to the voters is
satisfied by exempting policy making officials from Elrodscrutiny -- is
not sound. Anyone with experience in government
knows that officials of lower rank can undermine the policies of
an administration just as effectively as higher ranking persons.
Indeed, commentators have recognized that the Supreme Court has
drawn a distinction between "partisan" patronage employees and
"politically-neutral" civil servants.
     According to one article, "[t]here is no empirical
basis for this distinction. Highly protected career bureaucrats,
who have strong ideological attachments to political causes or
policies may also be motivated by partisan objectives, and these
objectives can be inconsistent with the goals of elected
officials. In reaching its conclusion, the Court ignores the
agency problems faced by politicians in securing the compliance
of government workers in molding and administering policy."
Ronald N. Johnson & Gary D. Libecap, Courts, a Protected
Bureaucracy, and Reinventing Government, 

. Rev. 791,
820-21 (1995) (footnotes omitted).
     At the same time, the regime of the trilogy has created
widespread uncertainty among government officials as to the
legality of hiring and firing certain government employees. The
line between who can be discharged for political affiliation and
who cannot under Branti is less than pellucid, to say the
least. This has required time-consuming and ongoing training
of management-level government employees lest they run afoul of
its precepts. In my view, Justice Powell was right when he said
that "[a] constitutional standard that is both uncertain in its
application and impervious to legislative change will now control
selection and removal of key government personnel. Federal
judges will now be the final arbiters as to who federal, state,
and local governments may employ. . . . [T]he Court is not
justified in removing decisions so essential to responsible and
efficient governance from the discretion of legislative and
executive officials." 

(Powell, J.,
dissenting).
         I acknowledge, of course, that I have not made an
empirical study of the impact of the Elrod trilogy, but a survey
of the literature reveals no satisfactory data. On a matter
such as this, I believe that seasoned judgment of those with
experience in the political process is the best guide. Moreover,
I share Justice Scalia's view that to "oppose our Elrod-
Brantijurisprudence, one need not believe that the patronage system is
necessarily desirable; nor even that it is always and everywhere
arguably desirable; but merely that it is a political arrangement
that may sometimes be a reasonable choice, and should therefore
be left to the judgment of the people's elected representatives."

(Scalia, J., dissenting).
                               III.
     I do not claim that the patronage system is without
flaw. The abuses of the system have been well documented over
the years. But while patronage systems have their faults, the
damage that the Elrod trilogy has done to the polity weighs, on
balance, in favor of permitting elected officials to hire and
fire based on political affiliation. Moreover, what is too often
forgotten is that most patronage appointees--whether maintenance
employees of municipalities, county clerks, or federal judges--
perform honorably and well. And when they do, they bring credit
upon the party that had them appointed and justify support
therefor. While a distinction is often made between patronage
and merit appointment, patronage employees are, far more often
than not, true merit employees. The problems of the patronage
system can be dealt with, and historically have been dealt with,
through civil service reform and other measures, rather than
through constitutional litigation.
     Turning to that aspect of the matter, as Justice Powell
noted in his Elrod dissent, the "judgment today unnecessarily
constitutionalizes another element of American life -- an element
certainly not without its faults but one which generations have
accepted on balance as having merit." 

(Powell, J., dissenting). I am also concerned by the
proliferation of Elrod-generated litigation (an on-line review
reflects that Elrod has now been cited 1249 times by federal
courts alone), which is now extending rapidly to procurement
decisions, such as the award of towing contracts, in addition to
personnel decisions. See O'Hare Truck Serv., Inc. v. City of
Northlake, 

(1996). The growing number of Elrod-based
cases has imposed a burden on federal trial and appellate
courts, embroiling them in the time-consuming and often quite
difficult exercise of divining where a duty is sufficiently
policy oriented to except an employee from Elrod scrutiny.
     In sum, given the sea change in politics, even since
Rutan, characterized primarily by the decline of political
parties and the dominance of elections by money, I submit that it
is time for the Supreme Court to revisit this area of the law.
     It seems that the import of the majority's discussion
on causation is that, if the fact-finder determines that the
Salary Board would have itself decided to eliminate plaintiffs'
positions, Foerster must be absolved. Perhaps I am incorrect.
At all events, the plaintiffs' claim should really be cut off at
the pass, i.e. now. I lament that it cannot be, but hope that
the Supreme Court will accept Justices Powell and Scalia's
wisdom. As Justice Frankfurter once stated, "Wisdom too often
never comes, and so one ought not to reject it merely because it
comes late." Henslee v. Union Planters Bank, 

, 600
(1949) (Frankfurter, J., dissenting).