LAWRENCE J. O'NEILL, Chief District Judge.
Plaintiff Afreen Kaelble, a former Supervising Deputy District Attorney ("SDDA") for the Tulare County's District Attorney's Office, brings this civil rights case against Tulare County ("the County") and Tulare County District Attorney Tim Ward under 42 U.S.C. § 1983 ("§ 1983").
Defendants move for summary judgment on the claim. Doc. 13 at 21. The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 35. For the following reasons, the Court GRANTS the motion in Defendants' favor and against Plaintiff.
The Court notes at the outset that the parties have lodged approximately 100 objections to the opposing party's evidence. See generally Docs. 29-3, 32. Aside from Defendants' three objections to Plaintiff's deposition testimony, the parties object only to declaration testimony. The problem with all but one of Plaintiff's 46 objections is Plaintiff block quotes entire paragraphs from Defendants' proffered declarations and states three to four objections without any explanation of which objection pertains to which statement. Defendants do the same at times. As to these objections, the Court is left to guess which objection applies to which statement.
Nonetheless, the Court has carefully reviewed the objections it could discern and need only consider them to the extent the objected-to evidence is material to the Court's ruling. See Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (en banc) (holding district court "must also rule on evidentiary objections that are material to its ruling"). The parties' objections are OVERRULED unless otherwise indicated, either explicitly or by the Court's not addressing objected-to evidence below.
The following facts are undisputed. Plaintiff and her husband, Ralph Kaelble, are former employees of the Tulare County District Attorney's Office ("the Office"). Doc. 31, Defendants' Reply to Plaintiff's Response to Defendants' Separate Statement of Undisputed Material Facts ("UMF"), No. 1. Ward became their supervisor when he was appointed DA in December 2012 after his predecessor retired. UMF 4. In January 2013, he terminated Mr. Kaelble. UMF 4, 20; Doc. 15-2, Ex. H, Declaration of Hon. Robert Anthony Fultz ("Fultz Decl."), at ¶ 4.
Shortly after his termination, Mr. Kaelble decided to run against Ward for County DA, which held an election for the position in June 2014. UMF 5; see also Doc. 15-1, Ex. R at 1. Members of the Office learned about Mr. Kaelble's candidacy between April and June 2013. UMF 24. He officially announced his candidacy in June of 2013. See Doc. 15-2, Ex. G, Declaration of Tim Ward ("Ward Decl.") at ¶ 8. Plaintiff never discussed the election at work and did not openly and publicly support Mr. Kaelble's campaign until November 2013, when she marched in three parades holding a banner that said something to the effect of: "Ralph F. Kaelble for Tulare County District Attorney." Ward Decl. at ¶ 9; Doc. 29-1, Ex. B, Declaration of Michelle Wallis ("Wallis Decl.") at 2:17-20; Kaelble Decl. at ¶ 42. Office personnel, however, assumed she had always supported his campaign. Mr. Kaelble ultimately lost the election to Ward. UMF 5.
Plaintiff joined the Office in 1999 and became an SDDA in December 2006. Kaelble Decl. at ¶ 3. At all relevant times, Plaintiff was a SDDA responsible for supervising six Deputy District Attorneys ("DDA") and made over $100,000 per year. Kaelble Decl. at ¶ 6; UMF 15. At various times, Plaintiff supervised the General Felony Team, the Community Protection Team, and the Financial Crimes Division. Doc. 15-1, Ex. S, at 2. Plaintiff became the SDDA in charge of the Juvenile Division at some point between August and September 2013.
The County's job description for SDDAs defines the position as follows: "To plan, assign and supervise the work of subordinate attorneys in the District Attorney's . . . Office and personally prosecute . . . felony and criminal cases. Doc. 29-1, Ex. I ("SDDA Job Description") at 1. The SDDA Job Description defines an SDDA's duties as follows:
Id. In addition, SDDAs "may act as chief trial attorney in the most difficult cases." Id. SDDAs must have the ability to "develop, implement, and interpret policies and procedures," id. at 1-2, and must have at least five years of experience as an attorney, at least four years practicing criminal law, and at least one year performing supervisory responsibilities. Id. at 2.
SDDAs manage their separate divisions and supervise the attorneys in those divisions. Greaver Decl. at ¶ 3; Lopez Decl. at ¶ 3; Alavezos Decl. at ¶ 4; Kaelbe Depo. at 56:3-5; Kaelble Decl. at ¶ 6. Although SDDAs can implement policies with respect to their division, they cannot unilaterally create or implement Office-wide policies. Fultz Depo. at 7:16-22; Ward Depo. at 9:13-17; Kaelble Decl. at ¶ 6. Nor can they hire, fire, promote, or demote any Office employee, though they evaluated personnel in their divisions. UMF 16. SDDAs also are not permitted to speak to the media on behalf of the Office without approval from either the DA, an ADA, or the Chief Investigator. See Ward Depo. 65:21-67:8; Kaelble Decl. at ¶ 13.
Nonetheless, SDDAs have "a broad range of responsibility and must exercise discretion and implement policy in order to successfully perform the essential functions of their job." Kaelble Decl. at ¶ 12; UMF 16. For instance, SDDA David Alavezos "could decide whether to pay for a witness to come to trial and whether a suspect should be extradited from another state for prosecution." Alavezos Decl. at ¶ 4. SDDAs also may decide to dismiss a case unilaterally, though they usually must receive approval before dismissing a case. See Kaelble Depo. at 45:25-46:3; Doc. 15-1, Ex. KK at 2 (Plaintiff stating in her journal on October 4, 2013: "I also made a dismissal decision w/o them since they won't talk to me"). Similarly, SDDAs have discretion as to how and when to bring a case, how to charge a case, when and how to plea bargain, and who is assigned to a case. Lopez Decl. at ¶ 1; Kaelble Depo. at 125:20-21; Ward Decl. at ¶ 16; Greaver Decl. at ¶ 3; Fultz Decl. at ¶ 3. One example of Plaintiff's case oversight responsibilities was her role as Office coordinator for case conflicts. Kaelble Decl. at ¶ 27. The County and "three or four" other counties' DA offices have an agreement to handle one another's cases when conflicted, if possible. Id. Plaintiff would coordinate and communicate information concerning the cases between the offices, including deciding who was assigned to the case. Id.
As an SDDA, Plaintiff was part of the DA's management team, which included, among others, the DA, two Assistant District Attorneys ("ADA"), nine SDDAs, the Chief Investigator, two Assistant Chief Investigators, and a representative from Victims Services. UMF 9; Kaelble Decl. at ¶ 10; Ward Decl. at ¶ 6. The management team held regularly
Ward depended on the input of the management team, including all SDDAs, in managing the Office. Ward Decl. at ¶ 16; see also Doc. 15-1, Ex. W at 2 (Plaintiff's May 2013 performance review stating Plaintiff "is trusted with important information relating to the management of the office"). However, all Office-wide decisions, policies, and protocols affecting the direction of the Office ultimately were formulated and approved by the DA's executive management team, which at all relevant times consisted of Ward, ADAs Hon. Robert Fultz and Daniel Underwood, and Chief Investigator Robert French. See UMF 10, 11; Ward Depo. at 32:19-33:4. Although the executive management team ultimately made the final decision on Office-wide policies and procedures, SDDAs provided their input on those decisions and also developed Office-wide policy proposals for the executive management team's approval. Greaver Decl. at ¶ 3; Ward Decl. at ¶ 6; Fultz Decl. at ¶ 7; Kaelble Depo. at 65:15-25, 71:20-24; Doc. 15-1, Ex. W at 2.
Plaintiff did so for a number of Office policies. In 2008, Plaintiff helped create the Office's "Sensitive Information/Brady Database," was "in charge" of it since it was established in 2010, and was "in charge of committee that was tasked with developing procedures for" it. Doc. 15-1, Ex. V at 2; Doc. 15-1, Ex. S at 1.
Although Plaintiff always performed her job satisfactorily, Mr. Kaelble's candidacy affected the ability of Office personnel—in particular, members of the management team—to speak with Plaintiff candidly and in confidence. See, e.g., Ward Decl. at ¶ 13. After Mr. Kaelble's election campaign became known, Plaintiff "felt that [she] was being isolated and that [she] was not receiving information the same way that [she] used to." Kaelble Depo. at 119:13-14. Plaintiff believed some Office personnel began to not trust her around January or February 2013, shortly after Mr. Kaelble was terminated. See Kaelble Depo. at 145:21-25.
Members of the management team did, in fact, grow to distrust Plaintiff. See, e.g., Fultz Decl. at ¶ 9; Ward Decl. at ¶ 13; French Decl. at ¶ 3. At least eight other members of the management team testified that, because of Plaintiff's relationship to Mr. Kaelble, they could no longer trust Plaintiff with confidential information concerning the Office due to their concern that she would share the information with Mr. Kaelble.
Members of the management team felt that the nature and atmosphere of management team meetings changed when Plaintiff was present.
Ward, however, could not recall any specific information that could not be shared or any assignment that could not be accomplished because of Plaintiff's presence. See Ward Depo. at 40:8-25, 41:1-120. The Honorable Robert Fultz, who was an ADA at all relevant times, also could not recall any particular policy the Office could not create due to Plaintiff's presence, but had a "general concern" about sharing information with her concerning the Marsy's Law policy with which she was involved. Doc. 29-1, Ex. F, Deposition of Hon. Robert Fultz ("Fultz Depo."), at 11:10-12:19.
Management team members' trust and communication issues with Plaintiff persisted throughout the summer and fall of 2013. Both ADA Fultz and ADA Daniel Underwood relayed their concerns with Plaintiff to Ward. See Fultz Decl. at ¶¶ 10, 12; Underwood Decl. at ¶¶ 12-13. They reported that they had become concerned with the effect of Plaintiff's presence at the management team meetings on themselves and others. See Ward Decl. at ¶¶ 10-12; Fultz Decl. at ¶ 10; Underwood Decl. at ¶ 12. They discussed with Ward that they and other SDDAs had concerns about being unable to speak candidly at management team meetings in Plaintiff's presence. See Ward Decl. at ¶¶ 10, 12; Fultz Decl. at ¶ 10; Underwood Decl. at ¶ 10
In July 2013, Ward considered whether he should terminate Plaintiff. See Ward Decl. at ¶ 11. He had discussions with his executive team about her perceived negative effect on the management team. Ward Decl. at ¶ 14; Fultz Decl. at ¶ 12. He decided to research whether he could terminate Plaintiff lawfully. Ward Decl. at ¶ 15. In November 2013, Underwood researched the matter and prepared a memorandum, which concluded that Plaintiff was a "policymaker," who could be lawfully terminated for her support of her husband's campaign. UMF 32; Doc. 15-1, Ex. II. Fultz and Ward reviewed the memorandum and concurred with its conclusion. Ward Decl. at ¶ 15; Fultz Decl. at ¶ 12. The executive management team members conferred and agreed that Plaintiff should be terminated because, in their view, her presence negatively affected the management team in general and the team's meetings in particular. Ward Decl. at ¶ 17; Fultz Decl. at ¶ 12; French Decl. at ¶¶ 4-5; Underwood Decl. at ¶ 13.
At Ward's direction, Plaintiff was terminated on December 3, 2013. Ward Decl. at ¶ 18. Underwood personally presented the "Notice of Termination" to Plaintiff on that day. Underwood Decl. at ¶ 14. Plaintiff asked if she could resign instead of being terminated, which was acceptable to Underwood. Underwood Decl. at ¶ 14. Plaintiff submitted her letter of resignation shortly afterward, which Underwood accepted on December 4, 2013. Doc. 15-1, Ex. AA at 1.
After Plaintiff left the Office, management team meetings changed. According to Ward, "candid and open discussions . . . were restored," and "SDDAs no longer sought separate meetings with the ADAs and [him] to discuss confidential matters." Ward Decl. at ¶ 19. Other management team members thought the meetings became more productive and efficient and that the discussions became more open and candid. See, e.g., French Decl. at ¶ 5; Alavezos Decl. at ¶ 8; Cardenas Decl. at ¶ 4; Lopez Decl. at ¶ 5; Lightfoot Decl. at ¶ 6; Underwood Decl. at ¶ 15; Greaver Decl. at ¶ 8.
Plaintiff brought this case against Ward and the County under § 1983, alleging that they terminated her for her support of Mr. Kaelble's campaign in violation of her First Amendment rights. See Doc. 1 at 14; Doc. 29 at 5 (Plaintiff arguing Ward terminated her "because she publicly supported Ward's opponent in the 2014 election").
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. See id. at 255; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50. A fact is "material" if its proof or disproof is essential to an element of a plaintiff's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is "genuine" "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted).
The moving party bears the initial burden of informing the Court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact for trial. Celotex, 477 U.S. at 323. If the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P. 56(c); Liberty Lobby, 477 U.S. at 250.
To establish a prima facie case of First Amendment retaliation, a government employee must show that "(1) she engaged in protected speech; (2) the defendants took an `adverse employment action' against her; and (3) her speech was a `substantial or motivating' factor for the adverse employment action." Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir.2004) (quoting Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)).
To the extent Defendants suggest Plaintiff's support of Mr. Kaelble's candidacy for DA concerned an entirely personal matter because he is her husband, the Court disagrees. It is beyond dispute that Plaintiff's First Amendment rights were implicated when she was terminated, in part, for her supporting her husband's candidacy for the DA position. See Bardzik v. Cty. of Orange, 635 F.3d 1138, 1144 (9th Cir. 2011) ("The First Amendment protects the rights of citizens . . . to support a candidate opposing an elected official." (citation and footnote omitted)); Rutan v. Republican Party of Ill., 497 U.S. 62, 69 (1990) (holding that the First Amendment protects "joining, working for or contributing to . . . candidates of their own choice"). In fact, First Amendment protections have their "fullest and most urgent application" to speech connected to "campaigns for political office." Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). That Mr. Kaelble is Plaintiff's husband is beside the point—her support for his campaign is entitled to First Amendment protection.
There is no dispute that Plaintiff suffered an adverse employment action, but the County does argue that Plaintiff's support for Mr. Kaelble's campaign was not the motivating factor in Ward's decision to terminate Plaintiff. Motive, however, "is purely a question of fact." Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009). For that reason, "very little evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive may suffice to raise a question that can only be resolved by a fact-finder." Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 (9th Cir. 2009) (citation and quotation marks omitted).
Viewing the evidence in the light most favorable to Plaintiff, the Court finds there is a genuine issue of material fact as to why Ward terminated Plaintiff. Ward candidly testified that Plaintiff's support for Mr. Kaelble's campaign was "a key factor" in his decision to terminate her. Ward Depo. at 23:5-10. Whether it was a key factor because of the perceived effect her support had on the Office, as the County argues, or whether Ward terminated Plaintiff simply because he disapproved of her support for Mr. Kaelble, as Plaintiff argues, is a question of fact that cannot be resolved on summary judgment. See Eng, 552 F.3d at 1071.
Nonetheless, as the Supreme Court observed days ago, there are narrow exceptions to the Constitution's prohibition on "discharging or demoting an employee because the employee supports a particular candidate." Heffernan v. City of Paterson, 578 U.S. __, slip op. at 3 (2016) (citations omitted). One of these exceptions is under Elrod v. Burns, 427 U.S. 347 (1976), which provides that "a public official who is a `policymaker' may be fired for political reasons without offending the United States Constitution." Fazio v. City & Cty. of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997). The exception applies not only to political party affiliation, but also permits terminations premised on "political affiliation, which includes commonality of political purpose and support." Walker v. City of Lakewood, 272 F.3d 1114, 1132 (9th Cir. 2001). This exception recognizes "that an elected official must be able to appoint some high-level, personally and politically loyal officials who will help him implement the policies that the public voted for." Bardzik, 635 F.3d at 1144 (citations omitted). Accordingly, "[a]n elected official may dismiss . . . policymaking employees if they are no longer loyal, if they oppose his re-election, or simply if the official would prefer to work with someone else." Id.
Another related exception is for government employees who are "confidential employees," and whose positions require confidentiality and loyalty to the elected official. See Branti v. Finkel, 445 U.S. 507 (1980); Hobler v. Brueher, 325 F.3d 1145, 1152 (9th Cir. 2003). The "confidential employee" exception recognizes that "[a] public agency would be unmanageable if its head had to . . . retain his political enemies . . . in positions of confidence or positions in which they would be . . . exercising discretion in the implementation of policy." Hobler, 325 F.3d at 1152 (quoting Fazio, 125 F.3d at 1333).
Both the policymaker and confidential employee exceptions "take account of `practical realities' such as the need for `efficiency' and `effective[ness]' in government service," Heffernan, 578 U.S. __, slip op. at 3, and allow a government employer to "fire a public employee for purely political reasons if the employer can demonstrate that political considerations are `appropriate requirement[s] for the effective performance' of the job." Fazio, 125 F.3d at 1332 (quoting Branti, 445 U.S. at 518); Hobler, 325 F.3d at 1149. These exceptions to the First Amendment for so-called "patronage dismissals" recognize that
Fazio, 125 F.3d at 1332 (quoting Wilbur v. Mahan, 3 F.3d 214, 218 (7th Cir. 1993) (footnote omitted)). This is so because forcing "a public official to work towards his or her goals with the assistance of employees who may be working against those goals has the potential to frustrate the will of the electorate." Nichols v. Dancer, 567 F.3d 423, 428 (9th Cir. 2009). Accordingly, "an employee's status as a policymaking or confidential employee [is] dispositive of any First Amendment retaliation claim." Biggs v. Best, Best & Krieger, 189 F.3d 989, 994-95 (9th Cir. 1999). "If [an official] is a policymaker [or confidential employee], then . . . his government employment could be terminated for purely political reasons without offending the First Amendment." Fazio, 125 F.3d at 1332; Hobler, 325 F.3d at 1154-55.
The County bears the burden of establishing that Plaintiff is a policymaker. Elrod, 427 U.S. at 368. "[T]he `policymaker' inquiry is highly fact-specific." Hunt v. Cty. of Orange, 672 F.3d 606, 614 (9th Cir. 2012). "Determining the particular duties of a position is a factual question, while determining whether those duties ultimately make that position a policymaking . . . . question is a question of law." Walker, 272 F.3d at 1132. For that reason, summary judgment may be appropriate "where the duties of the position, insofar as they are material, are not genuinely at issue," and the Court can find as a matter of law that the plaintiff is a policymaker. Hobler, 325 F.3d at 1148 (finding genuine issue of material fact as to why plaintiffs were fired but holding their status as policymakers meant their § 1983 claim failed).
"[A] public employee need not literally make policy in order to fit within the Elrod policymaker exception." Fazio, 125 F.3d at 1332 (emphasis in original). The Ninth Circuit has developed nine non-exhaustive factors to identify a policymaking position: "vague or broad responsibilities, relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders." Fazio, 125 F.3d at 1334 n.5; Bardzik, 635 F.3d at 148 ("[T]he Fazio factors are not exclusive"). These "factors are intended to guide the `policymaker' analysis, but not supplant . . . `the essential inquiry'—whether `party affiliation is an appropriate requirement for the effective performance of the public office involved.'" Hunt, 672 F.3d at 613 (quoting Fazio, 125 F.3d at 1331).
According to Plaintiff, "SDDAs have a broad range of responsibility and must exercise discretion and implement policy in the prosecution of their cases." Kaelble Decl. at ¶ 12. This statement is in line with the SDDA Job Description, which Plaintiff emphasizes as critical, if not dispositive, evidence of an SDDA's responsibilities. Contrary to Plaintiff's assertion, the SDDA Job Description does not outline an SDDA's duties "with precision." Doc. 29 at 17. An SDDA's duties "are not necessarily limited to" the paragraph-long list of duties contained in the SDDA Job Description. By its own terms, that list is non-exhaustive; the SDDA Job Description explicitly states that the "[e]ssential duties may vary from position to position," and SDDAs must "[p]erform duties as assigned." In any event, even assuming the SDDA Job Description provided an exhaustive list of an SDDA's duties, its list of numerous broadly worded responsibilities essentially says SDDAs are responsible for supervising, training, and overseeing subordinate attorneys and doing whatever is needed to prosecute cases. In addition, Plaintiff was responsible for the general oversight and management of an entire division of the Office. Kaelble Depo. at 56:3-5. The Court therefore finds that the first Fazio factor weighs in favor of finding Plaintiff is a policymaker.
The parties provide limited evidence and argument regarding Plaintiff's relative pay. There is not dispute that Plaintiff's salary was "over $100,000 per year" or that an SDDA's salary could be up to $116,000. SDDA Job Description at 1. Plaintiff's salary appears to suggest that Plaintiff is a policymaker. See Fazio, 125 F.3d at 1334 (noting plaintiff made over $100,000 per year in finding that he was a policymaker). Fazio, however, was decided almost 20 years ago, when $100,000 had the same buying power as approximately $150,000 today. See Bureau of Labor Statistics, Consumer Price Index Inflation Calculator, http://www.bls.gov/data/inflation_ calculator.htm. And in Bardzik, the Ninth Circuit concluded that a lieutenant in a sheriff's department being paid "only . . . $116,100 a year, whereas an assistant sheriff could earn as much as $260,000" weighed against finding the lieutenant was a policymaker. 635 F.3d at 1146.
There is limited evidence concerning Plaintiff's pay relative to Office personnel. ADAs make approximately $100,000 to $150,000 per year, see Doc. 29-1, Ex. J at 1, and the DA makes approximately $128,000 to $192,000 per year. See Doc. 29-1, Ex. K at 1. An "Attorney IV," who is inferior to SDDAs and has little to no managerial duties, could make up to $104,000. Doc. 29-1, Ex. H at 1. Given the lack of argument and evidence concerning this factor, it is somewhat inconclusive. Viewing the evidence in the light most favorable to Plaintiff, the Court finds that Plaintiff's pay, which is only slightly above that of an inferior "Attorney IV," weighs against finding Plaintiff is a policymaker.
The Ninth Circuit has not provided much guidance as to what constitutes "technical competence" in the policymaker analysis. But it appears to be simply whether the government employee has skills and expertise specific to the at-issue position.
Although Plaintiff supervised at least six attorneys, she had no authority to hire, fire, promote, or demote anyone at the Office, and there is no evidence that Plaintiff had the authority to discipline her subordinates. Her authority over subordinates was "both limited and largely operational." Hunt, 672 F.3d at 614. "[M]erely being a supervisor/administrator . . . is not sufficient to show that political affiliation is an appropriate requirement for the job in question." Id. (citation and quotation marks omitted). This factor weighs against finding Plaintiff was a policymaker. See id. (finding fourth Fazio factor was not satisfied when plaintiff could not hire or promote subordinates but could manage and discipline them).
Plaintiff did not have the authority to speak to the media in the name of the DA without approval from a member of the executive management team, which weighs against finding Plaintiff was a policymaker. See Hunt, 672 F.3d at 613. But this is outweighed by the fact that Plaintiff routinely and publicly represented the DA by virtue of her position as an SDDA. See Walker, 272 F.3d at 1133. Plaintiff had wide latitude in the prosecution of her cases. According to Plaintiff, she had to "exercise discretion and implement policy in the prosecution of [her] cases." Kaelble Decl. at ¶ 12. Plaintiff had discretion to, among other things, determine which cases to file, which charges to bring, and how and when to negotiate plea deals. Kaelble Depo. at 125:20-25. Plaintiff could unilaterally dismiss cases, though generally she would seek approval to do so. Id. at 45:21-9.
In addition, one of an SDDA's many duties is to "advise the general public and law enforcement officers on criminal proceedings." SDDA Job Description at 1. As such, she "interact[ed] and liaise[d] with representatives of law enforcement agencies on a continual basis." Kaelble Decl. at ¶ 17. For instance, when developing the Office's Prop 36 policies, Plaintiff spoke to the Superior Court, the public defender, and probation on behalf of the Office. Doc. 15-1, Ex. W at 8. And as the coordinator for the Office's conflicts cases, Plaintiff would speak to the DA offices of three or four counties on behalf of the Office to assist the Office and the other counties in resolving their conflicts cases. Kaelble Decl. at ¶ 27.
Given this, the Court concludes that "the public would have viewed [Plaintiff] as having some official authority to speak" on behalf of the DA. Walker, 272 F.3d at 113. The Court therefore finds that the fifth and sixth Fazio factors weigh in favor of finding Plaintiff was a policymaker. See id.; see also Opp v. Office of State's Attorney of Cook Cty., 630 F.3d 616, 621 (7th Cir. 2010) ("[A]n Assistant State's Attorney's decisions and actions in the courtroom are binding on the government. The State's Attorney grants an Assistant State's Attorney the authority to conduct a case in court, and, from that point, the Assistant State's Attorney acts as the State's Attorney in all respects. The Assistant State's Attorney may choose to prosecute or dismiss a case, with or without the State's Attorney's input and guidance. This alone raises Assistant State's Attorneys to the level of policymakers.").
Whether Plaintiff had an influence on Office programs is the "most critical factor" in the policymaker analysis. See Bardzik, 635 F.3d at 1146. And there is no dispute that Plaintiff influenced Office-wide programs through her formulating, recommending, and implementing Office policies and procedures. That the executive management team ultimately had the final say in deciding which Office policies to employ does not preclude a finding that Plaintiff is a policymaker. See Elrod, 427 U.S. at 367 ("In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals."); Bardzik, 635 F.3d at 1147 (holding "the ability to `unilaterally' create and implement programs without any input from the Sheriff is not required by our case law or by logic").
SDDAs must have the ability to "develop, implement, and interpret policies." SDDA Job Description at 1. According to Ward, the management team's "most important" task was "suggesting how [the Office] could do things better." Ward Decl. at ¶ 6. Management team members therefore participate in Office policy discussions and make recommendations to the executive management team members. See Greaver Decl. at ¶ 3; Kaelble Depo. at 65:21-66:3. For instance, while an SDDA, Plaintiff was tasked with developing Office-wide policies for Prop 36, Marsy's Law, U Visas, and the Brady Database. See UMF 17. Plaintiff also was tasked to ensure the Office's eavesdropping protocol was up to date and in accordance with the law. Kaelble Decl. at ¶ 24. Because of her involvement with developing the Office's Prop 36 policies, Plaintiff handled all of the Prop 36 petitions in the County for almost a year. The Court finds that this "most critical" Fazio factor weighs heavily in favor of finding that Plaintiff was a policymaker. See Blanck v. Hager, 360 F.Supp.2d 1137, 1150 (D. Nev. 2005) ("Plaintiff's responsibilities of rendering legal opinions, advising Washoe, and representing Washoe in litigation matters is sufficient to establish him as a policymaking or confidential employee."), aff'd, 220 Fed. App'x 697 (9th Cir. 2007); Livas v. Petka, 771 F.2d 798, 801 (7th Cir. 1983) (noting that subordinate prosecutor is relied on by superiors to make decisions that could create policy), cited with approval in Fazio, 125 F.3d at 1333, and Biggs, 189 F.3d at 997.
There is no dispute that, as an SDDA and member of the management team, Plaintiff was required to and in fact did have consistent communication and contact with the DA, an elected official. The Court finds this Fazio factor weighs in favor of finding Plaintiff was a policymaker. See Bardzik, 635 F.3d at 1147 ("Third, Bardzik had frequent and meaningful contact with the elected official, the [defendant] Sheriff.").
The Ninth Circuit has not provided much meaningful guidance on this factor. But the factor appears to require an assessment of the extent to which a government employee accounts and reports to elected officials. See Hunt, 672 F.3d at 619 (Leavy, J., concurring in part and dissenting in part) ("Hunt's position required him to be responsive to City Council members and other political leaders in Orange County.").
Here, Plaintiff served at the pleasure of the DA. As an SDDA, the DA was Plaintiff's direct supervisor and was expected to follow his directives and implement his policies. As Plaintiff emphasizes, she required Ward's input or approval on numerous decisions. The Court therefore finds this Fazio factor weighs in favor of finding Plaintiff was a policymaker.
The Court finds that all but two of the Fazio factors (relative pay and power over others) support a finding that Plaintiff was a policymaker at the Office. The Court is mindful, however, that the Fazio factors should not be applied mechanically or in a vacuum. Hunt, 672 F.3d at 612. As the Ninth Circuit has emphasized repeatedly, the "essential inquiry" is "whether `party affiliation is an appropriate requirement for the effective performance of the public office involved.'" Id. at 613 (quoting Fazio, 125 F.3d at 1331). Further, the court has stressed that the policymaker exception includes terminations premised on "`political affiliation,' which `includes commonality of political purpose and support.'" Biggs, 189 F.3d at 996. The ultimate question, then, is whether effective performance as an SDDA required a commonality of political purpose and support with the DA.
Just as "[t]here can be no doubt that loyalty and confidentiality are essential to the effective performance of the City Attorneys' office," Rendish v. City of Tacoma, 123 F.3d 1216, 1225 (9th Cir. 1997), there is no doubt that loyalty and confidentiality among the management team was essential to the effective performance of the Office. Ward, his two ADAs, the Chief Investigator, the Assistant Chief Investigator, three SDDAs, and the director of Victims Services, all of whom are part of the management team, testified that trust and confidence in one another is necessary for the management team to do their jobs collectively and individually. Critically, Plaintiff does not dispute that: (1) confidential matters were discussed at management team meetings; (2) the management team needed to be able to trust and be candid with one another to run the Office efficiently; (3) the DA and members of the management team grew to distrust Plaintiff; (4) she grew to distrust them; and (5) management team members stopped confiding in Plaintiff. See generally Kaelble Depo. at 121:15-122:1; Ward Decl. at ¶¶ 13-14. This mutual lack of trust and confidence between Plaintiff and management team members caused management team meetings to be less productive, forced management team members to make different meeting arrangements, and sometimes led Plaintiff to be ill-informed (or not informed at all) about Office matters. See Ward Decl. at ¶ 14; Fultz Decl. at ¶ 12.
The Court notes that the overwhelming majority of the numerous courts to consider the issue have found that government attorneys are policymakers.
Ultimately, whether Plaintiff's support for her husband's election had any actual effect on the Office, the management team, or Plaintiff's ability to do her job is beside the point. See Bardzik, 635 F.3d at 1144 ("An elected official may dismiss . . . policymaking employees . . . simply if the official would prefer to work with someone else." (citations omitted)). Ward was entitled to work with "high-level, personally and politically loyal officials who will help him implement the policies that the public voted for." Bardzik, 635 F.3d at 1144. "Fewer acts convey greater opposition to an elected supervisor's policies than actively campaigning for a rival candidate." DiRuzza, 206 F.3d at 1317 (9th Cir. 2000) (O'Scannlain, J., dissenting) (footnote omitted). "`It would strain credulity to read the First Amendment or Elrod to require an elected official to work in constant direct contact with a person viewed as a political enemy.'" Hobler, 325 F.3d at 1153 (quoting Vasquez Rios v. Hernandez Colon, 819 F.2d 319, 323 (1st Cir. 1987)).
Accordingly, because Plaintiff was a policymaker, Ward's terminating Plaintiff did not violate the First Amendment. The Court therefore GRANTS the County's motion for summary judgment on Plaintiff's § 1983 claim in its favor and against Plaintiff.
"[A]n employee's status as a policymaking or confidential employee would be dispositive of any First Amendment retaliation claim." Biggs, 189 F.3d at 994-95 (emphasis added). Although the County emphasized its position that Plaintiff was a policymaker, it also argued that she was a confidential employee. See Doc. 14 at 9, 11, 25, 26; Doc. 30 at 2. Plaintiff, however, does not address this argument in her opposition; she only addresses the County's argument that she was a policymaker. For that reason alone, the County arguably is entitled to summary judgment on Plaintiff's claim.
"The test for whether someone is a `confidential employee' in the Branti sense is simply whether political loyalty, or the absence of political adverseness, is `an appropriate requirement for the effective performance of the public office involved.'" Hobler, 325 F.3d at 1154. To make that assessment, the court must ask:
Id. at 1154-55. Like the Fazio factors employed in the policymaker analysis, these questions only guide the Court's analysis. See id. at 1154 ("[N]either a multifactor `test' nor an exhaustive and exclusive list of factors is appropriate."). The Court, however, is unaware of any subsequent decision that has employed these questions to determine whether a position is that of a confidential employee.
As discussed in more detail above, the answer to all the Hobler questions except (6) is "yes."
Simply put, the undisputed evidence in this case shows that Ward and members of the management team, including Plaintiff, needed to maintain mutual trust and confidence to run the Office. But because of Plaintiff's support for Mr. Kaelble's campaign, Ward and members of the management team did not confide in nor trust Plaintiff, and she did not trust them. This lack of trust and confidence hindered the management team's ability to perform their jobs collectively and individually.
The Court therefore finds Plaintiff was a confidential employee, who could be terminated for political reasons without violating the First Amendment. See Hobler, 325 F.3d at 1155; Livas, 711 F.2d 798 (prosecutor's lack of confidence in subordinate "for whatever reason" is sufficient reason to terminate subordinate). Accordingly, the Court GRANTS the County's motion for summary judgment on Plaintiff's § 1983 claim in its favor and against Plaintiff.
Because Plaintiff's position as an SDDA in the Office was that of a confidential, policymaking employee, Ward's terminating her for supporting her husband's campaign to replace Ward as DA did not violate the First Amendment. Accordingly, the Court GRANTS the County's motion for summary judgment on Plaintiff's § 1983 claim—the only claim remaining in this case. The Clerk of Court is therefore directed to CLOSE this case.
