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Ness v. Marshall

decided: September 28, 1981.

HARRY M. NESS, APPELLANT
v.
ELIZABETH N. MARSHALL, INDIVIDUALLY AND IN HER CAPACITY AS MAYOR OF THE CITY OF YORK, PENNSYLVANIA, AND JAMES S. A. BENTZEL; WILLIAM L. SMALLWOOD; ELIZABETH L. BROOKS; ROBERT G. LEICHLITER; JAMES R. VOGELSONG, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE CITY COUNCIL OF YORK, PENNSYLVANIA; EDWARD C. ROBERTS, APPELLANT V. ELIZABETH N. MARSHALL, INDIVIDUALLY AND IN HER CAPACITY AS MAYOR OF THE CITY OF YORK, PENNSYLVANIA, AND JAMES S. A BENTZEL, WILLIAM L. SMALLWOOD, ELIZABETH L. BROOKS, ROBERT G. LEICHLITER AND JAMES R. VOGELSONG, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE CITY COUNCIL OF YORK PENNSYLVANIA; JOHN W. THOMPSON, JR., APPELLANT V. ELIZABETH N. MARSHALL, INDIVIDUALLY AND IN HER CAPACITY AS MAYOR OF THE CITY OF YORK, PA. AND JAMES S. A. BENTZEL, WILLIAM L. SMALLWOOD, ELIZABETH L. BROOKS, ROBERT G. LEICHLITER, JAMES R. VOGELSONG, INDIVIDUALLY AND IN THEIR CAPACITY AS MEMBERS OF THE CITY COUNCIL OF YORK, PENNSYLVANIA



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Before Gibbons and Hunter, Circuit Judges, and Gerry,*fn* District Judge.

Author: Gibbons

Opinion OF THE COURT

Petitioners in these three consolidated appeals alleged that they were dismissed from their positions as solicitors for the City of York, Pennsylvania for reasons of their political affiliation and in violation of their First Amendment rights. The district court judge granted defendants summary judgment on two grounds: (1) that the evidence indicated no genuine issue of material fact concerning plaintiffs' claim that they were dismissed because of their political affiliation, and (2) that even if such issue of material fact could be shown, defendants were as a matter of law entitled to dismiss plaintiffs for those reasons. Because we affirm the district court on the latter ground, we need not definitively dispose of the former.

I. Facts and Proceedings Below

John W. Thompson, Jr., Edward C. Roberts, and Harry M. Ness served, respectively, as city solicitor for the City of York since January, 1974, as assistant city solicitor for the same period, and as a second assistant city solicitor since January, 1977, until dismissed in January of 1978. They were all appointed to their positions by the former mayor, John D. Kraut, a Republican, and were all dismissed by the newly elected mayor, Elizabeth Marshall, a Democrat. Thompson and Roberts were both members of the Republican Party and Ness, although a registered Democrat, had supported his brother, an unsuccessful Republican candidate for the city council, in the 1977 election.

In complaints filed March 9, 1978, plaintiffs alleged that Mayor Marshall dismissed them solely because of their political affiliations in violation of their rights under the First Amendment and the Civil Rights Act of 1871, 42 U.S.C. ยง 1983 and requested both compensatory damages and reinstatement to their former positions. Members of the city council were joined as defendants only for the purpose of receiving their necessary consent to the requested reappointment by the mayor.

Construing defendants' motion to dismiss as a motion for summary judgment, the district court granted the parties time to file documentation and affidavits in support of, and in opposition to, that motion. After reviewing the affidavits and depositions submitted by both sides as well as the relevant local and federal law, the court granted defendants' motion. The court decided both that there was no genuine issue of fact from which one might conclude that defendants had been dismissed solely due to their political affiliation, and that, in any event, recent constitutional law indicated that the mayor had the right to dismiss them for just this reason. This appeal followed.

II. The Reason for Dismissal

Although we affirm the district court's determination on grounds derived from the Elrod and Branti cases, see infra pp. 519-520, some discussion of the court's alternative ground for granting summary judgment is merited.

Reviewing the affidavits and depositions on file, the court found "that Mayor Marshall lacked confidence in the assistants she had inherited from the Kraut administration, that she had a firsthand opportunity to observe them during her tenure as President of the City Council, that she desired to reorganize the City Solicitor's Office to make it, in her mind, more effective and that these were the motivations behind her decision not to continue them in their respective positions." Memorandum, Nov. 14, 1980, Appellants' Appendix, p. 87a. These contentions of the mayor are indeed substantiated in the record. Appendix, pp. 54a-66a (Supplemental Affidavit of Elizabeth N. Marshall), pp. 518a-524a (Deposition of Marshall).

The court also made reference to an account offered by plaintiff Roberts of a phone conversation between Marshall and himself.

It is true that plaintiff Roberts recalls Mayor Marshall as noting in their telephone conversation that Mayor Kraut had fired the prior Solicitors "because they were Democrats" and couldn't understand why Roberts "was taking issue with her decision to do the same thing." The impact of her statement is not clear as she was ...


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