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WALTER v. BOTTI

August 30, 1983

BRUCE WALTER, Plaintiff,
v.
ROBERT BOTTI, in his capacity as Director of the Department of Public Works of the City of Union City, and CITY OF UNION CITY, Defendants



The opinion of the court was delivered by: SAROKIN

 This matter is before the court on motion of defendant for summary judgment or, in the alternative, for dismissal on grounds of abstention.

 Plaintiff, Bruce Walter, served as Deputy Director of the Department of Public Works of Union City, New Jersey, until, he alleges, he was wrongfully dismissed by defendant, Robert Botti, in March, 1982. Botti, until his recent appointment as mayor of Union City, served as the Director of the city's Department of Public Works. In 1976, Botti appointed Walter to serve as deputy director of the department for a two-year term. That appointment was subsequently renewed and Walter's employment continued until his termination on April 9, 1982.

 Plaintiff contends that he was terminated because he became a political adversary of Botti. In early 1982, plaintiff had become aligned with a political organization known as Alliance 1982, an adversary of Y.O.U., the organization supported by defendant. In March, 1982, plaintiff filed nominating petitions, signed by the requisite number of Union City voters, for his election to the Union City Board of Commissioners. This qualified plaintiff as a candidate for office in opposition to defendant and others in the then upcoming May, 1982 elections.

 Less than one week after having filed his petition, plaintiff was notified that his employment was being terminated. That termination, plaintiff alleges, was undertaken for political reasons only, and violated his right to free speech and association. In support of this claim, plaintiff has filed an uncontested affidavit of a reporter for The Dispatch, a Union City newspaper, in which the reporter states that he was told by defendant that the firing of plaintiff was strictly for political reasons. The reporter also notes that, after asking Botti whether plaintiff was fired because of the quality of his work, Botti replied, "absolutely not."

 In another uncontested affidavit, sworn to by plaintiff himself, plaintiff states that his decision-making authority was extremely limited and was confined to such mundane matters as switching men from regular street cleaning equipment to snow plows when it snowed. Plaintiff further states that he was responsible for supervising the work of street cleaners and garage employees, and performed physical labor. In addition, he notes that although he made recommendations on hiring and firing decisions, it was the director who was responsible for the ultimate decisions on these matters.

 Defendant has filed no affidavits with the court. His only response to plaintiff's allegations is found in his answer, which states that a deputy-director must have a relationship of loyalty, trust, and confidence with his director. Nothing has been placed on the record by defendant which describes the duties of a deputy director, nor the effect that plaintiff's candidacy has had on the efficiency of the office. The court must now consider whether abstention or summary judgment is appropriate under these circumstances.

 Union City, acting pursuant to state law, has chosen to adopt a commission form of government to conduct its affairs. N.J. Stat. Ann. 40:70-76 (Sup. 1982-83). Under state law, cities adopting a commission form of government may provide for the appointment of deputies by ordinance. Id. § 40:72-9. Union City, through various ordinances, has provided for the appointment of such deputies. Under the legislative scheme, the director prescribes the duties and powers of the deputy. The deputy is specifically precluded by ordinance, however, from acting for the director at meetings of the board of directors. Union City, N.J. Rev. Ordinances § 2:13.3 (1975). In addition, by statute and by ordinance, a deputy "may be removed by his principal at any time, and such removal shall not be reviewable." N.J. Stat. Ann. § 40:72-9; Union City, N.J. Rev. Ordinances § 2:13.1 (1975).

 Plaintiff claims that irrespective of the statute permitting removal of a deputy "at any time", such removal is prohibited where it is undertaken for constitutionally impermissible reasons. Here, plaintiff claims that the removal was for political reasons only, and therefore improperly penalized him for exercising his First Amendment rights of free speech and association. Defendant, on the other hand, contends that he had an absolute right under the statute to terminate plaintiff's employment, that plaintiff had no property right to his job, and that because no property right existed, there can be no constitutional violation if the job is taken away. Additionally, defendant contends that whether plaintiff has a property right under state law is an unsettled question, requiring this court to abstain until the issue is settled by the state court. Defendant is mistaken; abstention would be entirely inappropriate in these circumstances.

 In Railroad Commission of Texas v. Pullman Company, 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), the Supreme Court fashioned the abstention doctrine. That doctrine requires, in certain situations, that the federal courts refrain from adjudicating a federal constitutional question if a state court adjudication of related state law issues may obviate the need for a decision on the federal issue. The circumstances under which abstention is required were outlined by Judge Garth, writing for the Third Circuit, in D'Iorio v. County of Delaware, 592 F.2d 681 (3rd Cir. 1978):

 
First, there must be uncertain issues of state law underlying the federal constitutional claims brought in the federal court. Second, these state law issues must be amenable to an interpretation by the state courts that would obviate the need for or substantially narrow the scope of the adjudication of the constitutional claims. And third, it must appear that an erroneous decision of state law by the federal court would be disruptive of important state policies.

 This case falls far short of meeting these criteria.

 First, the state statute providing for removal of deputy directors is not vague; it states unequivocally that a deputy director may be removed "at any time" and that the decision "shall not be reviewable." Therefore, plaintiff could not obtain a hearing in state court to review the merits of the dismissal. Moreover, the statute makes clear that plaintiff has no property right in the position, notwithstanding defendant's contention that this is an unsettled question of state law. Second, the time for instituting an action in lieu of prerogative writs in the state is forty-five days, and plaintiff's action, even if commenced in the state would be untimely. Finally, this court's decision on whether a constitutional violation has occurred through dismissal of plaintiff, would not be disruptive of important state policies because, as will be discussed later in this opinion, the ...


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