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Media Alerts - Borzilleri v. Mosby -- Fourth Circuit
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November 21, 2017
  Borzilleri v. Mosby -- Fourth Circuit
Assistant State's Attorneys are Policymakers for First Amendment Purposes

Areas of Law: Constitutional

Issue Presented: Whether firing an assistant state's attorney for political disloyalty violated the assistant state's attorney's First Amendment rights to free association and speech.

Brief Summary: Four days after taking office as Baltimore City's State's Attorney, Marilyn Mosby fired Assistant State's Attorney Keri L. Borzilleri because Borzilleri had supported Mosby's opponent during the primary election. The Fourth Circuit held that an assistant state's attorney is a policymaking position, so firing Borzilleri for political disloyalty did not violate her First Amendment right to association. Also, given the government's interest in implementing its policies through its employees, firing Borzilleri for politically disloyal speech did not violate her First Amendment right to free speech. In conclusion, the Fourth Circuit affirmed the United States District Court for the District of Maryland's ruling to dismiss Borzilleri's claims.

Extended Summary: In January 2015, Marilyn Mosby took office as Baltimore City State's Attorney. Four days later, Mosby fired Keri L. Borzilleri, who had been an assistant state's attorney ("ASA") for nine years. During the primary election, Borzilleri supported Mosby's opponent, Gregg Bernstein. Borzilleri did not have an official role in Bernstein's campaign, and she did not contribute financially. However, Borzilleri put a Bernstein sign in front of her home and hosted a gathering with Bernstein supporters.

On December 9, 2015, Borzilleri sued Mosby in the United States District Court for the District of Maryland. Borzilleri alleged Mosby fired her for supporting a political rival, in violation of Borzilleri's First Amendment rights to free speech and association; Maryland Declaration of Rights freedoms of speech and association; and under Maryland tort law. Mosby moved to dismiss all claims for failure to state a claim. The District Court granted Mosby's motion. Borzilleri appealed to the United States Court of Appeals for the Fourth Circuit.

First, the Fourth Circuit considered whether the firing violated Borzilleri's First Amendment right to free association. Looking to Supreme Court precedent, the Fourth Circuit explained there is a narrow exception to the association right, which allows policymaking government officials to be fired for their political beliefs. Whether a position is a policymaking one is defined by whether party affiliation is required to effectively perform the job. Based on this guidance, the Fourth Circuit has developed a two-part test for determining if a position is a policymaking one for First Amendment purposes. First, it considers whether the position involves decision-making on issues with room for political disagreement. Second, it examines whether the position's responsibilities resemble policymaking. The Fourth Circuit concluded that Baltimore City Assistant State's Attorneys are policymakers. It explained that ASAs make decisions subject to political disagreement about how resources are allocated toward prosecuting and investigating crimes, and negotiate plea deals. Also, Maryland state's attorneys delegate duties to ASAs, so the state's attorney may assess their confidence in the ASAs carrying out policies and goals. Borzilleri specifically made independent decisions, and she communicated policies to constituents as a Community Prosecutor. Lastly, the court noted that its sister circuits have unanimously held an ASA is a policymaking position.

Next, the court analyzed whether the firing violated Borzilleri's right to free speech. The Fourth Circuit explained that analyzing a public employee's right to free speech requires balancing the employee's interest as a citizen and the community's interest in the employee's opinion, with the government's interest in serving the public through employees. If the first two interests outweigh the third, the speech is protected. The court went on to state that if the policymaking exception applies to an employee, this balancing test generally tips in favor of the government's interest. If an employer does not violate an employee's association right by firing the employee for political disloyalty, the employer does not violate the employee's free speech right by firing the employee for speech displaying political disloyalty. Based on this logic, the court affirmed the District Court's ruling.

To read the full opinion, click here.

Panel: Judges Wilkinson, Traxler, and Agee

Argument Date: 09/14/2017

Date of Issued Opinion: 10/17/2017

Docket Number:
No. 16-1751

Affirmed by published opinion

Case Alert Author:
Ashley Fellona, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Stacey Kamya Grigsby, BOIES, SCHILLER & FLEXNER LLP, Washington, D.C., for Appellant. Patrick Browning Hughes, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Ryan Y. Park, Washington, D.C., Nafees Syed, BOIES, SCHILLER & FLEXNER LLP, New York, New York, for Appellant. Brian E. Frosh, Attorney General of Maryland, Julia Doyle Bernhardt, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellees.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor:
Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/21/2017 03:53 PM     4th Circuit  

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