Labor & Employment – Public Employees – Constitutional – Free Speech & Association – Assistant State’s Attorney

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Borzilleri v. Mosby (Lawyers Weekly No. 001-187-17, 13 pp.) (J. Harvie Wilkinson III, J.) No. 16-1751; Oct. 17, 2017; USDC at Baltimore, Md. (J. Frederick Motz, S.J.) 4th Cir.

Holding: Since assistant state’s attorneys implement the policies of their elected bosses, the newly elected defendant-state’s attorney could fire the plaintiff-ASA for supporting defendant’s electoral opponent.

We affirm the district court’s order dismissing with prejudice plaintiff’s federal claims and her state-law freedom of association claim and dismissing without prejudice plaintiff’s state-law free speech claim.

During the 2014 primary campaign, plaintiff placed a sign in her yard and hosted a small gathering in support of her boss, the incumbent Baltimore City State’s Attorney. Photos from the gathering were posted on Facebook.

Defendant defeated the incumbent in the primary. When she took office, defendant fired plaintiff.

An elected official can require political loyalty from subordinates who are in policymaking positions.

As an assistant state’s attorney, plaintiff unquestionably held a policymaking position. ASAs oversee investigations, prosecute crimes, and negotiate plea deals. They represent and safeguard the public at large.

These responsibilities are laden with ideological content. How much of a prosecutor’s limited resources should go toward a particular category of crime? Does one type of plea deal call for leniency or severity?

There is much room for political disagreement in carrying out prosecutorial priorities. To entrench former policymakers could deprive democratic politics of its necessary adaptability. Furthermore, the public interest in the efficient administration of justice requires that decisions made by ASAs conform to the broad objectives chosen by the state’s attorney.

Plaintiff’s firing did not violate her federal constitutional rights to free association or free speech.

Affirmed.