Julius L. Finkelstein v. Louis P. Bergna
924 F.2d 1449
9th Cir.
1991
Check Treatment

*1 prepare accounting to allocation of inside

effects fisheries. FINKELSTEIN, L. Julius Plaintiff-Appellee, argument This suffers from the same previously. simply defects described There requirement is no Secretary do BERGNA, P. Louis appellants Further, what the insist. Defendant-Appellant. supports record Secretary’s assertion necessary information No. 87-2943. appellants analysis seek is unavailable United States Appeals, Court of Secretary’s decision, the time of the be- Ninth Circuit. fishery planning cause inside completed development of ocean regulations. after Argued and Submitted Dec. 1988. Aug. Decided 1989. CONCLUSION Opinion Withdrawn Jan. 1991. promul We affirm the Secretary’s Opinion Filed Jan. gation regulations for the 1988 ocean season. harvest We must defer to the of a

interpretation agency statute

charged administering it. Southern F.E.R.C.,

Cal. Edison Co. v. (9th Cir.1985). Secretary’s inter

pretation of his duties and obligations are

reasonable that he “has considered the

relevant factors and articulated rational

connection between the facts and the found

choice made.” Baltimore Gas Elec. & Co. Council,

v. Natural Resources Defense 87, 105,

We are not misled appellants’

insistence Secretary has mischar- arguments,

acterized their they all

are accounting after is an of the allocations

between Indian and fishers. non-Indian

The record demonstrates appel- ultimately

lants longer want to force fishing

ocean up season to make for al-

leged disparities. catch Secretary As the explained, his concern adequate is with

escapement perpetuate to the various salm- species to sport enable the industry and continue, particular, and in see that get

the Indians their share allocated

accordance with the treaties. Given this objective, Secretary

stated correct respond complaint to this as he did.

AFFIRMED. *2 Jose, Cal., Brown, for de-

Craig M. San fendant-appellant. Cal., Exelrod, Francisco,

Alan B. San plaintiff-appellee. BEEZER, FLETCHER

Before KING,* Judges, and District Circuit Judge.

BEEZER, Judge: Circuit rehearing granted. petition for The 2, 1989, pub- August opinion The filed 702, is withdrawn. at 881 F.2d lished rehearing en is dis- banc suggestion as moot. missed OPINION brought against suit Julius court under Bergna federal Louis claiming violations U.S.C. § in addi- fourteenth amendment law claims. pendent state tion to several moved for Bergna he entitled ground that was all claims. immunity from suit on Bergna’s motion. court denied over jurisdiction appeals. We have sitting by designation. King, United P. Senior Honorable Samuel *The Hawaii, Judge District of for the States District interlocutory appeal under 28 U.S.C. work deputy prosecutor in Santa Clara 1291. Mitchell v. Forsyth, County. § This suit followed. (1985). We reverse the district court’s de- I *3 summary nial of judgment the first An official is entitled to amendment claim and affirm in all other immunity when the official’s conduct “does respects. not violate clearly established statutory or In 1982 Julius deputy Finkelstein was a constitutional which a reasonable attorney in district County, Santa Clara person would have known.” Harlow v. California. Finkelstein worked for Louis Fitzgerald, 800, 818, 457 U.S. 102 S.Ct. Bergna, the elected District Attorney in 2727, 2738, 73 (1982); L.Ed.2d 396 County. Clara Bergna Santa did not run Valenzuela, Schwartzman v. 846 F.2d for reelection in 1982. Finkelstein and Leo 1209, (9th Cir.1988). 1211 In order for an Himmelsbach, another deputy district at- official to clearly violate rights, established torney, running Bergna’s position. the unlawfulness challenged of the conduct Bergna supported Himmelsbach’s bid to must apparent be in light of preexisting him in succeed office. Finkelstein lost the law. Anderson v. Creighton, 635, 483 U.S. election. 639, 107 S.Ct. 97 L.Ed.2d 523 election, (1987).

Shortly before the press re- Whether the clearly law was estab ceived information question about Himmelsbach’s lished is a al- of law reviewed de legedly improper conduct Brady Gebbie, novo. v. deputy while a 1543, 859 F.2d attorney (9th denied, Bergna Cir.1988), 1556 cert. believed 489 U.S. 1100, that Finkelstein was 1577, the source of 109 “leak” newspapers and that Finkel-

stein had retrieved the leaked information by making entry unauthorized into the of- A personnel fice’s confidential files. Bergna Bergna concedes that Finkelstein has a suspended Finkelstein providing without protected property interest in his under opportunity him an deny to that he was California protected law. Once a responsible the leak. Immediately found, inquiry is process turns to what thereafter, Bergna press a held conference Cleland, v. is due. 372, 708 F.2d Orloff announcing suspension (9th Cir.1983). 378-79 implicating Finkelstein in the unauthorized Bergna contends that it was not entry personnel into the files and the sub- 1982 that tempo sequent press. Bergna’s leak to the com- rary suspension, as opposed discharge, to a widespread coverage ments received implicate could procedural protections newspapers. alleges Finkelstein process of the due Bergna clause. is incor suspension, and its announcement at a See, e.g., Lopez, Goss v. 565, rect. press conference, were intended to thwart 95 (1975) 42 (suspen bid for office. implicated sion of student liberty prop A subsequent report Attorney from the erty requiring procedural pro interests due office General’s stated that there in- Cleland, cess); Devine v. 616 F.2d 1080 sufficient evidence to determine who (9th Cir.1980) (suspension of VA education press. leaked information to the Fur- required al benefits presuspension process). ther, due to lax keeping in the of- record fice, it could not be whether Bergna determined next contends that personnel access to the post-deprivation files had been ac- process afforded Finkel complished in an unauthorized manner. stein was sufficient require to meet challenged propriety Finkelstein process ments of the due clause. suspension postsuspension hearings. again He is incorrect. Pursuant to the three- challenges. part lost those Finkelstein was test announced in Mathews v. El dridge, position reinstated to his continues 47 1452 alleges cog- thus consistently suspension. (1976), we 18 have L.Ed.2d claim. liberty interest nizable process predeprivation where

held that per feasible, before afforded must be it was not argues that Bergna again inter of a may deprived son pro- presuspension clearly established City Ass’n. v. Lake Owners est. Sinaloa liberty interest is required when cess is (9th 1475, 1481-83 F.2d Valley, post-termi- argues He at issue. of Simi Cir.), 882 F.2d part, in unrelated hearing name-clearing afforded modified nation Cir.1989); Mackey, v. (9th Merritt meet the alone sufficient Finkelstein was Cir.1987); (9th Vanelli F.2d re- have process. We requirements of due F.2d No. District Reynolds School Vanelli, argument. jected that Cir.1982). (9th 773, 778 *4 778 n. 8. correctly concluded district court correctly The concluded court The district of clear- alleged a violation that Finkelstein of clear- alleged a violation that Finkelstein accordingly af- law and we ly accordingly established af- we law and ly established immunity with qualified of immunity firm the denial on qualified of firm denial claim. property interest regard liberty claim. C

B suspension that his contends Bergna also that his sus claims also Finkelstein and autho was reasonable of liberty interest of a deprived him pension entitling him law, thereby by rized state Bergna again of law. process without due immunity. This misconceives qualified clearly established it was not that contends question before us The question at issue. impli suspension could temporary that a were rea Bergna’s actions whether is not disagree. We liberty interest. a cate law, but whether under state sonable 574-76, at 736-37 Goss, 95 clearly estab challenged violates conduct liberty in suspension implicated (tenday law, process here due federal lished Police terest); v. Board see also Click of It is amendment. of the fourteenth clause (W.D.Mo. 1199, 1204 Comm’rs, F.Supp. 609 Bergna’s whether jury decide for implicated a 1985) (three-day suspension Brady, 859 F.2d was conduct reasonable. interest). liberty 571, F.2d 1556; Kelly, 858 v. Thorsted a, stated discharge case—we In Vanelli— 1988). (9th Cir. 575-76 if a “implicated liberty interest that hon- reputation for impairs charge [one’s] D protec- procedural morality. esty or on Bergna moved accuracy if the apply process tions of due argued law claims and pendent state contested, is some there charge is analysis should be immunity Harlow charge, and it is public disclosure court The district to those claims. applied the termination made in connection agree with argument. We rejected this some the alteration employment or merit- argument this find court and district law.” by state recognized right or status by Seventh stated the reason less for (footnotes Vanelli, F.2d at 777-78 667 Ass’n v. National Guard Oyler Circuit. added). It is clear emphasis omitted and 545, (7th States, F.2d United of Cir.1984) morality honesty argument as it this (rejecting Bergna intimated impugned when an unwarrant- “obviously constitute would confidential gained access that he had the sub- by this court with ed interference unauthorized, under- in an files personnel state]."). law of stantive [a Fink- handed, illegal manner. perhaps disclosed publicly those elstein contested II right to alleges charges. He also concluded also court or status right employment, a continued not entitled to was by the law, altered by state conferred immunity on the first amendment claim. particularly Newcomb is point to our clearly Because the law was not estab- analysis Newcomb, here. deputy city 1982, lished we reverse. attorney superior told his that he intended Congress. to run for superior His threat- by It was 1982 that ran; ened to fire him if he Newcomb ran public employees disciplined could not be anyway and was discharged. The court solely exercising upheld blatantly political firing, con- rights. Mt. Healthy City See School Dis cluding that Newcomb’s first amendment Doyle, trict Board Education v. concerns were city overridden attor- U.S. 50 L.Ed.2d 471 ney’s need for loyalty. Newcomb, absolute (1977); Education, Pickering v. Board of 558 F.2d at 829-31. The court in Mum- mau echoed the same rationale. (1968). Disciplinary discouraging action candidate’s bid for “repre elective office largely Newcomb Mummau turned punishment by the state based on sented] on determinations prosecu- that assistant the content of a act” pro communicative policymaking officials, tors were thus vir- tected the first amendment. Newcomb tually employees. at-will The Newcomb Brennan, (7th Cir.), 828-29 court specifically recognized, dicta, *5 denied, 968, 513, cert. 98 S.Ct. 54 person with civil might service status be clearly It was also in a different and more position suspensions impli could political appointee. than a 558 F.2d at 830. rights. cate first amendment See Peacock However, this distinction was not suffi- Duval, 644, (9th Cir.1982) 694 F.2d 645 ciently clear from the in case law 1982 to case); (suspension discharge and Porter v. deny a Bergna’s posi- reasonable official in 770, (5th Califano, Cir.1979) 592 F.2d 776 qualified immunity tion from Finkelstein’s (thirty-day suspension implicated first first amendment claim. rights). amendment conclude, light We cannot in pre Nevertheless, clearly it was not estab law, existing the unlawfulness of lished in 1982 that prosecutors pro Bergna’s conduct established in tected the first amendment from such Anderson, 639, 483 atU.S. 107 S.Ct. disciplinary Burns, In action. Elrod v. 427 add, however, at 3038. We hasten to 347, 367, 372, U.S. 96 S.Ct. reject proposition we prosecutors (1976) (plurality 49 L.Ed.2d 547 opin have unfettered discipline discretion to as ion), Supreme recognized Court had an prosecutors sistant for exercising their exception general public to the rule for rights. first Shortly after the employees in policymaking positions. Sev Supreme Branti, Court decided it con applied eral courts exception the Elrod challenge sidered a first amendment prosecutors. assistant See Mummau v. discharge of an prosecutor. assistant Ranck, (3d Cir.1982) (per 10 Connick v. Myers, U.S. 103 S.Ct. curiam); Newcomb, 558 F.2d 829-31. 1684, (1983), 75 L.Ed.2d 708 the Court con Court, Finkel, Supreme in Branti v. cluded Myers, prosecutor, an assistant 507, 100 engaged protected speech. had in Id. at (1980), exception held that the Elrod did 150-54, 103 though 1691-94. Even not extend to assistant defenders. ultimately concluded that she could be footnote, But in a the Court stated: reasons, discharged for other the Court This is in contrast to the broader made no reference to footnote 13 in Bran- responsibilities of an such official ; Myers’ position ti as prosecu an assistant prosecutor. express opinion We no as to unimportant tor was to the Court’s deputy whether the such official straightforward application general could grounds politi- be dismissed on prohibiting discharge public employ rule party loyalty. cal affiliation or solely exercising ees for first amendment rights. Abrams, Id. at 519 n. at 1295 n. 13 See also Giacalone v. (citing Newcomb). (2nd Cir.1988) F.2d (applying traditional him with- suspending rights by claim amendment in interests

balancing of § hearing. such a of out for violation prosecutor brought rights). first amendment in His Property Interest I. Finkelstein’s Employment Ill majori- analysis in the process In the due reasons, affirm we foregoing For the “Bergna I, note that in Part we ty opinion motion Bergna’s denial of court’s that Finkelstein concedes on all but judgment summary law.” California his under in de- court’s The district claims. California, only Not at 1451. supra See summary judg- Bergna’s nial of motion 1989),2 (West 1101-1102 Cal.Lab.Code §§ is re- claim on the ment em- County, Finkelstein’s Clara but Santa shall and versed as grants Finkelstein ployer, specifically that claim. against entered property interest attorney a deputy district Ac- to trial. may proceed claims All other em- a civil service As employment. their own bear party shall cordingly, each not serve Finkelstein did ployee, court is the district decision costs. The Attorney, District the elected pleasure of only for disciplined Bergna, could be IN PART REVERSED AFFIRMED po- disciplined for not be could cause. He IN PART. litical beliefs. County the Santa Clara VII of Article concurring FLETCHER, Judge, Circuit governed in 1982 in force Code Charter and dissenting part: part matters. Section personnel county’s rehear- granting panel errs I think *6 ground rules: 700 laid the is sound opinion the revised of ing.1 Much county of the system personnel from dissent respectfully I must but equal oppor- on merit be based shall denial of summa- II of the in Part reversal tunity. was Bergna that the basis ry judgment on promotions Appointments immunity on Finkel- qualified to entitled county shall service administrative First, the claim. amendment stein’s first sys- with merit in conformance be made prosecutor’s deputy clear that law was law, includ- applicable all tem rules in- not be rights could of to the effectuation pertaining ing that time action. At by disciplinary fringed and af- opportunities employment equal clearly the law suspension, of Finkelstein’s programs. action firmative Second, I must Bergna’s action. prohibited seeking em- or employed person No how understand a loss to say I am at unlaw- county shall be ployment with clear was agree that the law can majority against because fully discriminated had prosecutor deputy Finkelstein that creed, origin, political color, national age, job that in interest his property sex, ac- race, or union religion, opinions, pre- discipline without his preclude would tivity. was that the law hearing but deprivation county’s employ- govern the rules These a nature of such job his was that not clear action, actions, disciplinary including first ment his infringe could not his boss directing, tending to (b) Controlling or or rely original opinion to amend 1. I would political or af- activities Myers, U.S. or direct control support than Connick other (1983), employees. but filiations es- and the the same should remain reads: result Section 1102 reasoning is sound. or sential or employer coerce influence shall No employees his attempt or influence to coerce 1101 reads: Section discharge or by threat of through means of or make, adopt, enforce or employer shall No adopt follow or employment or loss of rule, policy: any regulation, or following any partic- adopting or from refrain employees (a) preventing Forbidding or politi- political or action or line of ular course politics or engaging in participating or from activity. cal public office. becoming from candidates involving employees, classified but not un- general cutors as a class from the rule that employees. classified Section 701 public lists employees disciplined cannot be “the” attorney district as an unclassified exercising their first rights. position. County Santa Clara Charter & That interpretation unjustified. The cru- 701(a)(1) (1976) (“All county Code elective § cial issue is not what broad category officers”). However, deputy district attor- into; the employee falls it is what role the neys employees. 701(b) are classified Id. employee § plays by as defined (“The comprise classified service shall all employer. positions specifically not by included Bergna For exempt from liability, service.”). article the unclassified discipline his of Finkelstein “must further alleges paragraph 1 of his government some vital by end a means that complaint deputy second amended as is least restrictive of freedom of belief and attorney permanent he was a Santa achieving end, association in and the County employee Clara in the classified gained benefit to be outweigh must service. Bergna allegation admits this constitutionally loss of protected rights.” agreed answer and has that Finkelstein Burns, Elrod v. 347, 363, 96 S.Ct. his job. 2673, 2685, (1976) 49 L.Ed.2d 547 (plurality opinion). The burden rests on the II. Disciplinary Action employer to prove employee holds Bergna is not entitled to immu- a policy-making position that restricts his nity if the “contours” of right speak out particular on a matter. right “sufficiently are clear Id. at 96 S.Ct. 2687. The Elrod that a reasonable official would understand plurality cited political “the need for loyal- doing that what he is right.” violates that ty ... representative end that v. Creighton, 635, 640, Anderson government not be undercut tactics ob- structing implementation policies light pre-existing law the un- “[I]n administration, policies new presum- Id. apparent.” lawfulness must be ably Id. sanctioned the electorate.” states, at 2687. It As the concluded majority limiting discipline policymaking “to posi- discipline could not *7 Finkelstein, tions is sufficient govern- achieve this public employee, solely for Id. mental end.” Justices exercising his Stewart first on and amendment agreed Blackmun plurality with the on Mt. of See matters concern. point, concluding that Healthy City School Dist. nonpolicymaking, “a Edu Bd. of government nonconfidential Doyle, cation v. 274, 568, employee 429 U.S. 97 S.Ct. [can- discharged be or threatened (1977); 50 with dis- Pickering v. Board L.Ed.2d 471 not] charge job Education, from a that he 563, 1731, satisfactorily is 391 U.S. of performing upon ground the sole 20 majority L.Ed.2d 811 also Id. at political beliefs.” 96 correctly S.Ct. at suspensions asserts that are not (Stewart, J., 2690 concurring). exempt from this rule and the first that protection “discipli extends to The Elrod plurality addressed the defin- nary discouraging action particular candi ing policymaking characteristics of a em- supra See bid for elective office.” date’s ployee. responsibilities nature of the “The at 1453. critical_ is An employee responsi- with ways I part majority with the where it bilities that not well defined or are are of concludes that the scope likely law was not es- broad poli- more in a functions in 1982 that the cymaking tablished position.... [Consideration protected a deputy prosecutor, given particularly should also to whether the em- one disciplinary ployee who from acts as an adviser or formulates political opinions by plans implementation action for his the coun- the of broad ty’s 367-68, Id. majority goals.” own rules. The seems 96 S.Ct. at In Finkel, Branti v. interpret excluding prose- the case law as 100 1456 results, misunderstands the (1980), majority the the misconceives the clarified, ma- contrary policy behind Elrod further Court immunity inquiry. inquiry “the ultimate nature of the position, that

jority’s or ‘policymaker’ the label not whether case, v. Mummau recent The more position; particular fits a ‘confidential’ 1982), (3d held that Ranch, F.2d 9 Cir. hiring the rather, question is whether the attorney qualified an assistant affil- party that authority can demonstrate circuit af exception. The third the Elrod appropriate is an political iation belief] [or relying type on the court firmed the district performance effective for the requirement Marshall, analysis out Ness v. set public office involved.” the (3d Cir.1981). holding that F.2d 517 employee a employer gives an If a plain dismiss Mayor Marshall could employment, defin interest in her solicitor, city solic city an assistant tiffs—a regula relationship by statute or ing city solicitor— itor, and a second assistant available to tion, disciplinary measures affiliation, party political because of necessarily to loyalty are limited ensure the solicitors’ duties court examined Ness agreed conformity enforcement city’s code. administrative as defined mea disciplinary terms. The employment appointed They at 521. Id. loyalty against available to enforce sures i.e., mayor, pleasure of the served property interest who has no employee an jobs. in their property interest they had no obviously are much broader. her city in its represented the They advised excep the Elrod Including persons within matters; prose as they did not serve legal employer has the public for whom tion involved the responsibilities cutors. These unnec disciplinary measures such deemed ad and “broad policymaking solicitors exception’s promote not essary does (quoting district roles.” Id. ministrative meet employer cannot Such purpose. decision). Although court memorandum employer that requirement Branti’s summary judg affirmed a court the Ness employee’s political demonstrate government offi for the defendant ment job per necessary effective loyalty is summary judg cials, court noted Branti, formance. evidence ex appropriate where ment is not employment employer’s at 1294. claim to a employee’s supports ists conclusively demonstrates instead policy role, especially since the nonpolicymaking employer has found opposite; the proving the burden government bears require the functions do not employee’s at 522. Mummau role. Id. policymaking Newcomb implicated by Elrod. See loyalty case-by-case approach and on Ness’s relies (7th Brennan, Cir. determination the district court’s attorney 1977) exemption city (city’s law statutory and case relat “Pennsylvania be “presumably” civil service was from Pennsylvania’s obligations of ing to the A loyalty). required his absolute cause *8 jus assistants” attorneys and their district then, Elrod, em corollary is poli- fit the plaintiffs finding that the tified in their interest given property a ployees at 10. An as description. Id. cymaking necessarily do not fall within employment Pennsylvania attorney in sistant against disci exception to rule Elrod’s the district attor consonant with has duties activity. political because pline “render[ing] legal ad include ney, which El- applying circuit court Two decisions v. policy.” Mummau implementing vice my disagreement strength to rod lend (E.D.Pa. 402, 404-05 Ranck, F.Supp. Al- reading the case law. majority’s 1982). in favor of though courts decided both majority which The other case on defendant, reasoning put government their case before us in from the relies differs they like on notice officials Brennan, respects. Newcomb crucial who discipline subordinates not could Newcomb, (7th Cir.1977). F.2d political rea- policymaking power for lacked to run attorney, decided deputy city results looking only at the cases’ In sons. Brennan, city attor- as the who Congress. those courts reach not at how the and superior, ney against was Newcomb’s told discipline New- because of exercise of that he would fire him if he did comb not first rights. The Seventh Cir- withdraw from race. When Newcomb cuit specifically looked city’s code persisted, through Brennan followed on his and exactly charter to determine what threat. responsibilities Newcomb’s and they whether demonstrated that city finding that the After policymaker. considered him a Both Ness seeking Newcomb’s “interest in and plaintiffs’ Newcomb relied on the ex- office,” agreed the court with the district emption service, from civil and Mummau finding policy- court’s that Newcomb was a relied on the plaintiff’s statute to define exempt maker. from Newcomb was civil employment words, status. In other city service. Id. at 827. The code and distinguishing persons specifically given a imposed upon deputy city attorneys charter property in employment by their attorney, city all of the duties of the “in- regulation, statute or strongly these cases cluding conducting all the law business of support the conclusion that a em- ordinances, city, drafting supervis- ployee such policy- as Finkelstein is not a ing attorneys.” city assistant Id. at 829. falling maker within the exception Elrod if Newcomb was also line to succeed the employer guarantees him property Mayor vacancy if a occurred. Id. The job. interest in his “clearly court concluded these facts employment duties were status differs [Newcomb’s] scope’ which the markedly plaintiffs’ Ness, ‘broad Elrod Court from the New- comb, equated policymaking with a function.” and Mummau. Finkelstein has a property Id. job guaranteed interest in his him county governing charter his em- city’s The court also held that the inter- ployer, county. Santa County’s Clara being est in able dismiss Newcomb out- prohibits Code and discriminating Charter weighed Newcomb’s against political him on the opin- basis of rights. at 830. The Id. court described prohibited ion. California law also any ef- “highly discretionary.” role as Newcomb’s Bergna’s fort on part to restrain Finkel- Many implement Id. of his decisions would candidacy. stein’s plaintiffs The in Ness city attorney’s policies, and some would did property Newcomb not have such a actually policy. create The court concluded interest, nor did Mummau. responsibilities required depu- that these ty city attorney’s level, loyalty, absolute surmis- elementary On even more not ing presumably is for this reason even supports Newcomb’s result the ma- “[i]t City City jority’s ... Charter and Code use of the case to the effect that permit city attorney existing prosecutors unfettered discre- case law excluded all deputy tion to select his and exclude the from jobs. interests their position deputy city attorney majority particular- from the states that Newcomb attorneys ly point factually; civil service tenure which lesser on is not. addition city attorney’s being exempt office receive.” Id. to Newcomb from civil ser- vice, kind, prosecutor any he was not majority apply seeks Elrod’s ex- assistant or otherwise. He served as the ception prosecutors category counsel, city’s prose- which did not include support. focusing cites While Newcomb significant cutorial duties. There is a dif- result, majority totally *9 Newcomb’s responsibilities ference between the aof ignores reasoning the Newcomb court’s on counsel, city’s representing advancing qualified immunity claim. Like the interests, city’s prosecutor, and a an Mummau, Third in Circuit the Newcomb charged doing officer of the court plain- analysis court did a functional justice under the criminal law. job responsibilities. tiffs It not did as- sume, does, persons majority majority as the that all The concludes that a footnote in label, Branti, particular “pros- with a job broad like 445 U.S. at 519 n. lOO.S.Ct. ecutor,” general n. excepted are from rule demonstrates that the law re- summary denying in court erred at the was unsettled garding prosecutors holding granting majority’s suspension. judgment. See su- Finkelstein’s time of county Bergna summary on immunity qualified Branti held pra at 1453. public defend- in the assistant to understand judgment not dismiss is difficult could affil- political party he had a the basis evidence that ers on of Finkelstein’s face pri- that Bergna The court stated job, iation. in his which property “[t]he interest only, responsibility of mary, if not the conceded, policy- he not a and that was represent defender is to public hand, assistant the other making employee. On controversy with the citizens individual Bergna, who has the record reveals In 100 S.Ct. at 1289. State.” Id. evidence to has offered no proof, burden sentence, the Court footnote to Finkelstein is a position that support the noted, in contrast to the broader “This is fact, has conceded he policymaker. of an official such as responsibilities public allegation by agreeing factual Finkelstein’s opinion as to express no prosecutor. We a property interest that Finkelstein has such an official deputy of whether the employment. his grounds political could dismissed be grant of summa- Although majority’s loyalty.” n. 13. or Id. party affiliation present- who has ry judgment party majority inferences the Contrary to the party whose against ed no evidence Court, footnote, the al- draws from this allegation is conceded crucial factual prosecutor “with implying that the though me, inexplicable I find even more amazes than responsibilities” broader analysis in majority’s category might in a different defenders analysis. In the process light of its due them, depu- clearly separated out from view, property has a majority’s Finkelstein the chief different from prosecutors as ty Bergna cannot de- job, in his so interest should Probably no inferences prosecutor. by violating his interest prive him of that way one or from the footnote be drawn however, can, Bergna process rights. due majori- another, certainly those that the not property his interest deprive him of simply notes The footnote ty would draw. rights. This violating his first amendment it the Court so is not before that the issue county has seen fit sense. If the makes no the issue—noth- to decide has no occasion interest, specifi- grant property him that to reflect be taken ing opinion should of his cally prohibiting discipline because the issue. It does specific position on activities, majority how can the political law. Es- unsettle the nothing to settle or diametrically opposed finding that justify of the Su- only relevance sentially, the loyalty so county must consider that the chief nondecision is preme Court’s suspend be able to important should subject to attorney remains prosecuting activity, even if it political assistants’ liability violations of his rights? constitutional violates case-by-case under the in his Either he has applied by Elrod and inquiry mandated hearing before sus- entitles him to a Mummau, Ness, and Newcomb. property inter- no such pension or he has Mummau, Branti, New- nor Neither away in the first majority takes est. The understanding majority’s support the comb it has ren- analysis which depu- Finkelstein’s status of the law. process analysis. in the due dered give automatically not ty prosecutor does law was immunity. The Bergna qualified CONCLUSION time of the point at the on this well settled opinion was flawed its panel initial justified Bergna suspension. Neither has Connick, a it relied on reasoning in that immunity grant of majority’s case, in this post-dated the events case that stage on holding that the law support its evidence present facts. must However, pre-Connick well-established. as a matter lead us to conclude would *10 well-established, although not as law was policymaking in a that Finkelstein was law On the nicely packaged as Connick. find that the us to position in order for county facts of this case where the charter spells

and code out Finkelstein’s role and rights deputy prosecutor, as including

his first amendment and

right job, parties in his and majori-

ty agree property right he job. in his majority agrees that he is entitled to a

hearing suspension before from his point.

that the law was well settled on this facts, grant qualified

On these immunity stage

on the first amendment claim is extraordi-

nary, illogical, wrong. I would affirm

the district court.

Bobby SAVAGE, R.

Petitioner-Appellant,

Wayne ESTELLE, Warden, al., et

Respondent-Appellee.

No. 87-6681. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Oct. 1988. July

Decided 1990.

As Rehearing Amended on Denial of Rehearing En Banc Feb.