Federal Appeals Court Overview

Legislative Prayer

 

Bormuth v. County of Jackson

Case No. 15-1869 (6th Cir. 2017)

 

Reversing the district court, the Sixth Circuit has found that a municipality’s practice of opening every meeting with a prayer delivered by a member of the Board of Commissioners, all of whom are Christian—to the exclusion of any other type of invocation—is subject to challenge by a non-Christian resident on Establishment Clause grounds. Jackson County, Michigan (County) opens every Board of Commissioners’ meeting with a request that all in attendance rise and bow their heads, after which a Commissioner delivers an invocation.  All nine Commissioners are Christian, as are all prayers; many invoke the name of the Lord and Jesus. Peter Bormuth, a self-described Pagan and Animist resident of the County, challenged the Board’s policy on First Amendment grounds, arguing that it constituted an establishment of religion and was coercive to non-Christians. He further argued that, following his objections about the prayer policy, the Commissioners refused to consider his application to join the County’s Solid Waste Committee, despite the fact that he had already worked with the County on the subject of solid waste for more than three years.

 

The district court held in favor of the County, finding that the Commissioners’ policy was merely a function of their own religious makeup, was not inconsistent with Town of Greece and did not constitute an establishment of Christianity.

 

The Sixth Circuit disagreed. It found that the County’s policy differed significantly with Marsh and Town of Greece in a crucial respect—the prayer givers were not clerics or volunteers from the community, they were the County’s own elected officials. This inherently colored the invocations as government speech and constituted an impermissible establishment of religion. The Circuit also saw evidence of coercion in 7 that all members of the public were expected to stand and bow their heads, making it very obvious if any attendee did not follow suit. And the fact that Bormuth was ostensibly passed over for a position for which he seemed eminently qualified only added to the suspicion that allegiance to Christianity (or not objecting thereto) was a de facto predicate for consideration by Commissioners.

The majority challenged the dissent which had pointed to the Fourth Circuit’s Rowan County decision (upholding a North Carolina county’s practice which was very similar to the defandant’s)—noting that the Fourth Circuit has decided to rehear an County Rowen banc.  To read the entire opinion, please click HERE.

 

First Amendment

Loftus v. Bobzien

Case No. 15-2164 (3d Cir. 2017)

 

Citing a long line of precedent and numerous municipal policies nationwide that prohibit a public servant from holding elected office while being otherwise employed by the municipality, the Third Circuit has upheld the firing of a Virginia assistant county attorney who won a seat on the local City Council. 

 

Nancy Loftus worked in Virginia’s Fairfax County (County) Attorney’s Office from 1997 to 2014 as an assistant county attorney, when she was terminated after getting elected to the Fairfax City Council (City Council). While these are separate and distinct jurisdictions, upon considering her run the County Attorney, David Bobzien, indicated that if she were elected, significant conflicts might well make it impossible for her to keep her job. Loftus and Bobzien went back and forth via email and letter on the issue. Both also contacted the Virginia State Bar Ethics committee, which issued a Legal Ethics Opinion analogizing the County Attorney’s Office to a law firm--and found that a partner in a law firm could not serve as a governmental public servant where the firm might find itself representing a party adverse to the governmental entity.

 

Ultimately, Bobzien terminated Loftus when she was elected, arguing the conflicts were too significant for her to maintain employment, because her role in City Council would extend those conflicts to the entire County Attorney’s office. Loftus initially challenged her termination through administrative processes at the County, wherein she was denied reinstatement, then before the Fairfax County Civil Service Commission, and after exhausting these administrative remedies, took her case to the district court, wherein she alleged she was fired “solely because she had been elected to the City 8 Council,” which violated her First Amendment rights. She sought an injunction and $6 million in damages. Her claim was dismissed under FRCP 12(b)(6). She appealed.

 

The Circuit identified Loftus’ two First Amendment arguments: 1) that she had an unfettered and inherent First Amendment right to hold public office and 2) that she should prevail under the Pickering balancing test when her First Amendment rights, “whatever they may be, are balanced against the concerns of her employer.” The Court noted it had never answered the first issue Loftus raised, but need not do so, because precedent makes clear that public employees that seek elected office face limitations different from the general public. Since the mid-1900s the Supreme Court upheld restrictions on public employee political rights in a variety of ways and has “deferred to the reasoned judgment of the legislative body or government entity charged with making determinations about the intersection of public employment and elected office.” This trend has continued and courts have upheld a slew of laws limiting public employees’ First Amendment rights to hold office, including Indiana’s “resign-to-run” law; the City of Dallas’ automatic resignation law (which states that any Dallas public employee who wins an elected office in a municipality having a contract with Dallas is deemed to have resigned from his or her public employment); and St. Louis’s Police Department rule prohibiting officers from becoming candidates for elected office. The Court thus easily affirmed the lower court under this first theory.

 

Loftus’ alternative argument – framing her termination as a violation of her First Amendment right to comment on matters of public concern – fared no better. The Circuit noted that cases under the first argument addressed Pickering and thus foreclosed success on her alternative argument, but also took the opportunity to apply the test. This was relative easily given that the burden on Bobzien and the County under such an analysis was not to show Loftus’ termination stemmed from an actual interference in the workplace, but a “reasonably” apprehended one. This “plainly favor[ed] Bobzien” and the County, according to the Court.  To read the entire opinion click HERE.