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Who Wins in Politics v. Prosecutor?

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By William Vogeler, Esq. on October 20, 2017 2:05 PM

Keri Borzilleri, a Baltimore prosecutor, was a loyal public servant.

She had worked for the city for nine years and had been a champion for the people and her employer. When her boss ran for another term, Borzilleri had his back like a soldier. But he lost, and she got fired.

Borzilleri sued in Borzilleri v. Mosby; however, she learned loyalty is in the eyes of the office-holder.

First Speech

Baltimore is a big city, but the community of prosecutors is relatively small. About 100 attorneys report to the city's chief prosecutor.

Borzilleri had worked as a top assistant for nine years, and supported her boss in his campaign in 2014. She attended events, put a sign on her lawn, and hosted a gathering of supporters.

She also knew the opposition candidate, Marilyn Mosby. They had a cordial relationship before the election, but that changed when the campaign heated up. In her complaint, Borzilleri alleged that Mosby glared at her and declined to acknowledge her in public.

After she was fired, Borzilleri sued Mosby for violating her free speech, assembly rights and other tort claims. A federal judge dismissed the suit, and Borzilleri appealed.

Policy Makers' Exemption

Writing for the U.S. Fourth Circuit Court of Appeals, Judge J. Harvie Wilkinson said the First Amendment did not apply to Borzilleri.

It was a matter of political patronage, the court said, and an exemption for policy makers. A government employee cannot be fired legally for political reasons, but policy makers can be.

"To hold otherwise would undermine the public mandate bestowed upon the victor of a hard-fought election and would needlessly interfere with a state official's managerial prerogative," he wrote for the unanimous panel.

The judges left the door open for Bozilleri to file in state court, however. They noted that the state has concurrent jurisdiction to hear her non-constitutional claims.

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