A federal appeals court has sided with Baltimore State’s Attorney Marilyn Mosby in case over a politically charged firing, agreeing with the lower court that prosecutors are policymakers exempt from First Amendment political protections.
Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III wrote that “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.”
“Elections mean something. Majorities bestow mandates. Elected prosecutors translate those mandates into policies. And assistant prosecutors implement those policies,” Wilkinson wrote. “It is therefore entirely proper for an electoral victor to assess whether she has confidence in those charged with fulfilling her ‘duty to the electorate and the public at large to ensure that [her] espoused policies are implemented.’”
The lawsuit was brought by Keri Borzilleri, a prosecutor of nine years who was fired without cause four days after Mosby took office in 2015. The court said Borzilleri “took sides in a bruising Democratic primary,” putting a campaign sign for then-incumbent Gregg Bernstein in her yard and hosting a gathering of 20 Bernstein supporters at her home. Photos of the event appeared on Facebook, and she says Mosby glared at her and declined to acknowledge her in public.
Borzilleri argued that the firing violated her First Amendment rights to free speech and free association. The Maryland Attorney General’s Office, representing Mosby, argued Borzilleri was a “policymaker” and that political loyalty to the State’s Attorney was an “appropriate requirement” for the job.
Wilkinson wrote in the court’s opinion that “assistant prosecutors make discretionary decisions of real consequence. They oversee investigations, prosecute crimes, and negotiate plea deals. … These responsibilities are laden with ideological content.”
In the upcoming Democratic primary for State’s Attorney, candidate Thiru Vignarajah asked candidates to sign a pledge vowing that assistant state’s attorneys will not be hired or fired based on political allegiance. He said Tuesday that none of the other candidates, including Mosby, have signed the pledge.