Rebecca S. Hollenbaugh and Fred K. Philburn v. Carnegie Free Library, of Connellsville, Pennsylvania, 545 F.2d 382, 3rd Cir. (1976)

545 F.
2d 382
Rebecca S. HOLLENBAUGH and Fred K. Philburn,

Appellants,
v.
CARNEGIE FREE LIBRARY, OF CONNELLSVILLE,
PENNSYLVANIA, et al.
No. 76-1273.
United States Court of Appeals,

Third Circuit.
Submitted Oct. 21, 1976.
Decided Nov. 22, 1976.
Mary Warman Terry, Warman & Warman, Uniontown, Pa., for

appellants.
Ernest P. DeHaas, III, Coldren & Coldren, Uniontown, Pa., for appellees.
Before ALDISERT and GIBBONS, Circuit Judges, and McGLYNN,*
District Judge.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
We are to decide whether the district court erred in summarily denying relief to
appellants, two former community library employees who asserted
constitutional deprivation when the library trustees terminated their
employment. Alleging that the trustees infringed rights secured by the First,
Fourth, Ninth, and Fourteenth Amendments, and 42 U.S.C. 1983, appellants
brought a civil rights action with jurisdiction based on 28 U.S.C. 1331 and 28
U.S.C. 1343(3) and (4), 1 seeking declaratory and injunctive relief and
monetary damages. The district court found that appellants failed to establish
the requisite state involvement to sustain jurisdiction. Accordingly, it entered
summary judgment in favor of the defendants without reaching the merits of
the complaint. We reverse on the issue of state action.
I.
2
In Magill v. Avonworth Baseball Conference, 516 F.2d 1328 (3d Cir. 1975),
this court analyzed in detail the considerations necessary to determine whether
the conduct of a private entity falls within the rubric of state action. We said:
3 discussion of the "protean concept" of state action must begin with the Civil
Any
Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883). It was there the Supreme
Court first enunciated the principle that "(i)ndividual invasion of individual rights is
not the subject-matter of the (Fourteenth) amendment"; only "state action of a
particular character . . . is prohibited." Ibid. at 11, 3 S.Ct. at 21.
4
Notwithstanding
the Civil Rights Cases, subsequent decisions of the Supreme Court
have pierced the seemingly impenetrable veil of private, individual conduct to find
state action. These cases have the capability of being grouped into three general
categories: (1) where state courts enforced an agreement affecting private parties; (2)
where the state "significantly" involved itself with the private party; and (3) where
there was private performance of a government function.
5
516 F.2d at 1331 (footnotes omitted).
As in Magill, we are not concerned here with the first and third categories.
These are not circumstances in which state courts have enforced an agreement
affecting private parties; nor can it be said that the operation of a library
constitutes private performance of a function traditionally associated with
sovereignty. Rather, the polestar of our analysis must be whether the state
involvement in the challenged action of the library is "significant", see Reitman
v. Mulkey, 387 U.S. 369, 378, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), that
is, "the inquiry must be whether there is a sufficiently close nexus between the
State and the challenged action . . . so that the action of the latter may be fairly
treated as that of the State itself," Jackson v. Metropolitan Edison Co., 419 U.S.
345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974), citing Moose Lodge No.
107 v. Irvis, 407 U.S. 163, 176, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), or
whether the "State has so far insinuated itself into a position of interdependence
with (the library) that it must be recognized as a joint participant in the
challenged activity." Burton v. Wilmington Parking Authority, 365 U.S. 715,
725, 81 S.Ct. 856, 862, 6 L.Ed.2d 45 (1961).
A nexus test is necessarily one of degree. As we observed in Magill, the

Supreme Court has not fashioned "any definitive state action formula"; rather,
the Court "admits to extreme difficulty in articulating an all-inclusive test and
seems to emphasize that, within the confines of certain guidelines, the presence
or absence of state action must be determined on a case-by-case basis." 516

F.2d at 1332 (footnotes omitted). Accordingly, it is "by sifting facts and
weighing circumstances", Burton, supra, 365 U.S. at 722, 81 S.Ct. at 1332, that
we have concluded that the district court erred in finding no state action.
II.
8
Appellants' employment was terminated by the Board of Trustees of the

Carnegie Free Library of Connellsville on August 9, 1973. The narrative facts
concerning government involvement with the library during the relevant time
period were fully developed below and appellants make "no contention that
summary judgment was precluded by the necessity of further evidentiary
development." Appellants' Brief at 1.
For the years 1973 and 1974, the library received approximately 90 per cent of
its financial support from local municipalities, school districts, and the
Commonwealth of Pennsylvania. In 1973, the library's total income for
operating expenditures was $64,402.00; this sum included $41,855.00 from
local government sources and $16,793.00 in state aid. Of its total 1974 income
of $53,173.16 for operating expenditures, $33,080.00 was received from local
government sources, and $15,832.00 in state aid. These monies were used for
general purposes of the library, including staff costs, library materials, and
other operating expenditures.
10
Of the 24 authorized members of the Library's Board of Trustees, 15 may be

appointed by local governments, with terms concurrent with their terms in
office in the appointing local government bodies. On August 9, 1973, when
appellants were discharged, 11 members of the Board were members by virtue
of such appointment, including three members of the Connellsville City
Council, three members of the Connellsville Area School Board, the South
Connellsville Borough Council President, a Connellsville Township supervisor,
the Vanderbilt Borough Council President, a Springfield Township supervisor,
and a Saltlick Township supervisor.
11
The Connellsville Area School Board and the Connellsville City Council have,
by proper resolutions, agreed that the school district and the city will assist in
the maintenance of the Carnegie Free Library in accordance with section 401 of
Pennsylvania's Library Code, 24 Purdon Stat.Anno. 4401. These agreements
provide a level of financial support which, together with the support given by
other municipalities comprising the school district, ensures that the library will
be able to qualify annually for state financial aid.2 In addition to receiving
financial assistance, the library has accepted designation by the Connellsville
Area School District and the City of Connellsville "as agent to act for and on
behalf of the said School District and of the said City to provide public library
service to the residents and taxpayers of the said School District and of the said
City."
III.
12
In reaching our conclusion that there is sufficient state involvement here to

support jurisdiction, we are mindful that "(d)ecisions on the constitutionality of
state involvement in private discrimination do not turn on whether the state aid
adds up to 51 per cent or adds up to only 49 per cent of the support of the . . .
institution." Norwood v. Harrison, 413 U.S. 455, 466, 93 S.Ct. 2804, 2811, 37
L.Ed.2d 723 (1973), quoting Poindexter v. Louisiana Financial Assistance
Comm'n, 275 F.Supp. 833, 854 (E.D.La.1967), aff'd mem. 389 U.S. 571, 88
S.Ct. 693, 19 L.Ed.2d 780 (1968). And we agree with Judge Marvin Frankel in
Grossner v. Trustees of Columbia University, 287 F.Supp. 535, 547-48
(S.D.N.Y.1968), that "receipt of money from the State is not, without a good
deal more, enough to make the recipient an agency or instrumentality of the
Government."
13
But here we believe there was a good deal more. There was massive
government financing, in the vicinity of 90 per cent rather than the 49 or 51 per
cent discussed in Poindexter, supra ; and the city had authorized the imposition
of a tax for the express purpose of supporting the library. Although concededly
not controlling, we believe these are significant factors. Unlike Magill, where "
(p)laintiff's evidence did not establish that the program was represented as
being sponsored by the municipalities," 516 F.2d at 1335, here there was an
explicit representation that the library was to act "as agent for and on behalf of"
the school district and the city in providing public library service. In addition, a
majority of the library's trustees were appointable by governmental bodies. The
totality of these circumstances compels our conclusion that state involvement in
the library's operation was significant.
14
Under these circumstances, it is impossible to distinguish the state's

involvement in the allegedly discriminatory employment determination from
the state's involvement in the general operation of the library. That the state's
extensive participation in the comprehensive program may obviate a need to
show involvement in the specific activity challenged is illustrated by Burton,
supra, 365 U.S. at 725, 81 S.Ct. 856, 862, finding that state action existed
despite the lack of state participation in the formulation of the segregation
policy in issue. In the present case, the state's interdependence with the library
establishes it as a "joint participant in the challenged activity," ibid., in a
"symbiotic relationship" with the library, Jackson, supra, 419 U.S. at 357, 95
S.Ct. at 457, making it unnecessary to show specific state participation in the
challenged action.
15
We emphasize, in reversing the judgment of the district court, that we do not

reach the merits of appellants' complaint. We suggest that, in adjudicating the
merits, the district court consider the possible application of Bishop v. Wood,
426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).
16
The judgment of the district court granting summary judgment in favor of the
defendants on the sole ground of the absence of state action will be reversed,
and the cause remanded to the district court for further proceedings.
Joseph L. McGlynn, Jr., of the United States District Court for the Eastern
District of Pennsylvania, sitting by designation
28 U.S.C. 1343. Civil rights and elective franchise

The district courts shall have original jurisdiction of any civil action authorized
by law to be commenced by any person:
(3) To redress the deprivation, under color of any State law, statute, ordinance,
regulation, custom or usage, of any right, privilege or immunity secured by the
Constitution of the United States or by any Act of Congress providing for equal
rights of citizens or of all persons within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any Act of
Congress providing for the protection of civil rights, including the right to vote.
The resolution of the Connellsville City Council provides, in part:

The City of Connellsville agrees to assist in the maintenance of the Carnegie
Free Library in accord with the provisions of Section 401 of the Library Code,
Act of June 14, 1961, P.L. 324, and at a level of financial support which,
together with the financial support given by the Connellsville Area School
District and other municipalities which comprise the Connellsville Area School
District, will ensure that the Library will be able to qualify annually for state
financial aid in accord with Section 303(1) of The Library Code, but not to
exceed an amount equal to one (1) mill of the total assessed valuation of real
estate in said City. In this connection reference is hereby made to a public
election held in or about the year 1901, and subsequent action of the Borough
Council of the then Borough of Connellsville, whereby it was authorized that

the City levy a tax of one (1) mill for the support of the said Library.

Rebecca S. Hollenbaugh and Fred K. Philburn v. Carnegie Free Library, of Connellsville, Pennsylvania, 545 F.2d 382, 3rd Cir. (1976)

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545 F.

Rebecca S. HOLLENBAUGH and Fred K. Philburn,

United States Court of Appeals,

Mary Warman Terry, Warman & Warman, Uniontown, Pa., for

516 F.2d at 1331 (footnotes omitted).

A nexus test is necessarily one of degree. As we observed in Magill, the

or absence of state action must be determined on a case-by-case basis." 516

Appellants' employment was terminated by the Board of Trustees of the

Of the 24 authorized members of the Library's Board of Trustees, 15 may be

In reaching our conclusion that there is sufficient state involvement here to

Under these circumstances, it is impossible to distinguish the state's

We emphasize, in reversing the judgment of the district court, that we do not

28 U.S.C. 1343. Civil rights and elective franchise

The resolution of the Connellsville City Council provides, in part:

Council of the then Borough of Connellsville, whereby it was authorized that

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