Nunnery v. Barber

BUTZNER, Circuit Judge

(dissenting) :

I would vacate the judgment of the district court and remand this case for trial.

While Mrs. Nunnery’s complaint is not altogether clear, there is no question that she held a patronage job without tenure. 1 She claims that she worked satisfactorily but was nevertheless discharged because she did not actively support the political party that procured her appointment. This, she charges, violated her rights of free political expression and association guaranteed by the first and fourteenth amendments.

The district court conducted no evidentiary hearing. Quoting the epigram, “Those who, figuratively speaking, live by the political sword must be prepared to die by the political sword,” 2 it held that her complaint failed to state a claim upon which relief could be granted. This court now affirms. I believe both courts have erred by grounding their decisions on Mrs. Nunnery’s lack of tenure instead of on the constitutional rights accorded her by the first and fourteenth amendments.

Mrs. Nunnery’s lack of a property interest in her job affects her right to procedural due process. Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972). It does not in itself defeat her claim that her discharge was an unlawful retaliation for her exercise of first and fourteenth amendment rights. The constitutional limitations on a state’s power to discharge a person whose employment is otherwise terminable at will are clearly explained in Perry v. Sindermann, 408 U.S. 593, 596 , 92 S.Ct. 2694, 2697 , 33 L.Ed.2d 570 (1972):

“The first question presented is whether the respondent’s lack of a contractual or tenure right to re-employment, taken alone, defeats his claim that the nonrenewal of his contract violated the First and Fourteenth Amendments. We hold that it does not. ••

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ . Such interference with constitutional rights is impermissible.

“We have applied this general principle to denials of tax exemptions unemployment benefits and welfare payments . But, most often, we have applied the principle to denials of public *1361 employment . . . We have applied the principle regardless of the public employee’s contractual or other claim to a job. .

“Thus, the respondent’s lack of a contractual or tenure ‘right’ to reemployment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the nonrenewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights . . . We reaffirm those holdings here.”

Perry thus exposes the error of dismissing Mrs. Nunnery’s suit simply because she lacked tenure. The defense of waiver is equally fallacious. Perry and its precedents teach that a state cannot condition a benefit, including a job, on the surrender, or waiver, of one’s constitutional rights. See, e. g., Torcaso v. Watkins, 367 U.S. 488, 495 , 81 S.Ct. 1680 , 6 L.Ed.2d 982 (1961); Alston v. School Board, 112 F.2d 992, 998 (4th Cir. 1940). In sum, the crux of this controversy is the nature of a public employee’s first amendment rights, not lack of tenure.

The Supreme Court has ruled that the state, as an employer, has a greater interest in regulating the speech of its employees than in regulating the speech of other citizens. This interest is confined, however, to the reasonable needs of promoting the efficiency and integrity of public service. While deference is to be paid to the public employer’s judgment, the coui’ts have a duty to weigh the state’s needs against the employee’s rights as a citizen. Pickering v. Board of Education, 391 U.S. 563, 569 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968). The balance must include both the rights which the employee seeks to exercise and the responsibilities of her job. The state’s requirements may include, for example, the need for loyal and sympathetic employees in positions of discretion, the need to ensure obedience to state policy, and the need to prevent impropriety or its appearance. See Pickering, supra, at 570 n. 3, 88 S.Ct. 1731 ; Note, Patronage Dismissals: Constitutional Limits and Political Justifications, 41 U.Chi.L.Rev. 297, 319-325 (1974). Thus, what would be impermissible speech or conduct in one position may be acceptable for an employee holding another.

When a neutral statute, such as the Hatch Act, regulates the political activity of public employees, courts defer to the legislature’s perception of the state’s interest. See, e. g., United States Civil Service Comm’n v. National Assn. of Letter Carriers, 413 U.S. 548 , 93 S.Ct. 2880 , 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973). But no West Virginia statute compels a public employee to undertake purely partisan tasks at variance with his political beliefs ; indeed, the constitutionality of such a statute would be dubious. If a state official commands partisan service under penalty of dismissal, 3 I believe he should be required to demonstrate how the state’s interest — as distinct from the party’s — will be legitimately advanced by the suppression of the employee’s first amendment rights. Illinois State Employees’ Union v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 928 , 943, 93 S.Ct. 1364 , 1370, 35 L.Ed.2d 590 , 609 (1973). Contra Alomar v. Dwyer, 447 F.2d 482 (2nd Cir. 1971), cert. denied, 404 U.S. 1020 , 92 S.Ct. 683 , 30 L.Ed.2d 667 (1972).

*1362 Therefore, I would remand the case for a trial at which Mrs. Nunnery must carry the initial burden of showing that she has been deprived of her right to free political association or speech. If the proof shows that Mrs. Nunnery’s refusal to perform party chores did not arise from principled disagreement with the ideology of the party, but, on the contrary, stemmed from mere unwillingness to exert herself, the district court should dismiss her suit. She cannot complain because her party-oriented boss prefers a party stalwart who will perform party chores over one who will not. The first amendment assures her right to freedom of speech and association, but if these rights have not been placed in jeopardy, it affords Mrs. Nunnery no protection for her job.

On the other hand, if Mrs. Nunnery’s proof establishes that her discharge resulted from her refusal to do party chores because she disagreed with the political tenets of the party, her employer must demonstrate that the state — as distinguished from the party — had a legitimate interest in her performance of these chores that outweighed her first amendment rights. If the state lacked such an interest, the district court should find for Mrs. Nunnery on this issue. This would not, as the employer argues, impose a civil service system on the state. West Virginia is not required to give any assurances of tenure which would make the job a property right. See Arnett v. Kennedy, 416 U.S. 134, 155-156 , 94 S.Ct. 1633, 1645 , 40 L.Ed.2d 15 (1974). It may discharge for other good cause despite an employee’s first amendment claim. Kirker v. Moore, 436 F.2d 423 (4th Cir. 1971). But its power to discharge cannot trench on rights secured by the first and fourteenth amendments even though the employee may otherwise be fired at will. Perry v. Sindermann, 408 U.S. 593, 596 , 93 S.Ct. 2694 , 33 L.Ed.2d 570 (1972); Shelton v. Tucker, 364 U.S. 479 , 81 S.Ct. 247 , 5 L.Ed.2d 231 (1960).

. I find it unnecessary to explore the dispute between the district court and this court over whether her duties involved making policy. That cannot be decided until after the presentation of evidence, and it is relevant only to the district court’s duty to balance the respective interests of Mrs. Nunnery and the state. •

. See Nunnery v. Barber, 365 F.Supp. 691, 695 (S.D.W.Va.1973). The quotation is from American Fed. of State, County, and Municipal Employees v. Shapp, 443 Pa. 527, 529 , 280 A.2d 375, 378 (1971).

. “AVhile criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public', employment is nonetheless a potent means of inhibiting speech.” Pickering v. Board of Education, 391 U.S. 563, 574 , 88 S.Ct. 1731, 1737 , 20 L.Ed.2d 811 (1968).