Petition — Ramey v. Harber
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IN THE ——
Supreme Court of the United States
OCTOBER TERM, 1978
No. 78-1519
CLARENCE RAMEY, JAMES BLEDSOE, DAVID
CURTIS MINTON, CHESTER FUGATE, HERSCHEL
WOODWARD, ONZA COLLIER, DANNY MOORE,
RONNIE FORTNER, JAMES HENSLEY, MURIEL
GIBBONS, JAMES HAMILTON, AND MARION
HOBBS,
Petitioners,
V.
PAUL T. HARBER, Individually, and as Sheriff of
Lee County, Virginia; COUNTY OF LEE, VIRGINIA;
AND BOARD OF SUPERVISORS OF LEE COUNTY,
VIRGINIA,
ieisiuaia ts,
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE
FOURTH CIRCUIT
WALTON D. MORRIS, JR.
BRADSHAW, MORRIS &
COPELAND, P.C.
314 Wood Avenue, East
Big Stone Gap, Virginia 24219
(703) 523-3056
Attorney for all Petitioners
7) - ‘
ee
PRESS OF BYRON S. ADAMS PRINTING, INC. WASHINGTON, D.C.
TABLE OF CONTENTS
Page
Ne ete eee seeccces 2
ES SET Te 2
QUESTIONS PRESENTED FOR REVIEW ......... 3
CONSTITUTIONAL PROVISIONS AND STATUTES
Ee 5
SPAT e OP Teme GAG... we eee 5
REASONS FOR GRANTING THE WRIT........... 10
I. THE QUESTION OF WHETHER THE
CONSTITUTION PROHIBITS
DENIAL OF CONTINUED EMPLOY-
MENT TO INCUMBENT NON-POL-
ICYMAKING, NON- CONFIDENTIAL
PUBLIC EMPLOYEES SOLELY FOR
POLITICAL REASONS HAS NOT
BEEN, BUT SHOULD BE, SETTLED
RE, Wn eS s cscs sr ccsse. 12
Il. THE QUESTION OF WHETHER
VICTIMS OF CONSTITUTIONAL
DEPRIVATION MAY BE DENIED
ALL REMEDY UPON THE RaA-
TIONALE OF RETROACTIVITY HAS
NOT BEEN, BUT SHOULD BE, SET-
TLED BY THISCOURT............. 17
Il. THE COURT OF APPEALS
MISAPPLIED THIS COURT'S
RETROACTIVITY DECISIONS AND
EXCEEDED THE PROPER SCOPE
OF APPELLATE REVIEW .......... 19
IV. THE DENIAL OF BACKPAY WAS
BASED UPON A MISTAKE OF LAW
AND EXCEEDED THE DISTRICT
COURT’S NARROW DISCRETION ... 22
OT ew
CREATION bbc ows cco eet e eee esa eee esc 23
Appendix A—Opinion of the United States
Court of Appeals for the Fourth Circuit
(December 15, 1978). ........2eeeeeeeeees la
Appendix B—Order Denying Petition for Rehear-
ing and Rehearing en Banc (February 26,
PRED Re > eA an es trans reine co ee 17a
Appendix C—Opinion of the United States
District Court for the Western District of
Virginia (April 21, 1977) ...........e sees 19a
Appendix D—Order of the United States District
Court for the Western District of Virginia
Granting Summary Judgment (November 7,
SP Serre Pee ewe rwre ee SEE . 47a
Appendix E—Constitutional Provisions and
PN co ae ks Pare h a weak kaee cee 49a
¥
INDEX TO CITATIONS
CASES: Page
Albermarle Paper Co. v. Moody, 422 U.S. 405
UR eta elec ee cies eke ne eat se 22
Alfaro de Quevedo v. de Jesus Schuck, 556 F.2d.
I NI eon Ure reg Abe be > 05d 0's 21
Barton v. City of Eustis, 415 F. Supp. 1355 (M.D.
PCO Tos aadhacenteeesr chase sGh< 21
Burns v. Elrod, 509 F.2d 1133 (7th Cir. 1975)... .. 20
Burt v. Board of Trustees of Edgefield County
School District, 421 F.2d 1201 (4th Cir. 1975). 22
Carey v. Piphus, 435 U.S. 247 (1978)............ 18
Cipriano v. Houma, 395 U.S. 701 (1969) ....... 18, 19
Coates v. City of Cincinnati, 402 U.S. 611(1971).. 16
Elrod v. Burns, 427 U.S. 347 (1976)... . 3, 4, 6, 7, 8, 12,
: 13, 14, 15, 16, 17, 20, 21
Gooding v. Wilson, 405 U.S. 518 (1972) ......... 17
Keyishian v. Board of Regents, 385 U.S. 589
tia « da ek Ga ewes ean en eees 13, 16
Lemon v. Kurtzman, 411 U.S. 192 (1973) (Lemon
Ne Ce Sn a ee eg 18, 19, 21
Monell v. Department of Social Services, 436 U.S.
i Re aa eee er ane 4,22
New York v. Cathedral Academy, 434 U.S. 125
SCs ils sawed a see Ce base sets 19, 21
Nunnery v. Barber, 503 F.2d 1349 (4th Cir. 1974),
cert. denied 420 U.S. 1005 (1975) ........... 20
Perry v. Sindermann, 408 U.S. 593 (1972)........ 13
Rivera Morales v. Benitez de Rexach, 541 F.2d
I Be ae tuk a ae os 0k 00 6 21
Roberts v. Russell, 392 U.S. 293 (1968). ......... 20
iv
Page
Rosenthal v. Rizzo, 555 F.2d 390 (8rd Cir. 1977)
cert. denied 434 U.S. 892 (1977) ...........- 21
Shelton v. Tucker, 364 U.S. 479 (1960) .......... 13
United States v. Estate of Donnelly, 397 U.S. 286
(2OUE)... . oo os wdes Sen dase eee eee 20
Wren v. Jones, 457 F.Supp. 234(S.D. Ill. 1978)... 21
STATUTES:
98 U.SC.§ 1261 .... sccaccawesneesuw eee 2
WBUBC.§ 1BS8 2... ccc cewkeuesssseeeee 8
UBC. $ 1968 . 0. i ease 7
42 U SH.§ 1668 . . Nc iendiancueneenee 5, 7,19
VA. CODE §$ 16.1-48 . .5 cccsscesss ee eeeeses 5, 16
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
No.
CLARENCE RAMEY, JAMES BLEDSOE, DAVID
CURTIS MINTON, CHESTER FUGATE, HERSCHEL
WOODWARD, ONZA COLLIER, DANNY MOORE,
RONNIE FORTNER, JAMES HENSLEY, MURIEL
GIBBONS, JAMES HAMILTON, and MARION HOBBS,
. Petitioners,
Vv.
PAUL T. HARBER, Individually, and as Sheriff of
Lee County, Virginia; COUNTY OF LEE, VIRGINIA;
AND BOARD OF SUPERVISORS OF LEE COUNTY,
VIRGINIA,
Respondents,
PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE
FOURTH CIRCUIT
Petitioners pray that a writ of certiorari issue to
review the decision of the United States Court of Ap-
2
peals for the Fourth Circuit in its cases Nos. 77-1927,
77-1928 and 78-1010 (December 15, 1978), the former
two cases entitled Ramey, et al. v. Harber, and the
latter case entitled Ramey. et al. v. County of Lee,
Virginia, et al.
REPORT OF OPINIONS
The opinion of the Court of Appeals in the consol-
idated cases described above is reported at 589 F.2d
753 (4th Cir. 1978). A copy of that opinion is appended
to this petition as Appendix A.
The opinion of the United States District Court for
the Western District of Virginia in Ramey v. Harber
is reported at 431 F. Supp. 657 (W.D. Va. 1977). A
copy of that opinion is appended to this petition as
Appendix C. The opinion of the District Court in Ra-
mey, et al. v. County of Lee, Virginia, et al., (No. 77-
0089-B, November 7, 1977) is unreported. A copy of
the order granting summary judgment to the defend-
ants (respondents here) is appended to this petition as
Appendix D.
JURISDICTION
This petition is filed pursuant to Rule 21 et seq. of
the Rules of the Supreme Court of the United States.
(i) The judgment sought to be reviewed was en-
tered on December 15, 1978 (Appendix A).
(ii) The order denying a petition for rehearing was
entered on February 26, 1979 (Appendix B.).
(iii) The jursidiction of this Court is invoked under
28 U.S.C. § 1254 (1).
3
QUESTIONS PRESENTED FOR REVIEW
1. Whether the First and Fourteenth Amend-
ments, as interpreted in Elrod v. Burns, 427 U.S. 347
(1976), prohibit state officials from denying continued
employment solely on the basis of political beliefs and
associations to deputy sheriffs whose employment is
made coterminous with their appointing sheriff's ten-
ure of office by operation of state statute.
2. Whether, under the First and Fourteenth
Amendments, state officials may refuse to continue
to employ non-policymaking, non-confidential deputy
sheriffs solely on the basis of their political beliefs
and associations, and thereby avoid the rule of Elrod
v. Burns, 427 U.S. 347 (1976), solely because there is
a statute in effect that purports to make the employ-
ment of deputy sheriffs coterminous with the incum-
bent sheriff's tenure of office, when it is undisputed
that only deputies who loyally perform public service
but whose political beliefs and associations are
deemed unacceptable to a newly elected sheriff are
denied continued employment, while those deputies
who previously quit their offices are given employ-
ment because of their acceptable political beliefs and
associations.
3. Whether, in this case involving a state statute
which purports to limit deputy sheriffs’ employment
to the appointing sheriff’s tenure of office, and which
respondents claim distinguishes this case from Elrod
v. Burns, 427 U.S. 347 (1976), the rationale of Elrod
can be ignored on the sole basis that the state action
occurred prior to the date of this Court’s decision in
Elrod, when Elrod did not address the exact question
presented in this case, and the separate opinion by
4
Mr. Justice Stewart, joined by Mr. Justice Blackmun,
concurring in the judgment, which was necessary to
this Court’s majority, refused to go beyond the pre-
cise facts of Elrod (which did not involve the kind of
statute at question in this case).
4. Whether the Court of Appeals erred in holding
that this Court’s decision in Elrod v. Burns, 427 U.S.
347 (1976), may be given no retroactive effect what-
soever in any case of uncenstitutional termination of
public employment which occurred prior to the date
of this Court’s decision in Elrod, but after certiorari
was granted, where such holding is premised upon
factual findings (a) that are unsupported by the record
and are in conflict with the District Court’s well sup-
ported findings of fact; (b) that do not purport to rest
upon a conclusion that the District Court’s findings
of fact were clearly erroneous; and (c) that result in a
reversal of the District Court without any finding of
clear error or abuse of discretion by the District Court.
5. Whether it was clear error to deny a back pay
award because of a belief that such an award would
have to be paid exclusively from the sheriff’s personal
funds rather than from public funds, when the law is
clearly at odds with such belief.
6. Whether it is permissible to deny a back pay
award to the petitioners because of a belief that such
an award would have to be paid exclusively from the
sheriff's personal finances, without considering that
public funds undoubtedly are subject to reach under
the rule of this Court’s decision in Monell v. Depart-
ment of Social Services, 436 U.S. 658 (1978).
5
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The text of the First and Fourteenth Amendments
to the Constitution, and of 42 U.S.C. § 1983 and VA.
CODE § 15.1-48 are set forth in Appendix E to this
petition.
STATEMENT OF THE CASE
Each of the petitioners was appointed either deputy
sheriff or jailer by Curtis Flanary, Sheriff of Lee Coun-
ty, Virginia from 1972-1975, pursuant to a Virginia
statute authorizing sheriffs to appoint deputies to
discharge certain duties during the sheriff's continu-
ance in office. Although the particular duties of each
petitioner varied, as a group the petitioners carried
out routine police functions, served process, acted as
court bailiffs and operated and maintained the county
jail. As both the District Court and Court of Appeals
found, the petitioners were non-policymaking, non-
confidential employees. The petitioners received the
extensive, job-related training required by the state
of all deputy sheriffs and jailers, requiring them to
travel to educational institutions located at consid-
erable distances from Lee County. The acquisition of
this special training required a substantial public in-
vestment, both in actual outlay for tuition, transpor-
tation and other educational expenses, and also in the
salaried time each petitioner was required to spend
away from his usual duties during training. Obvious-
ly, completion of the training requirements required
a personal investment by the petitioners as well.
Sheriff Flanary sought to retain his office in the
_ general election held November 4, 1975, as the can-
didate of the Republican party. Among his opponents
was Paul Harber, one of the respondents, who was
the candidate of the Democratic Party. Each of the
6
petitioners actively supported Flanary’s candidacy,
while certain other Flanary deputies resigned and sup-
ported Harber. Paul Harber prevailed over Sheriff
Flanary in the election, and assumed office on Janu-
ary 1, 1976.
Because of the training they had undergone, and
their view that it was a disservice to incumbent de-
puties as well as to the public to terminate deputy
sheriffs solely because of their political beliefs and
associations, and because they believed their termi-
nation would be unconstitutional (this Court had
granted review in Elrod v. Burns, 427 U.S. 347 (1976),
on October 5, 1975), the petitioners inquired about
the possibility of continued employment under Sheriff
Harber on several occasions between the election and
Harber’s assumption of office. The earlier inquiries
were made to Sheriff Harber by certain individual
petitioners. One of the petitioners was told to file an
application for the position he currently held or that
his employment would not be continued. Another was
invited to file an application, but was informed that
it would not be acted upon favorably. Finally, on the
last day of their employment, the petitioners met with
Sheriff Harber as a group to inform him of their in-
terest in continued employment, and to request that
they be allowed to remain on the job. Sheriff Harber
rebuffed the petitioners, at one point threatening
them with violence. The petitioners peaceably left of-
fice when required to do so. Sheriff Harber thereafter
appointed as his own deputies some of the petitioners’
former colleagues who had supported Harber and had
switched parties after abandoning their positions as
deputies.
Upon advice of counsel, the petitioners immediately
pursued administrative redress, without effect, but
7
deferred commencement of litigation pending the
Court’s disposition of Elrod v. Burns, supra. After
announcement of the Court’s decision in the Elrod
case, the petitioners filed a civil action against Sheriff
Harber in the United States District Court for the
Western District of Virginia. The complaint was
grounded upon 42 U.S.C.§ 1983, and jurisdiction was
invoked under 28 U.S.C. § 1343. The petitioners al-
leged that Sheriff Harber’s refusal to continue their
employment deprived them of their freedoms of polit-
ical belief and association, and thus violated their
rights under the First and Fourteenth Amendments.
At trial the District Court empanelled an advisory
jury which returned special verdicts to the effect that
each of the petitioners had been satisfactorily per-
forming the duties required of him in his non-policy-
making, non-confidential position at the time of his
termination from employment. The advisory jury fur-
ther found to the effect that each petitioner had been
denied continued employment solely on the ground of
his political beliefs and affiliations, and that Sheriff
Harber had not acted in good faith in denying contin-
ued employment to the petitioners.
The District Court «lopted the special verdicts of
the advisory jury as its own findings of fact, and held
that Sheriff Harber had acted unlawfully in denying
continued employment to the petitioners. The District
Court considered that the constitutional violations in
this case occurred prior to this Court’s decision in
Elrod v. Burns, supra, and, therefore, devised a re-
medial scheme which reinstated the petitioners in
their former employment and granted them attor-
ney’s fees, but denied them back pay, as well as dec-
laratory and other monetary relief. The District Court
denied back pay because of a stated belief that such
8
an award would have to be satisfied out of Sheriff
Harber’s personal finances, despite the fact that he
had been sued ifyhis official capacity. Sheriff Harber
filed notice of appeal, and the petitioners filed notice
of cross-appeal. Pursuant to the order of the District
Court, petitioners resumed their employment on June
1, 1976.
Soon after the District Court rendered the opinion
described above, the petitioners filed an action in the
District Court against the respondents other than
Sheriff Harber. The second action was brought under
the Fourteenth Amendment directly, with jurisdiction
invoked under 28 U.S.C. § 1331. The allegations of
the second complaint were similar to those of the first;
the object of the suit was to obtain back pay free from
the District Court’s concern for imposing financial
burden upon Sheriff Harber individually. Neverthe-
less, the District Court entered summary judgment
for the respondents upon the same rationale stated in
its earlier opinion. The petitioners duly filed notice of
appeal. The first and second actions were consolidated
before the Court of Appeals.
The Court of Appeals for the Fourth Circuit re-
versed the District Court’s grant of relief to the pe-
titioners, holding that this Court’s ruling in Elrod v.
Burns, supra, is not to be retroactively applied to
grant any relief whatsoever for wrongful termination
of employment which occurred: prior to the date of
decision in Elrod. The majority of the panel intimated
that the express limitation of deputies’ employment
contained in the Virginia statute authorizing their
appointment, as well as its own impression of the
nature of the sheriff-deputy relationship and the an-
tagonism it perceived to exist between Sheriff Harber
9
and the petitioners, were material distinctions from
the facts before this Court in Elrod. Nevertheless, the
majority of the panel chose to ignore the important
question of whether the First and Fourteenth Amend-
ments prohibit denial of continued employment (as
well as discharge) solely for political reasons, and in-
stead ruled only that if Elrod did apply to the facts of
this case (a question it expressly failed to decide), no
relief could be granted whatsoever because the state
action in question took place prior to the date of this
Court’s decision. The majority of the panel rested this
ruling upon its conclusion that retroactive application
of Elrod would prove chaotic for local governments
and would require the layoff of presently employed
deputies, despite the fact that the petitioners had
been reinstated for more than eighteen months, which
indicates such hardships are not present in this case.
The majority of the panel apparently did not consider
the availability of such remedies as preferential hir-
ing, which could not have a disruptive effect on local
governments or their personnel. The majority of the
panel ended its opinion by offering Sheriff Harber the
opportunity to discharge all currently reinstated pe-
titioners—an act otherwise clearly prohibited by El-
rod.
Circuit Judge Hall filed an opinion concurring in
the result which pointed out the majority’s error in
reaching the question of Elrod’s retroactivity without
first deciding whether the facts of this case present a
separate question from the one decided in Elrod.
Judge Hall emphasized four factors in distinguishing
this case from Elrod: the limitation of employment in
the Virginia statute; the active nature of the petition-
ers’ campaigning for Flanary; his own impression
10
that, de: ite the hiring of former Flanary deputies
who had supported Harber, the petitioners were not
pressured to contribute to or join Harber’s political
party; and the small size of the Lee County Sheriff's
Department.
Because the Court of Appeals decided that any re-
lief would be inappropriate in this case, it had no
occasion to consider whether the District Court's ra-
tionale in denying back pay ignored the holdings of
this Court, the Fourth Circuit itself, and various other
Circuit Courts of Appeals. The petitioners’ request
for rehearing and rehearing en banc were denied.
REASONS FOR GRANTING THE WRIT
There are four important reasons for granting a
writ of certiorari to review the Court of Appeals’ de-
cision in these cases:
First, the Court of Appeals raised, but failed to
resolve, the threshold question of whether the First
and Fourteenth Amendments prohibit the denial of
continued employment to (as well as the discharge of)
non-policymaking, non-confidential public employees
solely because of such employees’ political beliefs and
associations The resolution of this important ques-
tion of Federal constitutional law, which has not been
but should be settled by this Court, is necessary be-
fore the retroactivity question decided by the Court
of Appeals ever arises.
Second, the Court of Appeals has decided the im-
portant question of whether all remedies, even nomi-
nal damages and purely prospective equitable relief,
may be denied to those deprived of their constitution-
al rights whenever the relevant state action occurs
11
prior to the date of this Court’s first pronouncement
that the state action complained of violates the Con-
stitution. The Court of Appeals has decided the ques-
tion in a manner which can have major impact on the
ability of courts to fully protect the constitutional
rights of the citizenry. In deciding that even nominal
damages and those remedies which operate prospec-
tively must be denied in at least some instances, the
Court of Appeals has decided a question of great im-
port which has not been, but should be, settled by
this Court.
Third, the Court of Appeals based its decision
upon its own findings of fact, which are not supported
by the record and are in conflict with the District
Court’s carefully considered findings. Based upon its
own findings, the Court of Appeals reversed the judg-
ment of the District Court without a finding of clear
error or abuse. of discretion. In ignoring well estab-
lished standards of appellate review, the Court of Ap-
peals is in conflict with the decisions of this Court,
and has so far departed from the accepted and usual
course of judicial proceedings as to call for an exercise
of this Court’s power of supervision.
Fourth, in denying back pay to the petitioners, the
courts below decided an important question of Federal
constitutional law in a manner in conflict with the
applicable decisions of this Court, and in conflict with
the decisions of the Courts of Appeals on the same
matter.
12
I. The Question Of Whether The Constitution
Prohibits Denial Of Continued Employment
To Incumbent Non-Policymaking, Non-Confi-
dential Public Employees Solely For Political
Reasons Has Not Been, But Should Be, Settled
By This Court.
This Court decided in Elrod v. Burns, 427 U.S. 347
(1976), that a non-policymaking, non-confidential gov-
ernment employee cannot be discharged or threatened
with discharge from a job that he is satisfactorily
performing upon the sole ground of his political be-
liefs. Jd. at 375. (Opinion of Mr. Justice Stewart
concurring in the judgment). This case presents a re-
lated question which this Court expressly did not de-
cide in Elrod: whether a state official’s refusal to con-
tinue the employment of his predecessor’s deputies
solely on the,ground of their political beliefs and as-
sociations is similarly prohibited by the First and
Fourteenth Amendments. The separate question aris-
es in this case because the Virginia statute authoriz-
ing the appointment of deputies by certain officials
provides that deputies serve only during their ap-
pointing official’s continuance in office. Because of
this statutory scheme, Sheriff Harber, instead of ac-
tually discharging the petitioners, had only to refuse
to consider them for reappointment in his administra-
tion and allow the Virginia statute to take its toll.
Both the District Court and Court of Appeals rec-
ognized this distinction from the facts in Elrod. The
District Court was of the opinion that the distinction
was immaterial, at least to the result in this case. The
Court of Appeals intimated that the distinction was
in fact material, but inexplicably failed to decide the
13
novel question it perceived, disposing of the litigation
by holding Elrod v. Burns, supra, entirely non-retro-
active.
The petitioners contend that the question presented
here is indeed a novel one, unaffected by the issue of
retroactive application of Elrod v. Burns. The peti-
tioners submit that the question should be settled by
this Court to protect the important First Amendment
rights involved, and also to save this Court’s holding
in Elrod from being undercut and ignored by any state
which wishes to limit its employees’ First Amend-
ment protection through enactment of a statute sim-
ilar to Virginia’s. Of equal importance, the question
presented in this case should be settled by this Court
to eliminate the deterrence of public employees’ ex-
ercise of First Amendment political freedoms which
flows from the Court of Appeals’ failure to define the
constitutional protection available to those faced with
denial of continued government employment.
A. The Constitution prohibits the denial of
continued employment to incumbent non-
policymaking, non-confidential public
employees solely on the basis of their po-
litical beliefs and associations.
’ The principle that the First and Fourteenth Amend-
ments prohibit state officials from denying continued
employment to non-tenured public employees solely
on the basis of such employees’ political beliefs and
associations has been uniformly recognized by this
Court for nearly two decades in cases involving school
teachers. Shelton v. Tucker, 364 U.S. 479 (1960); Key-
ishian v. Board of Regents, 385 U.S. 589 (1967); Perry
v. Sindermann, 408 U.S. 593 (1972). The petitioner’s
14
predicament here parallels in every material respect
the teachers’ situations in the Court’s earlier cases.
Neither the petitioners nor the teachers had an objec-
tive expectancy of continued employment beyond the
fixed date on which their contracts or appointments
expired. The petitioners and the teachers alike could
have been denied continued employment for almost
any reason, or for nor reason at all. However, in the
same fashion that denial of contract renewal to teach-
ers on the basis of their political beliefs and associa-
tions deprives them of constitutional rights, Sheriff
Harber’s refusal to reappoint the petitioners infringed
their political freedom.
Even apart from this Court’s earlier decisions, it is
obvious that the same infringements of First Amend-
ment rights which underlie this Court’s decision in
Elrod v. Burns, supra, are equally present here. The
record in this case clearly demonstrates, contrary to
the suggestion of the Court of Appeals, that Sheriff
Harber’s actions put pressure on the petitioners to
switch political allegiances, albeit indirectly, by hiring
their former colleagues who had switched parties. And
the free functioning of the electoral process is just as
surely inhibited by refusals to continue the employ-
ment of competent incumbent employees as it is by
their discharge. In both instances, an employee is not
free to follow the dictates of conscience unless he risks
his livelihood to do so.
Similarly, governmental interests are no more com-
pelling where a non-policymaking, non-confidential
government employee is denied continued employ-
ment than where he is discharged. Sheriff Harber’s
interest in appointing new deputies to fill positions
technically made vacant by operation of statute is
~
15
clearly no greater than Sheriff Elrod’s interest in fill-
ing positions made vacant by the practice of discharg-
ing his predecessor’s employees pursuant to age-old
custom.
In sum, because the petitioners here assert no lesser
constitutional interest in continued employment than
did the deputies in Elrod, and because no greater
counterveiling governmental interest is present, the
balancing of such interests clearly favors these de-
puties also.
The important nature of the petitioners’ claim to
continued employment free from political manipula-
tion is emphasized by the fact that unless their claim
prevails, this Court’s decision in Elrod v. Burns, su-
pra, will be undermined to such an extent that it will
lose all practical effect. Adoption of a contrary rule
on these facts would authorize any state to simply
enact a statute limiting the duration of public em-
ployees’ service to their appointing official’s term of
office, thereby depriving public employees of the First
Amendment freedoms secured in Elrod.Thus, a hold-
ing in this case contrary to that in Elrod would grant
a license to the states to ignore Elrod altogether, and
would impair not only the significant policy and con-
stitutional law embodied in Elrod, but also the proper
deference which the various states must afford Fed-
eral constitutional guarantees and the decisions of
this Court. Moreover, the free exercise of First
Amendment rights by public employees would cer-
tainly be chilled if this Court’s decisions protecting
those right proved so ephemeral.
16
B. This Court should settle the question at
hand to relieve the impairment of First
Amendment rights caused by the Court
of Appeals’ decision.
The Court of Appeals clearly recognized that the
facts of this case present a separate and distinct ques-
tion from the one decided by this Court in Elrod v.
Burns, supra. Nevertheless, after intimating that an
opposite result might be reached on the novel ques-
tion presented here, the Court of Appeals proceeded
to assume arguendo that this case in fact presented
the identical question decided in Elrod, and thereupon
rendered its decision asserting Elrod’s nonretroactiv-
ity. By disposing of the case in such a fashion, the
Court of Appeals has unquestionably cast doubt upon
the ability of public employees to exercise political
freedoms without risking their jobs. Unless this Court
settles the question, thousands of public employees
will certainly believe it more advisable to acquiesce in
the demands for political support placed upon them
by present or future employers than to adhere to con-
science and risk their livelihood in the face of the
Court of Appeals’ muffled suggestion that adherence
to conscience may cost them their jobs.' |
This Court has time and again held unconstitu-
tional those statutes, ordinances and regulations
which impair the effective exercise of First Amend-
ment rights. Keyishian v. Board of Regents, 385 U.S.
589 (1967); Coates v. City of Cincinnati, 402 U.S. 611
‘There has been no material change in the language of VA.
CODE § 15.1-48 since this Court's announcement of its decision
in Elrod v. Burns, supra. The provision presently affects the jobs
of all deputies of every constitutional officer in Virginia (see
Appendix E, p. }.
17
(1971); Gooding v. Wilson, 405 U.S. 518 (1972). No
less urgently does the stifling effect of the uncertainty
fostered by the Court of Appeals’ decision call for
review by this Court.
Il. The Question Of Whether Victims Of Consti-
tutional Deprivation May Be Denied All Rem-
edy Upon The Rationale Of Retroactivity
Has Not Been, But Should Be, Settled By
This Court.
The Court of Appeals, without deciding that this
case falls within the ambit of Elrod v. Burns, supra,
nevertheless reversed the District Court’s grant of
reinstatement and attorney’s fees upon its view that
Elrod may not be applied in any manner whatsoever
to remedy terminations of employment which oc-
curred prior to the Elrod decision. Assuming for ar-
gument’s sake that this case does present the ques-
tion of Elrod’s retroactivity, the Court of Appeals’
decision to deny the petitioners even purely prospec-
tive relief is an unprecedented misuse of an equitable
doctrine to relieve wrongdoers of all the consequences
of their misdeeds. Because the Court of Appeals’ de-
cision may well handicap the federal courts in fully
and fairly securing constitutional guarantees to the
people, and because the decision may curtail the free
exercise of constitutional rights, this Court should
grant review. As submitted in the later argument, the
Court of Appeals’ misapplication of this Court’s re-
troactivity decisions and its disregard for the appro-
priate scope of appellate review also argue strongly
for review by this Court.
The petitioners recognize the principle that new
pronouncements of constitutional law may be restrict-
18
ed in their retroactive effect whenever their applica-
tion to settled transactions will prove unduly disrup-
tive or work substantial hardship. Cipriano v. Houma,
395 U.S. 701 (1969). Certainly, even a decision under
the First Amendment may be restricted from disturb-
ing transactions finalized before the date of that de-
cision, if the District Court in its sound discretion
deems such retroactive relief inequitable. Lemon v.
Kurtzman, 411 U.S. 192 (1973) (Lemon J).
The Court of Appeals’ decision, however, is unique
in that it prohibits all relief, even prospectively fo-
cused relief which clearly does not disturb the status
quo.? The Court of Appeals obviously misperceived
the issue of Elrod’s retroactivity as one touching upon
the basic liability of state officials, rather than the
appropriate remedy for concededly unconstitutional
actions. This approach to the retroactive effect of con-
stitutional decisions is a marked departure from this
Court’s earlier cases, which authorize the denial of
only those forms of relief which, in the discretion of
the District Court involved, unfairly upset past trans-
actions settled in reliance upon statute or prior rulings
of the courts. Here the Court of Appeals has vacated
a grant of reinstatement which had been carried out
more than eighteen months earlier, solely upon the
ground that such reinstatement in future cases might
cause hardship. And the Court of Appeals gave no
consideration to forms of equitable relief which, if
granted, would clearly not cause the hardships which
that court feared.
Unless overturned, the Court of Appeals’ harsh and
inflexible use of retroactivity doctrine to deny all re-
? The Court of Appeals’ decision left no room for even an award
of nominal damages to the petitioners, despite the clear propriety
of such basic relief under Carey v. Piphus, 435 U.S. 247 (1978).
19
lief to victims of official misconduct will serve as a
deterrent to the courts in giving full effect to the
Congressional policy of granting remedy for, and
thereby deterring, deprivation of constitutional rights
by state officials. The denial of all remedy to those
exercising their rights in ways not yet explicitly sanc-
tioned by this Court’s decisions will restrict the will-
ingness of citizens to engage in the full exercise of
their rights. Perhaps more ominously, misuse of this
Court’s retroactivity decisions to insulate public of-
ficials from liability for abuses not yet specifically
condemned by this Court will remove any deterrent
to misdeeds that might be found in 42 U.S.C. § 1983.
III. The Court Of Appeals Misapplied This
Court’s Retroactivity Decisions And Ex-
ceeded The Proper Scope Of Appellate Re-
view.
This Court has repeatedly identified the test gov-
erning the grant or denial of retroactive effect to new
constitutional decisions as a balancing of the benefits
to be gained by retroactive application of the new rule
against the potential hardship which such application
might cause. Cipriano v. Houma, supra; Lemon v.
Kurtzman, (Lemon II), supra; New York v. Cathedral:
Academy, 434 U.S. 125 (1977). The test is triggered
only by a litigant’s justified reliance upon a presump-
tively valid statute or a prior decision of the courts.
This Court’s decisions establish that the proper bal-
ance of the relevant interests is to be struck by the
District Court acting within its sound discretion, and
that appellate review is to be narrowly confined to the
question of whether that discretion has been abused.
Lemon v. Kurtzman, supra; New York v. Cathedral
Academy, supra.
20
In aclear break with this Court’s previous decisions
[see Roberts v. Russell, 392 U.S. 293 (1968) and
United States v. Estate of Donnelly, 397 U.S. 286
(1970)], the Court of Appeals found that the respond-
ents’ claimed reliance upon Nunnery v. Barber, 503
F.2d 1349 (4th Cir. 1974), cert. denied 420 U.S. 1005
(1975), was justifiable reliance sufficient to raise con-
cern about the retroactivity of Elrod v. Burns, supra,
despite the fact that Elrod was clearly foreshadowed,
and despite the fact that the application to deputy
sheriffs of Nunnery (which involved an alcoholic bev-
erage official) had been expressly rejected in Burns v.
Elrod, 509 F.2d 1133 (7th Cir. 1975). Based upon its
conclusion that the respondents justifiably relied on
Nunnery, the Court of Appeals proceeded to conclude
that Elrod’s purposes could not be appreciably ad-
vanced by retroactive application. By failing to ini-
tially decide whether the First and Fourteenth
Amendments were violated, the Court of Appeals
thus engaged in a balancing test without determining
the strength of the petitioners’ interest. It is precisely
because the decision whether to grant or deny retro-
active effect depends in large measure upon the nature
of constitutional violation that this Court tradition-
ally has decided the underlying constitutional ques-
tion first. The Court of Appeals then assumed, wholly
without support in the record, that retroactive appli-
cation of Elrod would implicate thousands of patron-
age appointments in Virginia and the Fourth Circuit.
In reaching this conclusion, the Court of Appeals re-
jected the District Court’s cogent observation that
the operation of the statute of limitations would amel-
iorate this problem. Based upon its conclusion that
the reinstatement of hypothetical plaintiffs to the
“thousands” of positions affected would disrupt the
21
functioning of government agencies and cost present
employees their jobs, the Court of Appeals reversed
the District Court without finding an abuse of discre-
tion or clear error.
The Court of Appeals’ provincial approach to the
retroactivity of Elrod v. Burns, supra, unless re-
versed, will result in a patchwork application of Elrod
in light of the Seventh Circuit’s long line of cases
protecting public employees’ First Amendment
rights. [See Wren v. Jones, 457 F.Supp. 234 (S. D. IIl.
1978]. Moreover, the Court of Appeals’ holding that
Elrod may not be retroactively applied is at odds with
the retroactive application of Elrod in the First, Third
and Fifth Circuits. Rivera Morales v. Benitez de Rex-
ach, 541 F. 2d 882 (1st Cir. 1976); Alfaro de Quevedo
v. de Jesus Schuck, 556 F. 2d 591 (lst Cir. 1977);
Rosenthal v. Rizzo, 555 F.2d 390 (3rd Cir. 1977) cert.
denied 434 U.S. 892 (1977); Barton v. City of Eustis,
415 F.Supp. 1355 (M.D. Fla. 1976). Although the issue
of retroactivity is not discussed in any of the above
-cases, those courts’ unequivocal application of Elrod
to claims arising as early as 1973 raises a strong
likelihood of future conflict among the various Courts
of Appeals which only this Court could resolve.
The Court of Appeals’ reversal of the District Court
ignores this Court’s holding in New York v. Cathedral
Academy, supra, that the discretion of the District
Court in determining whether to grant or deny ret-
roactive effect is to be reversed only upon a finding
of abuse of discretion. In that case this Court affirmed
retroactive relief granted by the District Court to
prohibit the same type of disbursements to religious
schools which were saved from retroactive prohibition
‘ by the District Court in Lemon v. Kurtzman (Lemon
22
II), supra. In affirming opposite results in the two
cases, this Court emphasized the breadth of the Dis-
trict Court’s discretion in striking the relevant bal-
ance of interests. In this case, the Court of Appeals
abandoned the proper scope of its review and imper-
missibly supplanted the District Court’s well-founded
exercise of discretion with its own factually unsup-
ported assessment of the equities.
IV. The Denial Of Backpay Was Based Upon A
Mistake Of Law And Exceeded The District
Court’s Narrow Discretion.
Backpay was denied to the petitioners because of
the District Court’s clearly erroneous belief that such
an award, if granted, would have to be satisfied out
of Sheriff Harber’s personal finances. In the context
of the factual finding that Sheriff Harber did not act
in good faith, the denial of back pay was clearly an
abuse of discretion. Albemarle Paper Company v.
Moody, 422 U.S. 405 (1975). Even aside from the issue
of Harber’s bad faith, the District Court’s belief that
back pay would have to be paid by Sheriff Harber
personally is clearly at odds with the overwhelming,
if not unanimous, weight of authority. See Burt v.
Board of Trustees of Edgefield County School
District, 421 F.2d 1201 (4th Cir. 1975). Furthermore,
this Court’s decision in Monell v. Department of
Social Services, 436 U.S. 658 (1978) renders the Dis-
trict Court’s concern for the viability of Sheriff Har-
ber’s personal finances clearly erroneous.’ Although
‘The Court of Appeals did not rule upon the effect of Monell
on Ramey v. Harper, nor upon the propriety of remanding Ramey
v. County of Lee, Virginia (which was brought directly under the
Fourteenth Amendment) with leave to amend in light of Monell.
°
23
the Court of Appeals did not address the back pay
issue because of its view that all relief should be den-
ied, the petitioners submit that this Court should cor-
rect the clear error underlying the denial of back pay
as part of its review of the Court of Appeals’ decision.
CONCLUSION
For the reasons stated herin, a writ of certiorari
should be granted to review the decisions of the Court
of Appeals.
Respectfully submitted,
WALTON D. MORRIS, JR.
BRADSHAW, MORRIS &
COPELAND, P.C.
314 Wood Avenue, East
Big Stone Gap, Virginia 24219
(703) 523-3056
APPENDIX
la
APPENDIX A
United States Court of Appeals
FOR THE FOURTH CIRCUIT
No. 77-1927
Clarence Ramey, James Bledsoe, David Curtis
Minton, Chester Fugate, Herschel Woodward, Onza
Collier, Danny Moore, Ronnie Fortner, James
Hensley, Muriel Gibbons, James Hamilton, Marion
Hobbs,
Appellees,
v.
Paul T. Harber, individually and as Sheriff of Lee
County,
Appellant,
and
Board of Supervisors of Lee County, W. Quentin
Littrell, Individually and as member, Roy Lucas,
Individually and as member, Ralph Robinette,
Individually and as member, C. B. Waddell,
Individually and as member, J. K. Newman,
Individually and as member, Bill Jessee,
Individually and as member, W. R. Hines,
Individually and as member, A. T. Burchette,
Individually and as member,
Defendants.
2a
No. 77-1928
Clarence Ramey, James Bledsoe, David Curtis
Minton, Chester Fugate, Herschel Woodward, Onza
Collier, Danny Moore, Ronnie Fortner, James
Hensley, Muriel Gibbons, James Hamilton, Marion
Hobbs,
Appellants,
v.
Paul T. Harber, individually and as Sheriff of Lee
County, Board of Supervisors of Lee County, W.
Quentin Littrell, Individually and as member, Roy
Lucas, Individually and as board member, Ralph
Robinette, Individually and as member, C. B.
Waddell, Individually and as member, J. K.
Newman, Individually and as member, Bill Jessee,
Individually and as member, W. R. Hines,
Individually and as member, A. T. Burchette,
Individually and as member,
Appellees.
No. 78-1010
Clarence Ramey; James Bledsoe; David Curtis
Minton; Chester Fugate; Onza Collier; Danny Moore;
James Hensley; Muriel Gibbons; James Hamilton,
Appellants,
v.
County of Lee Virginia; Board of Supervisors of Lee
County, Virginia; W. Quentin Littrell; Roy Lucas;
Ralph Robinette; C. B. Waddell; J. K. Newman; Bill
Jessee; Jack Lee; A. T. Burchette; W. R. Hines,
Appellees.
eo iat or ens
3a
Appeals from the United States District Court for
the Western District of Virginia, at Roanoke. James
C. Turk, Chief Judge.
Argued October 4, 1978. Decided December 15, 1978.
Before HAYNSWORTH, Chief Judge, COWEN*,
Senior Judge, and HALL, Circuit Judge.
Walton D. Morris, Jr. and Gary S. Bradshaw (Brad-
shaw and Morris, Ltd. on brief) for Appellants; Edgar
Bacon, Larry Lewis, James P. Jones and Stephen M.
Hodges (Penn, Stuart, Eskridge & Jones on brief) for
Appellees.
COWEN, Senior Judge:
The appellants, hereinafter the deputies or plaintiffs,
held positions as deputy sheriffs in Lee County, Virginia,
until December 31, 1975. Deputy sheriffs in Lee County
are non-confidential, non-policymaking public employees.
The plaintiffs were appointed as deputy sheriffs by Curtis
H. Flanary, a Republican who was elected sheriff in the
general election of November 1971. His term was 4 years
and he held that office from January 1, 1972 through De-
cember 31, 1975. Under the Virginia statute (section 15.1-
48 of the Code of Virginia, 1950, as amended), the deputies
*Wilson Cowen, Senior Judge of the Court of Claims, sitting by
designation.
4a
of Virginia sheriffs hold office only during the term of the
sheriff who appointed them. Pursuant to that statute and
in accordance with the custom that had prevailed for dec-
ades in Lee County and many other small counties in Vir-
ginia, Mr. Fianary hired an entirely new set of deputies,
retaining none oi those who had served under his prede-
cessor, a Democrat.
In the general election of November 1975, Mr. Flanary
was opposed by the appellee, Paul T. Harber, hereinafter
Sheriff Harber or defendant, who ran as a candidate of the
Democratic party. Lee County has a history of spirited
partisan political battles, and the two major parties have
been almost equally strong over the years.
Sheriff Harber won the election, and a part of his plan
to assume office on January 1, 1976, he issued application
forms to all individuals who indicated an interest in the
position of deputy sheriff. Only one of the plaintiffs made
a formal application. All of the outgoing deputies had ac-
tively campaigned for the incumbent Flanary. Most of the
plaintiffs had expressed an active interest in the status of
their jobs. This resulted in some friction between the de-
puties and Sheriff-elect Harber, who informed them that
their status was solely the concern of their principal, Sher-
iff Flanary, and that their continued employment was not
a matter for Harber’s comment. None of the plaintiffs was
reappointed by Sheriff Harber. He refused to reappoint
them solely because of their political beliefs and affilia-
tions.
On June 28, 1976, 6 months after Sheriff Harber took
office, the Supreme Court announced its decision in Elrod
v. Burns, 427 U.S. 347 (1976), which held that the dis-
charge of a non-confidential, non-policymaking employee
under a patronage system was a violation of the Consti-
tution. A few months later, in September 1976, the ten
Republican deputies of former Sheriff Flanary filed this
suit, alleging tht Sheriff Harber’s course of conduct oper-
5a
ated to deprive them of rights guaranteed under the First
and Fourteenth Amendments to the Constitution. The
original action was brought pursuant to 42 U.S.C. §§ 1983,
1985, 1986 and 1988. They sought injunctive and decla-
ratory relief, permanent reinstatement in their former po-
sitions, back pay, attorneys’ fees, and costs. The district
court denied a preliminary injunction, but granted an ex-
pedited trail.
The district court dismissed the action as to the govern-
ing body of Lee County which had been joined in the suit
against Sheriff Harber. However, in an opinion filed April
21, 1977,' the district court, relying on Elrod v. Burns,
supra, held that the consitutional rights of the deputies
had been violated and directed Sheriff Harber to reinstate
and hire the deputies as his own, and to pay attorneys’
fees of $15,000. The district court also found that Sheriff
Harber had relied on existing law and custom in all of his
actions and so declined to award the deputies backpay.
After an appeal had been noted by both parties, the
deputies filed a second action aginst Lee County and its
governing body, seeking payment from the County Treas-
ury of back pay. The district court granted summary judg-
ment, holding that the deputies had no claim against the
county or its governing body.
In their appeal, the deputies claim they are entitled to
an award of back pay, plus punitive damages, against
Sheriff Harber, as well as relief against the County of Lee,
its Board of Supervisors and members of that Board. The
deputies also contend that the district court should have
entered a declaratory judgment that section 15.1-48 of the
Code of Virginia is unconstitutional.
We disagree with the district court’s holding that Elrod
v. Burns, supra, should be applied retroactively in this
case, and reverse that part of the court’s decision which
' Ramey v. Harber, 431 F. Supp. 657 (W.D. Va. 1977).
6a
reinstated plaintiffs and awarded attorneys fees of $15,000
and taxable costs to them.
I. The applicability of Elrod v. Burns
In his first challenge to the district court’s decision,
Sheriff Harber makes a fairly persuasive argument that
Elrod v. Burns has no application in this case on the
ground that the facts upon which the Supreme Court based
its decision are materially different from those presented
here. In Elrod the deputies, who held indefinite terms of
appointment, were discharged or threatened with dis-
charge solely because ‘‘they did not support and were not
members of the Democratic Party and had failed to obtain
the sponsorship of one of its leaders.’’ The Elrod plurality
also found that in order to hold their jobs, the deputies
were required to ‘‘pledge their political allegiance to the
Democratic party, work for the election of other candidates
of the party, contribute a portion of their wages to the
party or obtain the sponsorship of a member of the party,
usually at the price of one of the first three alternatives.’’
[427 U.S. at 355.] ,
The factual situation before us is dissimilar in several
significant respects. Section 15.1-48 of the Code of Virginia
(1950 as amended) pursuant to which plaintiffs had been
appointed provides as follows:
§ 15.1-48. Appointment of deputies; their powers;
how removed. —
The treasurer of any county or city, the sheriff of any
county or city, any commissioner of the revenue, any
county clerk and the clerk or any circuit or city court
may at the time he qualifies as provided in § 15.1-38
or thereafter appoint one or more deputies, who may .
discharge any of the official duties of their principal
during his continuance in office, unless it be some
duty the performance of which by a deputy is express-
ly forbidden by law. The officer making any such
appointment shall certify the same to the court in the
7a
clerk's office of which the oath of the principal of such
deputy is filed and a record thereof shall be entered
in the order book of such court. Any such deputy at
the time his principal qualifies as provided in § 15.1-
38 or thereafter, and before entering upon the duties
of his office, shall take and prescribe the oath now
proided for county officers. The oath shall be filed
with the clerk of the court in whose office the oath of
his principal is filed and such clerk shall properly label
and file all such oaths in his office for preservation.
Any such deputy may be removed from office by his
principal. Such deputy may also be removed by the
court as provided by § 15.1-63.
As the district court found, this statute contains the
only authority for the appointment of deputy sheriffs and
under its provisions the terms of the deputies in Virginia
end with the term of their principal. Farmers’ Bank of
Southwest Virginia v. McGavock, 119 Va. 510, 89 S.E. 949
(1916). In the event Sheriff Harber had wished to retain
the plaintiffs as deputies, the district court correctly found
that they would have had to requalify and to take and
prescribe the appointment oath. All of the plaintiffs were
familiar wih section 15.1-48 and knew that their appoint-
ments terminated with the expiration of Sheriff Flanary’s
term. They also were aware of the practice which had
prevailed for many decades in Lee County and the other
small counties under which a change in the political party
controlling the sheriff's office is generally followed by a
complete change of personnel in the deputy positions. The
district court found that such a housecleaning ‘‘has long
been considered permissible under the applicable Virginia
law.”’ Sheriff Harber made no demand on the plaintiffs
that they change their political affiliations as a condition
to reappointment. Both he and they were well aware of the
fact that their jobs ended with Sheriff Flanary’s term.
Sheriff Harber refused to consider plaintiffs for reappoint-
ment, because they had actively opposed his election and
because of his reliance on the Virginia statute and upon
the practice which his predecessors had followed for a very
long time.
8a
In this connection, we take notice of the intimate rela-
tionship that undoubtedly exists between the sheriff and
his deputies in a small county like Lee County, Virginia.
The efficient operation of the sheriff's office in Lee County
requires a high degree of mutual cooperation, confidence
and support. None of these elements is likely to-be present
where the parties are bitter political antagonists. By con-
trast, the relationship between the sheriff and his deputies
in the large Cook County, Illinois office is likely to be far
more impersonal. There is no showing that the deputies in
Elrod took an active part in the campaign against the
sheriff. They were discharged because they had generally
failed to support the Democratic candidates and the Dem-
ocratic party. While their lack of party support could cre-
ate some antipathy between them and the newly elected
Democratic sheriff of Cook County, the existence of such
antagonism is far from inevitable. However, in this case,
the existence of deep antagonism—even animosity—was
almost inevitable as a result of the active efforts which
plaintiffs made to defeat Sheriff Harber. The record re-
flects the evidence of this animosity in the friction that
arose between plaintiffs and Sheriff Harber when they
expressed an interest in the status of their jobs before the
sheriff assumed the duties of his office on January 1, 1976.
In Elrod, the Supreme Court split into a three-justice
plurality, a two-justice concurrence, and a three-justice
dissent. The factual distinctions discussed above raise a
question as to the applicability of Elrod in view of the fact
that the concurrence of Justices Stewart and Blackman in
the plurality opinion explicitly limited the Court’s holding
to patronage dismissals.? As one commentator has ob-
? In his concurring opinion, Justice Steward stated: ‘The single
substantive question involved in this case is whether a non-pol-
icymaking, non-confidential government employee can be dis-
charged or threatened with discharge from a job that he is sat-
isfactorily performing upon the sole ground of his political be-
liefs. I agree with the plurality that he cannot.’’ [427 U.S. at
375.]
—————
9a
served, ‘‘the narrow position of the concurrence must be
taken as the holding of the Court.’”
The district court’s decision is supported by the broad
sweep of th Elrod plurality, but there is considerable un-
certainty as to how a majority of the Supreme Court would
treat a failure to rehire and other patronage practices.
Although there is some doubt regarding the application of
Elrod in this case, it is unecessary to decide that question
in view of our conclusion on the issue of retroactivity.
Therefore, for the purposes of disposing of this litigation,
we assume without deciding that Elrod is applicable.
II. The retroactivity issue
As previously stated, the Supreme Court’s decision in
Elrod was handed down 6 months after Sheriff Harber had
assumed the duties of his office and failed to reappoint
any of the plaintiffs. In deciding whether this far-reaching
decision of the Supreme Court should apply retrospec-
tively in a civil case such as this, we look to the guidelines
laid down by the Court in Chevron Oil Co. v. Huson, 404
U.S. 97 (1971).
First, in order not to be applied retrospectively, the
‘decision must establish ‘‘a new principle of law, either by
overruling clear past precedent on which litigants may
have relied * * * or by deciding an issue of first impres-
sion whose resolution was not clearly foreshadowed
* * * ”' (404 U.S. 106.] In his dissent in Elrod, Chief Jus-
tice Burger described the holding as follows:
* * * the Court strains the rational bounds of First
Amendment doctrine and runs counter to longstand-
ing practices that are part of the fabric of our demo-
cratic system to hold that the Constitution commands
something it has not been thought to require for 185
years. For all that time our system has wisely left
* Note, Patronage and the First Amendment After Elrod v.
Burns, 78 Columbia L. Rev. 468 (1978).
10a
these matters to the States and, on the federal level,
to the Congress. * * * [427 U.S. at 375.]
Justice Powell, in his dissent, characterized the majority
ruling as follws:
The Court holds uncontitutional a practice as old as
the Republic, a practice which has contributed signif-
icantly to the democratization of American politics.
This decision is urged on us in the name of First
Amendment rights, but in my view the judgment nei-
ther is constitutionally required nor serves the inter-
al a1 representative democracy. * * * [427 U.S. at
These statements, standing alone, are sufficient for us
to conclude that Elrod decided an issue of first impression
whose resolution was not clearly foreshadowed. However,
there is much more.
The district court in this case recognized that ‘Elrod
did represent a new development of constitutional law in
that a state's interest in its patronage system was found
to be of insufficient magnitude so as to justify abridge
ment of First Amendment freedoms.” [Jt. App. P. 94.]
Moreover, Elrod unquestionably overruled past prece-
dent in this circuit. In Nunnery v. Barber, 503 F.2d 1349
(4th Cir. 1974), cert. denied 420 U.S. 1005 (1975), this court
upheld a patronage discharge against an attack on consti-
tutional grounds. After reviewing the history of judicial
consideration of patronage, the court first determined that
a patronage discharge case poses an issue which sould be
resolved legislatively, not judicially, and that the legisla-
tive determination should not be overturned unless found
to be palpably arbitrary or irrational. Alternatively, the
court decided that an employee who voluntarily accepted
a position knowing that it was dependent upon political
activity waived the right to complain of a patronage dis-
charge.
lla
Finally, the court rejected the contention that the plain-
tiff's case was supported by previous decisions of the Su-
preme Court, stating:
Nor do we find any support for plaintiff's contention
in Perry v. Sinderman (1972), 408 U.S. 593, 93 S. Ct.
2694, 33 L. Ed.2d 750, even,though she places great
reliance on that authority. That case involved a col-
lege teacher, who had not been employed as a patron-
age employee and whose initial or continued employ-
ment was in no way dependent on political affiliation
or activity. * * * [503 F.2d 1359.]*
Understandably, the deputies argue that Elrod was
clearly foreshadowed by Keyishian v. Board of Regents,
385 U.S. 589 (1967) and Perry v. Sindermann, 408 U.S. 593
(1972). Assuming arguendo that we could agree with this
contention, we would still hold that Elrod should not be
applied retroactively in this case, because ‘‘it was a clear
break with the past.’’ Desist v. United States, 394 U.S.
244, 248 (1969); cf. CSC v. Letter Carriers, 413 U.S. 548,
564 (1973); United Public Workers v. Mitchell, 330 U.S 75,
99 (1947).° .
The second criterion set forth in Chevron requires a
court to ‘“‘weigh the merits and demerits in each case by
looking to the prior history of the rule in question, its
purpose and effect, and whether retrospective operation
will further or retard its operation.’ [404 U.S. 106-07, quot-
ing Linkletter v. Walker, 381 U.S. 618, 629 (1965).] We
find this the most difficult of the factors to apply, because
‘Plaintiffs correctly point out that this court distinguished
Nunnery from Illinois State Employees Union v. Lewis, 473 F.2d
561 (7th Cir. 1972), on the ground that the legislative character-
ization of Nunnery’s job as sensitive and nonroutine was not
arbitrary and irrational. However, Nunnery emphatically held
that the Lewis decision was unprecedented and contrary to the
general rule followed by both state and federal courts.
5 See the discussion of the these cases in Elrod v. Burns, 427
U.S. 347, 386-87 (1976) (Powell, J., dissenting).
12a
we are not persuaded that a showing has been made that
retroactive application of Elrod in this case will further or
retard the operation of the new rule. In civil cases, which
present different considerations from those in criminal cas-
es, the courts have often focused on such factors as reli-
ance and the need for stability.* We think this is the teach-
ing of Lemon v. Kurtzman, 411 U.S. 192 (1973), the most
recent expression of the Supreme Court on the question.
We are faced then with a Situation where we must use
the balancing process to determine whether the benefits to
be gained by applying Elrod retroactively to this case are
outweighed by considerations of reliance, hardship, injus-
tice, and the impact on the administration of justice in the
Fourth Circuit.
The district court found that Sheriff Harber undoubt-
edly acted under color of state law, relied on the applicable
Virginia statute, and followed the longstanding practice
under which newly elected sheriffs in Lee and other Vir-
ginia counties selected their deputies on a patronage basis.
The court also recognized that Sheriff Harber’s action was
in accord with the applicable law in the Fourth Cirtuit as
expressed in Nunnery v. Barber, supra. Nevertheless, the
district court concluded that none of the classic elements
of reliance interest are present in this case.
First, with respect to the sheriff's reliance on Nunnery
v. Barber,the district court held that the conflict between
that case and Illinois State Employees Union v. Lewis,
supra, was sufficient to diminish the ‘‘potential for a reli-
ance interest.’’ We cannot agree.
In Nunnery v. Barber, supra, this court found that J/li-
nois State Employees Union was ‘‘without direct prece-
* Note, Retroactivity and Civil Suits: Linkletter Modified, 42
Fordham L. Rev. 653, 659 (1974). See also Currier, Time and
Change in Judge-Made Law: Prospective Overruling, 41 Virginia
L. Rev. 201, 235-37 (1965).
l3a
dent’’ and a departure from the accepted rule which had
been laid down in many cases cited in the opinion. [503
F.2d 1352, and n.6.] As this court also noted, several com-
mentators had remarked tht Illinois State Employees
Union was the first case which granted constitutional pro-
tection of political association to patronage employees. Jd.
Under these circumstances, the sheriff’s reliance on the
Nunnery case was reasonable.
The district court also concluded that the defendant's
reliance was unjustified because (1) he did not act in reli-
ance upon a decision of the Supreme Court; (2) Elrod did
not overrule an existing Supreme Court precedent, and (3)
in view of the Supreme Court’s holdings in Perry v. Sin-
dermann, supra, and Keyishian v. Board of Regents, supra,
Sheriff Harber should reasonably have suspected that he
could not act with impunity. We have already pointed out
that in Nunnery, we expressly considered Perry v. Sinder
mann and decided it did not support the plaintiff's posi-
tion, because it involved a teacher who had not been em-
ployed on a patronage basis and whose continued employ-
ment was not dependent upon political affiliation or
activity.
If this court could not forsee the decision in Elrod, we
certainly cannot agree that Sheriff Harber should have
anticipated that his actions would be condemned by this
new development in constitutional law.
The district court also dismissed defendant’s reliance on
‘the Virginia statute and upon the long-existing patronage
practice on the grounds (1) that the statute is relatively
innocuous, authorizing no more than an exercise of discre-
tion, and (2) that opportunities for the exercise of political
patronage have been largely whittled away by the growth
of civil service systems. We think a sufficient reason for
rejecting this view may be found in the following state-
ment from Lemon v. Kurtzman, supra, at 199:
l4a
* * * statutory or even judge-made rules of law are
hard facts on which people must rely in making de-
cisions and in shaping their conduct. This fact of legal
life underpins our modern decisions recognizing a doc-
trine of nonretroactivity. * * *
The final element for determining retroactivity. as stated
in Chevron, calls for weighing the inequity that may be
imposed as a result of retro-application, for, as the Court
said, ‘‘[w]here a decision of this Court could produce sub-
stantial inequitable results if applied retroactively, there
is ample basis in our cases for avoiding the ‘injustice or
hardship’ by a holding of nonretroactivity.”’ [402 U.S. at
106-07, quoting Cipriano v. City of Houma, 395 U.S. 701,
706 (1969).] We are convinced that both hardship and dis-
ruptive instability will result from the restrospective ap-
plication of Elrod. Although we do not have any statistics
showing the number of employees who would be affected,
we may safely assume that there are thousands of patron-
age appointments in Virginia and in this circuit which will
be subject to attack if Elrod is given retroactive applica-
tion. If former employees whose jobs expired under the
terms of state law are reinstated, new employees who were
hired in reliance on existing law and custom followed for
many years will lose their jobs. Several cases are now
pending in the district court below,’ brought by plaintiffs
who seek recovery on the ground that they lost their po-
sitions through the operation of the patronage system
which existed before Elrod was decided. A large turnover
of employees in state and county offices would undoubt-
edly create confusion and seriously disrupt the efficient
functioning of these offices. Such expectations and prob-
abilities prompted the court in Litwhiler v. Hidlay, 429 F.
Supp. 984 (M.D. Pa. 1977), to hold that Elrod should not
be applied retrospectively. The court there reviewed the
factors discussed in Chevron and based its holding pri-
a The number of these cases may be quite large, so the plain-
tiffs’ observation that the statute of limitations has now run for
pre-Elrod dismissals is unpersuasive.
=
l5a
marily on the chaos which the court felt would result from
a retroactive application, declaring that such action
‘“‘would ignite a chain reaction of claims whose magnitude
exceeds reasonable assessment.”’ [429 F. Supp. at 193.]
Except for the decision of the district court below, Lit-
whiler is the only case we have found in which a court has
expressly considered and ruled on the retroactivity of E/-
rod.*
Finally, we think the hardship that may be imposed
upon many employees who would lose their jobs by the
retroactive application of Elrod is substantially greater
than the hardship that will be suffered by plaintiffs if we
decide that Elrod should be applied prospectively only.
The hardship caused them by this decision is no greater
than that sustained by the deputies they replaced in Jan-
uary 1972. Plaintiffs were well aware of the state law and
the patronage practice that had long prevailed and realized
when they were appointed by Sheriff Flanary that they
could expect to lose their jobs if he lost the election. We
agree with defendant that their reinstatement was a wind-
fall—a result which we think should not be provided by a
holding of retroactivity.
We think the factors which we have discussed tilt the
balance in favor of the prospective application of Elrod. It
follows that the portion of the district court’s judgment
and order of April 1, 1977, which ordered plaintiffs’ rein-
statement and awarded attorneys’ fees and costs is hereby
set aside. Sheriff Harber may, at his discretion, replace
* Claiming that Litwhiler is of doubtful validity, plaintiffs rely
on Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir. 1977); Alfaro de
Quevedo v. De Jesus Shuck, 556 F.2d 591 (1st Cir. 1977); Rivera
Morales v. Benitez de Rexach, 541 F.2s 882 (1st Cir. 1976), and
Barton v. City of Eustis, 415 F. Supp. 1355 (M.D. Fla. 1976). An
examination of these cases reveals that the issue of retroactivity
was not discussed and apparently was never raised in any of
them. Consequently; we cannot consider them as authoritative
precedents on the retroactivity issue.
16a
any of the plaintiffs who were reinstated by the district
court's order, provided that written notice of the proposed
action shall be given to each of the affected deputies at
least 30 days before the effective date of his termination.
AFFIRMED IN PART AND REVERSED IN PART.
HALL, Circuit Judge, concurring:
I concur in the result reached by the majority, but I
think that we cannot fairly decide the issue of Elrod's
retroactivity without first determining that the issue is
squarely presented by the facts. If this case is not con-
trolled by the rule of Elrod—and I submit that it is not, as
the majority itself initimates—than we have no occasion
to consider whether Elrod should be accorded retroactive
effect.
Because I fear that the majority opinion may be read to
imply that Elrod would apply prospectively on facts sim-
ilar to those in this case, I write to express my view that
Elrod has no application here. The majority discusses a
number of pertinent factual considerations: (1) the deputies
took office pursuant to a statute which fixed their terms
and were simply not rehired after the terms expired; (2)
the deputies actively campaigned against Sheriff Harber
(which refutes any inference that they lost their jobs be-
cause of passive political beliefs or affiliation); (3) the de-
puties were not pressured to contribute time or money to
Harber's party or to obtain the sponsorship of a member
of that party; and (4) the nature and size of the Lee County
Sheriff's Office necessitates mutual confidence and co-op-
eration which is unlikely to exist where members of the
office have actively opposed each other in a bitter election
campaign. These facts are completely dissimilar to those
in Elrod, and mandate the conclusion that Sheriff Harber
was not constitutionally constrained to re-hire the deputies
whose terms had expired.
1 would deny relief on this ground, and save the issue of
Elrod’s retroactivity for another day.
a
——
17a
APPENDIX B
FOR THE FOURTH CIRCUIT
No. 77-1927
Filed Feb. 26, 1979
Clarence Ramey, et al. Appellees,
versus
Paul T. Harber, etc. Appellant,
and
Board of Supervisors of Lee County, et al Defendants.
No. 77-1928
Clarence Ramey, et al, Appellants,
versus
Paul T. Harber, etc., et al, Appellees.
No. 78-1010
Clarence Ramey, et al, Appellants,
versus
County of Lee, Virginia, et al, Appellees.
ORDER
Upon consideration of the petition of Clarence Ramey,
et al, for rehearing and suggestion for rehearing en banc,
and no judge having requested a poll on the suggestion for
rehearing en banc,
It is ADJUDGED and ORDERED that the petition for
rehearing is denied.
18a
Entered at the direction of Judge Haynsworth for a
panel consisting of Judge Haynsworth, Judge Cowen, and
Judge Hall.
For the Court,
/s/ William K. Slate, II
CLERK
19a
APPENDIX C
IN THE
United States District Court
for the Western District of Virginia
ABINGDON DIVISION
Civil Action No. 76-0848
CLARENCE RAMEY, ET AL
Plaintiffs
v.
PAUL T. HARBER,
Defendant
Memorandum Opinion, Findings of Fact and
Conclusions of Law
By: James C. Turk,
Chief District Judge
Filed Apr. 22, 1977
This action is predicated on 42 U.S.C. § 1983 et seq and
came to be tried by this court. Perceiving this case to
involve certain factual issues of great import, the court
empaneled an advisory jury to assist the court in the con-
sideration of such questions, pursuant to Rule 39(c) of the
Federal Rules of Civil Procedure. Following trial of this
case, conducted from January 26, 1977 through January
28, 1977, the advisory jury responded to special verdict
form questions with answers totally favorable to plaintiffs.
By way of a motion for judgment notwithstanding the
verdict, defendant would now have the court reject the
advisory jury’s findings. Throughout the development of
al
20a
this case, defendant has contended that the resolution of
the issues turns solely on an interpretation of Virginia law.
Defendant further contends that even if the jury’s findings
are adopted, judgment against the defendant cannot be
effected since the case involves application of newly de-
veloped constitutional law which should properly be ap-
plied prospectively. Inasmuch as all post-trail arguments
have been heard and all post-trial breifs filed, the court
now proceeds to consider defendant's contentions and to
make apporproate findings of fact and conclusions of law.
Statement of the Facts Not at Issue
Up until December 31, 1975, plaintiffs in this action held
positions as deputy sheriffs in Lee County, Virginia. All
of the plaintiffs were appointed as deputy sheriffs by Cur-
tis H. Flanary who was sheriff of Lee County from January
1, 1972 through December 31, 1975. Mr. Flanary was elect-
ed Sheriff in the general election held in November of 1971.
Apparently, upon assuming office, Mr. Flanary hired a
totally new set of deputies, retaining none of the deputies
who served under his predecessor, a Democrat. Mr. Flan-
ary stood for re-election to the Office of Sheriff in the
general election held in November of 1975. He was opposed
by the defendant, Paul T. Harber, who ran as the candidate
of the Democratic Party. Mr. Harber proved to be the
successful candidate and, accordingly, commenced prepa-
rations for the assumption of office at 12:01 a.m. on Jan-
uary 1, 1976.
Apparently, Sheriff-elect Harber proceeded to issue for-
mal application forms to all individuals who indicated an
interest in the position of deputy sheriff. It is uncontrov-
erted that only one of the named plaintiffs made a formal
application for employment as a deputy under Sheriff Har-
ber.' Out of the more than fifty applicants, Sheriff Harber
' As discussed infra, the anpointments of Sheriff Flanary’s
deputies ended with the term of their principal.
2la
selected ten candidates to serve as deputies. None of the
plaintiffs were numbered among the successful applicants.
However, the record reveals that during the period be-
tween the election and the time of Sheriff Harber’s as-
sumption of office, most of the plaintiffs expressed an
active interest in the status of their jobs.? Indeed, such
interest apparently resulted in the development of a degree
of friction between some of the deputies and Sheriff-elect
Harber. On the night of December 31, 1975, Sheriff-elect
Harber and his staff of deputies went to the Lee County
Sheriff's Office so as to prepare to commence execution of
the duties of Sheriff at 12:01 a.m. on January 1, 1976.
Sheriff-elect Harber and his staff were confronted by many
of Sheriff Flanary’s deputies who again requested infor-
mation on their status. As in previous discussions, Sheriff-
elect Harber told the Flanary deputies, in essence, that
their status was solely the concern of their principal, Sher-
iff Flanary, and that their continued employment was not
a matter for his (Harber’s) comments. Sheriff-elect Harber
and his deputies began execution of the duties of the office
of Sheriff on January 1, 1976.
It is uncontroverted that all of the plaintiffs campaigned
actively in Sheriff Curtis Flanary’s bid for re-election. At
the time of trial, it became apparent that the motivation
for such political activity varied from plaintiff to plaintiff.
Several of the plaintiffs attributed their political work to
a long-standing affiliation with the Lee County Republican
Party. Other plaintiffs noted that they were interested in
maintaining Sheriff Flanary in office so that they might
be assured of keeping their own jobs. Indeed, Sheriff Flan-
* In this context, it is perhaps relevant to note that the plain-
tiffs apparently felt that they had expressed their interest in
continued employment to Sheriff-elect Harber in the period be-
tween the election and the end of the year. At trial, it became
evident that most of the plaintiffs felt that making formal ap-
plication for deputy sheriff would have been either futile or un-
necessary since they already held the positions.
22a
ary testified that he expected all his deputies to work for
him in the campaign. Sheriff Flanary further observed that
he felt that this was only fair, since all his predecessors
had been able to rely on similar support. In this context,
it becomes clear that this case involves the operation of
the Virginia variant of the political substructure commonly
known as the patronage system. To place the matter in
clearer focus, the court notes that in many Virginia coun-
ties, a change in the political party controlling the Sheriff's
office is often accompanied by a complete change of per-
sonnel in the deputy positions.’ As discussed infra, such a
‘‘house cleaning”’ has long been considered permissible un-
der the applicable Virginia law concerning appointment of
Sheriff's deputies.
Subsequent to the assumption of office by Sheriff Har-
ber, plaintiffs attempted to secure reinstatement to their
previous positions of deputy sheriff. Initially, they filed
grievances pursuant to § 15.1 - 7.1 of the Code of Virginia
(1950), as amended. However, as currently constituted, the
grievance mechanism established under § 15.1 - 7.1 is in-
applicable to deputies of constitutional officers such as the
Sheriff. However, on September 27, 1976, plaintiffs com-
menced this court action, alleging that defendant’s course
of conduct operated so as to deprive plaintiffs of certain
rights guaranteed under the First and Fourteenth Amend-
ments to the Constitution of the United States. Jurisdic-
tion of this court is pursuant to 28 U.S.C. § 1343 and is
uncontested. The action was originally brought pursuant
to 42 U.S.C. $§ 1983, 1985, 1986, and 1988. In the com-
plaint as eventually developed before this court, plaintiffs
specifically allege that their employment as deputy sheriffs
was discontinued solely because of their political affilia-
tions and that the conduct of defendant operated so as to
restrict and infringe upon plaintiffs exercise of their free-
’ However, in larger Sheriff's offices, it is not uncommon for
deputies of the outgoing administration to be retained.
23a
dom of political belief and association.‘ In their initial com-
plaint, plaintiffs sought injunctive, monetary, and decla-
ratory relief. The court denied plaintiffs’ motion for prelim-
inary injuctive relief by order dated November 19, 1976,
finding that since all plaintiffs had already become sepa-
rated from service with the Sheriff's office, no showing of
irreparable injury had been made. The court also based
this denial on the fact that an expedited trial date had
already been granted. Plaintiffs subsequently appealed the
court’s denial of preliminary injunctive relief to the Court
of Appeals for the Fourth Circuit, where such appeal is
pending to date.
Relevance of Elrod v. Burns
In the development and trial of the issues of this case,
both sides recognized the interplay of the recent United —
States Supreme Court decision in Elrod v. Burns, 427 U.S.
347, 96 S.Ct. 2673, 49 L.Ed.2d 647 (1976). Since the cir-
cumstances of Elrod are somewhat similar to those in-
volved in the instant case, the court deems it relevant to
summarize the holdings in Elrod, prior to a discussion of
the factual issues and defendent’s contentions in this case.
Elrod involved the actual discharge and threat of dis-
charge allegedly suffered by several employees of the office
of Sheriff in Cook County, Illinois, following a change of
party in the position of Sheriff. The affected employees
alleged that the conduct of Sheriff Elrod operated so as to
violate rights secured under the First Amendment. The
case reached the United States Supreme Court on Sheriff
Elrod’s appeal from an order of the Court of Appeals for
‘Prior to the trial of this case, the court granted plaintiffs’
motion to dismiss, as party defendants, the members of the Lee
County Board of Supervisors who had originally been named
both individually and in their official capacities. The court also
granted plaintiffs’ motion to dismiss so much of their complaint
as related to allegations of denial of procedural due process and
equal protection.
24a
the Seventh Circuit which overturned the judgment of the
District Court denying preliminary injunctive relief.’ In a
divided majority opinion, the Supreme Court affirmed the
judgment of the Seventh Circuit. Clearly, Elrod involved
the operation of the Illinois system of political patronage.
Three of the Justices who comprised the majority in
Elrod recognized a need to evaluate the propriety of the
political patronage system in light of the safeguards of
First Amendment freedoms established by such cases as
Keyishian v. Board of Regents, 385 U.S. 587, 87 S.Ct. 675,
17 L.Ed.2d 629 (1967) and Perry v. Sinderman, 408 U.S.
593, 92 S.Ct. 2694, 33L.Ed.2d 570 (1972). Mr. Justice Bren-
nan, joined by Mr. Justice White and Mr. Justice Marshall,
made the evaluation and found, inter alia, as follows:
‘Patronage practice falls squarely within the prohi-
bitions of Keyishian and Perry. Under that practice,
public employees hold their jobs on the condition that
they provide, in some acceptable manner, support for
the favored political party. The threat of dismissal for
failure to provide that support unquestionably inhib-
its protected belief and association and dismissal only
penalizes its exercise.’’ 427 U.S. at 359.
Finding no compelling reasons for restraint of such free-
doms, Mr. Justice Brennan deemed the patronage system
to be constitutionally invalid.
Mr. Justice Stewart and Mr. Justice Blackmun con-
curred in the judgment of the other majority members.
However, Mr. Justice Stewart, joined by Mr. Justice
Blackmun, specifically found the circumstances of Elrod
to be too narrow in scope so as to permit a definitive
characterization of the constitutional status of all patron-
* Unlike the instant case, several of the plaintiffs had not yet
been separated from service in Elrod, thus creating a potential
for irreparable harm. The opinion of the Seventh Circuit appears
under Burns v. Elrod, 509 F.2d 1133 (7th Cir., 1975).
25a
age systems. Nevertheless, Mr. Justice Stewart agreed
with the plurality that the affected employees in Elrod had
possibly suffered a denial of First Amendment freedoms.
Relying on established precedent, Mr. Justice Stewart con-
cluded as follows:
“The single substantive question involved in this case
is whether a nonpolicymaking, nonconfidential gov-
ernment employee can be discharged or threatened
with discharge from a job that he is satisfactorily
preter on the sole ground of his political beliefs.
agree with the plurality that he cannot. See Perry v.
Sinderman, 408 US. 593, 597-598.’’ 427 U.S. at 375.
Mr. Chief Justice Burger, Mr. Justice Powell, and Mr.
Justice Rehnquist joined the dissent. Relying on the sig-
nificance of the past role that patronage practices have
played in the American democratic process, Mr. Justice
Powell concluded, inter alia, that the various States, acting
in sound discretion, should be able to provide for emloy-
ment in certain public offices, conditioned on partisan po-
litical affiliation. Mr. Justice Powell further reasoned that
the states interests in maintaining such practices are so
significant as to justify an abridgement of First Amend-
ment guarantees.
Mr. Justice Stevens took no part in the consideration
and decision in Elrod.
Application of Elrod v. Burns to the Formulation of the
Issues in the Instant Case
Given the division of the majority in Elrod, this court
must recognize that a general assessment of the validity
of the Virginia patronage system would necessarily involve
a speculative trek through largely uncharted
waters.°However, Elrod clearly represents a new develop-
® As discussed infra, the instant case permits a somewhat dif-
ferent variation of patronage practice in that the affected em-
ployees were not reappointed, rather than dismissd.
26a
ment in constitutional law. Stated briefly, Elrod must
stand for the proposition that the operation of a patronage
system cannot be deemed so crucial to the conduct of the
democratic system so as to permit a relaxation of certain
First Amendment safeguards, as delineated by earlier case
law. While Mr. Justice Stewart and Mr. Justice Blackmun
were unwilling to review the ramifications of all patronage
systems, there can be no doubt that all five majority mem-
bers in Elrod found that the application of the Illinois
system of patronage could be violative of First Amend-
ment freedoms, given certain circumstances. The “lowest
common denominator”’ in the majority opinion in Elrod
must be considered to be that embodied in Mr. Justice
Stewart's paraphrase of the rule of Perry: a nonpolicymak-
ing, nonconfidential governmental employee cannot be dis-
charged from a job that he is satisfactorily performing
upon the sole grounds of his political beliefs. 427 U.S. at
375. Implicit in this ‘“‘common denominator’”’ is the recog-
nition that the patronage dismissal of a policy-making,
confidential subordinate would , by necessity, involve
broader considerations than mere political affiliation.’
In light of the above analysis, it becomes clear that the
loss of employment through the operation of a patronage
system must be evaluated on an individual basis. In order
to conform to the “lowest common denominator’’, it is not
enought to determine that the loss of employment occurred
through what a finder of fact might perceive to be a pa-
tronage system. Rather, it must be determined (1) whether
the affected employee served in a nonpolicymaking and
’ The inclusion of the criteria of ‘‘nonpolicymaking and non-
confidential” represents a logical evolution from Perry and Key-
ishian and was apparently necessitated by the varying circum-
stances of patronage dismissals. The plurality opinion in Elrod
employs similar terminology. 427 U.S. at 367-368. In this con-
text, it is again clear that all five majority members in Elrod
recognized a need to curb some patronage dismissals in favor of
First Amendment rights.
27a
nonconfidential capacity, (2) whether there is reason to
believe that the affected employee was not sufficiently
performing his duties so as to justify separation from em-
ployment, and (3) whether the affected employee was den-
ied continued employment solely because of his political
affiliations. While plaintiffs contended that their burden
of proof under such a test was greater than that contem-
plated by the plurality in Elrod, the court presented this
case to the advisory jury in the form of a special verdict
with questions designed to reach each of these factual
issues. The court listed each of the eleven parties plaintiff
in such a manner so that the jury might decide each factual
issue as it related to each of the plaintiffs. In each instance
and for each individual, the advisory jury rendered a ver-
dict totally favorable to all plaintiffs.*
Defendant's Motion for Judgment N.O.V.
Throughout the development and trial of this case, de-
fendant has maintained that the factual situation in Elrod
is clearly distinguishable from the circumstances of the
instant case. Defendant urges that the operation of the
Virginia statute, governing appointment of deputy sher-
iffs, is such as to render plaintiffs’ claim of First Amend-
ment infringement totally frivolous. Section 15.1-48 of the
Code of Virginia (1950), as amended, provides the only
authority for the appointment of deputy sheriffs. Board of
Supervisors v. Lucas, 142 Va. 84, 91, 128 S.E. 574, 576
(1925). The section provides, in pertinent part, as follows:
“Appointment of deputies; their powers; how re-
moved.—
The ... sheriff of any county or city, ... may at the
time he qualifies as provided in § 15.1-38 or thereafter
* The court also asked the advisory jury to determine whether
defendant exercised good faith in his selection of deputies. The
jury found that he had not. As discussed infra, the question was
designed to assist the court in fashioning any equitable remedy
that might prove to be appropriate.
28a
mpeaeet one or more deputies, who may discharge any
of the official duties of their principal during this
continuance in office, unless it be some duty the per-
formance of which by a deputy is expressly forbidden
by law. ... The officer making any such appointment
shall certify the same to the court in the clth's office
of which the oath of the principal of such deputy is
filed and a record thereof shall be entered in the order
book of such court. Any such deputy at the time his
principal qualifies as provided in § 15.1-38 or there-
after, and before entering _ the duties of his office,
shall take and prescribe the oath now provided for
county officers. ... Any such deputy may be removed
from office by his principal. .. .”’
It is clear that under the provisions of § 15.1-48, the terms
of the deputies of constitutional officers in Virginia end
with the term of their principal. Farmers’ Bank of South-
west Virginia v. McGavock, 119 Va. 510, 89 S.E. 949
(1916). Thus, even had Sheriff Harber decided to retain
one of Sheriff Flanary’s deputies, that deputy would have
had to requalify as well as take and prescribe the appoint-
ment oath.*In his motion for judgment n.o.v., defendant
has reaffirmed his reliance on § 15.1-48 in that he would
have the court reject the advisory jury's findings.
Defendant makes several contentions relating to § 15.1-
48. Two of these contentions are interrelated and make the
stronger argument. Defendant correctly observes that El-
rod was concerned with patronage dismissal. In the instant
case, the actual separation from employment occurred
through the operation of law. Consequently, defendant rea-
sons that plaintiffs could not have possibly suffered a loss
of employment due to the exercise of rights guaranteed
under the First Amendment. In a slightly different con-
text, defendant urges that § 15.1-48 completely wipes the
* At trial, it became evident that plaintiffs understood the
mandates of § 15.1-48 in that they realized that their formal roles
ended with the expiration of Sheriff Flanary’s term.
29a
slate clean as regards an incoming Sheriff’s choice of de-
puties. Given the wide discretion vested in the Sheriff by
virute of § 15.1-48, defendant insists that there was no
duty to continue the emloyment of the deputies of the
defeated principal.'°
The court finds defendant’s position to be without merit.
The mere fact that plaintiffs had no vested right to reap-
pointment cannot be dispositive of their claim of consti-
tutional infringement. On several occasions, the United
States Supreme Court has ruled that a nontenured school
teacher could not be denied contract renewal solely because
of the teacher’s exercise of rights protected under the First
and Fourteenth Amendments. E.g. Shelton v. Tucker, 364
U.S. 479, 81 S.Ct. 247, 5 L.Ed. 2d (1960); Keyishian v.
Board of Regents, supra; Perry v. Sinderman, supra. In-
deed, it would seem that the potential for abuse of First
Amendment freedoms is accentuated when the decision as
to reappointment is totally within the discretion of the
appointing authority. See Shelton v. Tucker, supra, 364
U.S. at 486. Thus, the fact that plaintiffs had no right to
expect reappointment is insufficient, in itself, to preclude
a First Amendment action."
' Traditionally, principal officeholders in Virginia have been
deemed to enjoy great discretion in personnel decisions. See, e.g.,
Hoge v. Trigg, 4 Munf. (18 Va.) 150 (1814).
'' It has also been held that an employee who has received his
job through operation of a patronage system could be viewed to
be precluded from raising objection to a loss of his job through
operation of the same system. Nunnery v. Barber, 503 F.2d 1349,
1359 (4th Cir., 1974), cert. denied 420 U.S. 1005, 95 S.Ct. 1448,
43 L.Ed. 2d. 763 (1975); Alomar v. Dwyer, 447 F.2d 482, 483-383
(2d Cir., 1971), cert. denied, 404 U.S. 1020, 92 S.Ct. 683, 30
L.Ed.2d 667 (1972). However, inasmuch as the United States
Supreme Court has now applied the rationale of Perry to the
context of political patronage, such an implied waiver is obvious-
ly not relevant. See Nunnery v. Barber, supra, at 1361 (dissenting
opinion of Circuit Judge Butzner).
30a
As concluded above, a clear majority of the Court in
Elrod v. Burns, supra, found that a State’s interest in
preserving its patronage system was not so great as to
permit a relaxation of First Amendment safeguards. Con-
sequently, the court is unable to perceive any difference in
the test to be applied when the lack of expectancy interest
arises out of the operation of contract renewal and when,
as here, the lack of expectancy interest arises through the
operation of statute.
It is clear that in First Amendment actions, the reason
for dismissal or failure to reappoint presents the crucial
question. Defendant contends that § 15.1-48 must be read
so as to permit an appointing principal in Virginia to em-
ploy unbridled discretion in making his choice of deputies.
Defendant maintains that since the Flanary deputies were
automatically terminated at midnight on December 31,
1975, he owed them no further consideration. However,
the court must find that, under the law, such unbridled
discretion simply does not exist. In Perry v. Sinderman,
supra, the Supreme Court characterized the state of the
law as follows:
“For at least a quarter of a century, this court has
made clear that even though a person has no ‘right’
to a valuable government 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 — on the basis that infringes his constitu-
tionally protected interests—especially his interest in
freedom of speech.”’ 408 U.S. at 597.
Stated briefly, while Sheriff Harber could have refused to
consider continued employment for the Flanary deputies
for numerous and valid reasons, he could not refuse con-
sideration for the wrong reasons. It was not enough for
Sheriff Harber to redirect plaintiffs’ queries concerning
their job status to their “lame duck”’ principal. Further-
more, it was not enough for the defendant to blindly rely
3la
on the patronage practices established over the course of
decades, even centuries, if those practices had degraded to
no more than purely political manipulations. Finally, while
the Commonwealth of Viringia may have wisely chosen to
vest broad discretion in its various constitutional officers
as to matters of personnel appointment and discharge, this
court is unaware of any authority supportive of the prop-
osition that such discretion may take precedence over the
paramount freedoms of speech and association.
The last contention raised by defendant under § 15.1-48
concerns the nature of the duties of deputy sheriffs in
Virginia. Defendant argues that § 15.1-48 serves to vest in
the deputy sheriffs powers coextensive with those of the
Sheriff.'*Consequently, defendant urges that deputy sher-
iffs are policymakers by denfinition and thus excluded
from the rule of Elrod v. Burns, supra. There can be no
doubt that § 15.1-48 grants deputies of constitutional of-
ficers the authority to perform numerous ‘“‘official’’ and
perfunctory duties incumbent to the office. Farmers’ Bank
of the Southwest v. McGavock, supra, at 517, 89 S.E. at
951. If a deputy sheriff could not make a valid service of
court papers, he would be of little value to his principal.
In this sense, “‘. . . a sheriff and his deputy are one.’’ Board
of Supervisors v. Lucas, supra, at 91, 128 S.E. at 576.
However, there can be no doubt that the Sheriff is desig-
nated, both under the Virginia statutory scheme and in
the eyes of the public, as the official in charge. Indeed,
§ 15.1-48 specifically recognizes that some of the Sheriff's
duties may be expressly forbidden to deputies by law. The
deputies are no more than appointees and clearly can be
held answerable to their principal. Of course, some Sheriffs
may choose to delegate great discretion in the policymak-
'? Section 15.1-48 provides that deputies ‘‘... may discharge
any of the official duties of their principal during his continuance
in office, unless it be some duty the performance of which by a
deputy is expressly forbidden by law.” (Emphasis added.)
32a
ing realm of certain of their deputies. For example, Sheriff
Flanary could have allowed his chief deputy, who suprev-
ised the office at night, to have exercised some role in
policy formulation. If so, the chief deputy would have no
grounds for redress under Elrod v. Burns, supra. It is clear
that the question turns on the circumstances of individual
cases in individual Sheriff's offices. Consequently, the
court concludes that the issue of the status of plaintiffs as
policymakers presents factual questions which are prop-
erly before the court for resolution.
In summary, the court must hold that defendant’s reli-
ance on § 15.1-48 is misplaced. Section 15.1-48 provides an
incoming Sheriff the opportunity to exercise some discre-
tion in personnel selections, reappointments, and termi-
nations. However, there is no provision for the exercise of
absolute discretion. Indeed, the law requires otherwise.
Obviously, § 15.1-48 need not be read so as to permit a
constitutionally prohibited abuse of discretion. Moreover,
the automatic termination provisions of § 15.1-48 do not
serve as a bar to a First Amendment action. Finally, the
mere fact that deputy sheriffs are authorized to act in the
name of their principal does not necessitate a finding, as
a matter of law, that such deputies are invariably policy-
makers within their respective offices. Inasmuch as it re-
lates to arguments made under § 15.1-48, defendant’s mo-
tion for rejection of the advisory jury’s verdict is denied.
Section 15.1-48 is best viewed as essentially mechanical
in nature, barren of any far-reaching policy judgments on
political configuration. Specifically, the court is unaware
of any authority supportive of the proposition that
§ 15.1-48 was intended to embody or lend support to the
Virginia system of political patronage. While the operation
of § 15.1-48 has undoubtedly shaped the development of
Virginia patronge practices, the relationship is not sym-
biotic in nature. Section 15.1-48 has meaning and validity
‘33a
far removed from the purely political context.'* Indeed, the
court perceives that the automatic termination provisions
could be employed by a newly elected Sheriff or, for that
matter, a reelected incumbent, so as to provide a simple
and expedient means of discontinuing incompetent depu-
ties. While some observers might still regard such a coup
as an exercise of ‘“‘patronage’’, the test of the constitutional
validity of the practice must be in the substance, not in
the characterization. All that smacks of patronage cannot
necessarily be deemed evil.'* The facts and circumstances
must be viewed in the individual context. Accordingly, the
court finds that this case embodies factual issues which
are properly submitted to an advisory jury and which are
now properly before the court for resolution. Defendant’s
various motions for favorable judgment, premised on
§ 15.1-48, have been properly denied.
Factual Determinations
The advisory jury found that plaintiffs had met their
burden of proof as to each of the requisite elements in the
test as described above. The court now proceeds to eval-
uate the evidence and make appropriate findings of fact.
The evidence clearly reveals that each of the named
plaintiffs was performing in a satisfactory manner at all
times prior to the cessation of employment on December
'S In their original complaint, plaintiff would have this court
declare § 15.1-48 unconstitutional, inasmuch as the section per-
mits patronage practices. Obviously, such a declaration in inap-
propriate if for no other reason that the fact that the court has
found the statute to be subject to a constitutionally acceptable
interpretation. See, e.g., Ashwander v. T.V.A., 297 U.S. 288, 347-
348, 56 S.Ct. 466, 80 L.Ed.2d 1101 (1936).
'‘ In this sense, the court has again received guidance from the
concurring opinion of Mr. Justice Stewart in Elrod v. Burns,
supra at 374 and from the dissenting opinion of Circuit Judge
Butzner in Nunnry v. Barber, supra, at 1360-1362.
34a
31, 1975. Indeed, there is no evidence to the contrary and
defendant does not dispute the point. The greater weight
of the evidence also establishes that each of the named
plaintiffs, including Chief Deputy Onza Collier, was per-
forming in a nonpolicymaking and nonconfidential capac-
ity while serving as a deputy sheriff under Sheriff Flan-
ary.'® The testimony of the deputies revealed that each
individual had clearly assigned duties and responsibilities.
Several of the “road deputies’’ were exclusively assigned
to specific areas of the county. However, in each case, their
freedom of action was limited by the mandates of Sheriff
Flanary. At the most, the only discretion exercised by the
deputies was in purely ministerial matters, such as when
to arrest a drunk or when to drive the drunk home. The
decision that such discretion might be exercised by the
deputies was solely that of Sheriff Flanary. While Chief
Deputy Collier was in charge of the office in the absence
of the Sheriff, the testimony of Flanary and Collier re-
vealed that Collier would leave any policy questions that
might arise until the return of the Sheriff. The evidence
further reveals that Sheriff Flanary did not confide in his
deputies in matters of general administrative operation
and policy formulation. Clearly, the preponderance of the
‘* Numerous commentators have recognized that the term ‘‘pol-
icymaker’’ presents an elusive factual question. See, e.g., Nun-
nery v. Barber supra; Illinois State Employees Council 34, etc. v.
Lewis, 473 F.2d 561 (7th Cir., 1972), cert. denied 410 U.S. 928
and 943, 93 S.Ct. 1364, 1370, 35 L.Ed.2d 590, 609 (1973). Ob-
viously, the term may assume different connotations in different
forms of employment. For purposes of the present case, the court
has considered a policymaker to be one who controls or exercises
a role in the decision making process as to the goals and general
operating procedures of the office. For example, the decision to
make a specific arrest would be a nonpolicymaking act while a
decision to concentrate on certain types of crime would be that
of a policymaker. The court has also assumed that one may
become a policymaker specifically, by delegation of authority, or
tacitly, by gradual ascendancy.
35a
evidence establishes that the deputies merely implemented
policy set forth by their principal.
Finally, the court considers whether the defendant re-
fused to consider the plaintiffs for reappointment solely
because of plaintiffs’ political beliefs and affiliations. In
this context, it is relevant to note what is and what is not
at issue. Much of the evidence adduced at trial related to
Sheriff Harber’s criteria for the selection of new deputies.
At best, Sheriff Harber’s testimony as to these criteria is
generously described as confused. Indeed, it is the court’s
opinion that it was defendant’s testimony on this matter
that led to the advisory jury’s finding of ‘‘bad faith’’ on
the part of Sheriff Harber in his selection process.'* Sheriff
Harber may or may not have selected his new deputies on
the basis of their political affiliation. The court need not
make a finding on this point. The revelant inquiry concerns
whether the old deputies were excluded from consideration
solely because of their political stance. All parties must
agree that if Sheriff Harber did not exclude the plaintiffs
for purely political reasons, it would have represented a
radical departure from past practice, as described by nu-
merous witnesses. Moreover, defendant’s responses to
plaintiffs queries were to take their questions to their de-
feated principal. The implication was clear: he (Harber) had
been elected through the support of his party—Flanary
had been defeated, and the sorry state of affairs suffered
by Flanary’s employees was not to be placed at Flanary’s
door. In such circumstances, merit, training, and experi-
ence were to be extraneous considerations. The court must
find that the preponderence of the evidence, and the infer-
ences reasonably drawn therefrom, establishes that plain-
tiffs were refused consideration for reappointment solely
because of their political beliefs and affiliations.
Before leaving the factual circumstances, the court
deems it relevant to comment on the impact of the opera-
'® See N.8, supra.
36a
tion of the Virginia patronage system, as manifested in
the instant case. In the plurality opinion of Elrod v. Burns,
supra, Mr. Justice Brennan found that the reasons com-
monly advanced in support of patronage practices are not
SO persuasive as to suggest a legitimate grounds for the
curbing of First Amendment freedoms. 427 U.S. at 364-
373. Indeed, Mr. Justice Brennan noted that “... if pa-
tronage contributes at all to the elective process, that con-
tribution is diminished by the practice’s impairment of the
same.”’ Id., at 370. The court finds that the same consid-
erations apply to the Virginia patronage practices, at least
as exhibited in the instant case. Moreover, it appears to
this court that the patronage practices applied in this case
are even more repugnant to sound governmental admin-
istration than the system practiced in Illinois. The court
is unable to conceive of any possible justi*» ation for a
sweeping change of deputies in the small Lee County Sher-
iff’s Office.'? Most of the old deputies had undergone ex-
tensive and expensive training. Indeed, it would seem that
a radical change of staffs would impair the efficiency and
conduct of ongoing criminal investigations. Under the old
system, an incoming Sheriff must labor under great pres-
sure, given the expections of many members of this party
and his campaign workers. The morale of lame duck de-
puties must necessarily plummet, since they must expect
separation from employment regardless of the quality of
their past services. Finally, the efficiency of the Sheriff's
Office during an election period is certainly impaired when
the various deputies know that their jobs may well depend
on how much time they are able to devote to the incumbent
party's campaign.
In summary, the operation of the Virginia system of
patronage, as manifested in the instant case, can only be
‘7 In Illinois, old deputies could apparently retain their posi-
tions if they could command or solicit support from leaders of
the incoming party. Elrod v. Burns, supra at 351.
37a
viewed as dysfunctional, stifling, and counter-productive.
As it affected plaintiffs in this case, the court must decide
that che system is also constitutionally invalid. Moreover,
the court is unable to perceive any indication, either in law
or fact, that Virginia has a greater state interest in main-
taining its patronage system than does the State of IIli-
nois.
Retroactivity of Elrod v. Burns
Predictably, the parties are at great odds as to the prop-
er disposition to be made in this case. Defendant would
have this court declare Elrod v. Burns, supra to be non-
retroactive inasmuch as it applies to prohibited acts which
took place prior to the announcement of the decision on
June 28, 1976. Defendant contends that the traditional
acceptance of patronage practice, coupled with certain ear-
lier court decisions, operated so as to create a “reliance
interest’’ sufficient to prohibit restrospective application.
Plaintiffs argue the Elrod is obviously intended to be ap-
plied retrospectively since the decision is premised on the
strictures of such well known and frequently cited cases
as Perry v. Sinderman, supra and Keyishian v. Board of
Regents, supra.
As Mr. Justice Clark noted in Linkletter v. Walker, 381
U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d. 601 (1965), the doc-
trine of nonretroactivity is a modern innovation, generally
not accepted as common law. It would seem that the
growth of the doctrine has paralleled the developing notion
of law as a dynamic institution. In any case, the doctrine
is now applied to certain situations involving changes in
constitutional interpretation. Most frequently applied in
criminal matters, the doctrine has been invoked to protect
state actions taken under a constitutional principle that is
premised on subsequently rejected decisional law. E.g.,
Linkletter v. Walker, supra, refusing retrospective appli-
cation of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6
rey
38a
L.Ed.2d 1081 (1961), which overruled Wolf v. Colorado,
338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Tehan v.
Shott, 382 U.S. 406, 86 S.Ct., 459, 15 L.Ed.2d 453 (1966),
refusing retrospective application of Griffin v. California,
380 U.S. 609, 85 S.Ct. 14, 53 L.Ed. 97 (1908). The doctrine
has been deemed applicable to civil cases, Linkletter v.
Walker supra, 381 U.S., at 627, and has been so applied
e.g. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct.
1897, 23 L.Ed.2d 647 (1969). On occasion, the doctrine has
been invoked to protect action taken prior to the declara-
tion of a statute’s unconstitutionality. E.g., Lemon v.
— 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151
A review of the relevant cases reveals that the Supreme
Court has considered three factors to be relevant in the
determination of the proper time-frame for the application
of new law. The Supreme Court will inquire into the prior
history of the rule in question; its purpose, impact, and
best means of effecting its objective; and the degree and
nature of reliance engendered by the old rule. See Linklet-
ter v. Walker, supra. As noted above, defendant has placed
primary emphasis on the reliance interest created through
the tradition of political patronage.
Defendant is undoubtedly correct in observing that pa-
tronage practice has played a role in Virginia politics for
many, many years. Opportunistically, defendant reads El-
rod v. Burns, supra to reveal that such learned personages
as Mr. Chief Justice Burger, Mr. Justice Powell, and Mr.
Justice Rehnquist could not perceive that the mandates of
Perry v. Sinderman, supra and Keyishian v. Board of Re-
gents, supra were to be extended beyond the sanctity of
the patronage system. How then, defendant reasons, could
he, a county sheriff-elect and ex-coal miner, know that the
patronage system, employed by his predecessors, was fore-
closed to him? Moreover, defendant notes that the appli-
cable law in the Fourth Circuit in the fall of 1975 was that
expressed in Nunnery v. Barber, 503 F.2d 1349 (4th Cir.,
39a
1974), cert. denied 420 U.S. 1005, 95 S.Ct. 1448, 43 L.Ed.2d
763 (1975), in which it was found inter alia, that correction
of patronage ebuse was a matter of legislative concern.
Thus, defendant would have this court conclude that he is
protected through a reliance interest.
While the court considers defendant’s arguments rele:
vant for certain purposes as described infra, the court is
unable to conclude that the factors assigned by defendant
are sufficient for a finding of a reliance interest as contem-
plated in Linkletter v. Walker, supra and its progeny. De-
fendant was not acting in reliance on a decision of the
United States Supreme Court. While defendant was un-
doubtedly acting under color of state law, the statute in
question is relatively innocuous in that it authorizes no
more than an exercise of some discretion. Clearly, neither
of the classic elements of reliance interest are present in
the instant case; Elrod v. Burns, supra did not overrule an
existing Supreme Court precedent nor did it declare any
statute to be unconstitutional. The court recognizes that
under the criteria for nonretroactivity described in Link-
letter v. Walker, supra, other relevant circumstances must
be examined. While the age of patronage tradition operates
in the defendant’s favor, a survey of the recent history of
the practice reveals that the strength of the tradition has
by no means remained absolute. Opportunities for the ex-
ercise of patronage have largely been whittled away by the
growth of civil service systems and merit plans, both in
Virginia and nationwide. Given such manifestations of dis-
favor and given such clear limitation on the use of discre-
tion in personnel matters as expressed in Keyishian and
Perry, the court must find that defendant should have
reasonably suspected that he could not act with impunity.
As to defendants reliance on the decision in Nunnery v.
Barber, supra, there is support for the proposition that
conflicts among courts as to a rule of law is sufficient to
diminish the potential for a reliance interest. Cf. Roberts
v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 20 L.Ed.2d
40a
1100 (1968); United States v. Estate of Donnelly, 397 U.S.
286, 295, 90 S.Ct. 1033, 25 L.Ed.2d 312 (1970). While the
court in Nunnery was able to distinguish Illinois State
Employees Union Council 34, etc. v. Lewis, 473 F.2d 561
(7th Cir., 1972) cert. denied 410 U.S. 928 and 943, 93 S.Ct.
1364, 1370 35 L.Ed.2d 590, 609 (1973) on the facts, there
could be no doubt that a conflict existed among the various
circuits when the Court of Appeals for the Seventh Circuit
rendered its decision in Burns v. Elrod, supra. Since Burns
v. Elrod, specifically concerned deputy sheriffs, the signif-
icance of the case should have been obvious to anyone who
was familiar with Nunnery v. Barber, supra.
Given the circumstances that patronage has been gen-
erally on the wane in recent years and given the fact that
Elrod v. Burns, supra clearly represents an expansion of
earlier case law, the court must decide that the principles
of Elrod should properly be given retroactive application,
within the confines of the applicable statute of limitations
for actions predicated on 42 U.S.C. § 1983. As noted above,
Elrod did represent a new development in constitutional
law in that a state’s interest in its patronage system was
found to be of insufficient magnitude so as to justify
abridgement of First Amendment freedoms. However, de-
fendant had no particular reason to believe otherwise.
While there was case law to indicate that patronage abuses
might be of legislature concern, such holdings were by no
means uniform. Furthermore, inasmuch as Elrod stands
for the expansion of principles governing protection of
First Amendment freedoms, the court finds that the pur-
pose of Elrod will be best served by retrospective appli-
cation.
In considering the question of retroactive application,
the court has remained cognizant of two recent Circuit
Court decisions which specifically concern the impact of
Elrod v. Burns, supra. In Nunnery v. Barber, F.2d
, Civil Action Number 73-2502 (4th Cir., March 18,
4la
1977) (Nunnery II), plaintiff had applied for leave of the
Court of Appeals for the Fourth Circuit to allow the Dis-
trict Court to reconsider her case, pursuant to Fed. R. Civ.
P. 60(b), in light of Elrod!* Nunnery had previously ex-
hausted her appeal of the adverse decision of the District
Court. In Nunnery II, the Fourth Circuit held that a
change in a rule of law, occurring after judgment becomes
final, is an insufficient ground for reopening for the judg-
ment under Rule 60(b). Moreover, the Fourth Circuit fur-
ther noted in Nunnery II that ‘‘... Elrod contains no in-
dication or suggestion that the Supreme Court intended
its decision to have retroactive effect. ...’’ (Slip Opinion
at 5). However, this court is not convinced that the doc-
trine of nonretroactivity has progressed to the extent that
the Supreme Court’s silence as to the question will create
a presumption of prospective design. Indeed, in the vast
majority of Supreme Court cases providing for nonretroac-
tivity, the Court has found it necessary to decide the ques-
tion in a case considered subsequent to the decision that
is to be applied nonretroactively. It is this court’s under-
standing that, as a general rule, the law in effect at the
time of a court’s decision must be applied, absent consid-
erations of manifest injustice or clear and binding intent
to the contrary. Cf. Bradley v. School Board of the City of
Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d
476 (1974). Moreover, it is clear that the Court of Appeals
for the First Circuit had absolutely no difficulty with a
retroactive application of Elrod in the recent case of Rivera
'® The Court of Appeals for the Fourth Circuit had previously
affirmed the District Court’s decision upholding the patronage
dismissal of plaintiff. Nunnery v. Barber, supra (Nunnery I). As
noted above, it was the opinion of the Fourth Circuit that pa-
tronage abuses are matters of legislative concern. Furthermore,
citing 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), the
Fourth Circuit found that plaintiff implicitly waived her right to
complain of her patronage dismissal when she accepted her em-
ployment under the same practice.
42a
Morales.v. Benitez de Rexach, 541 F.2d 882 (1st Cir. 1976).
While the District Court had found for plaintiff on grounds
of denial of substantive due process, the First Circuit de-
termined that the case involved a patronage dismissal that
was prohibited by Elrod. Even though the dismissal took
place approximately three years prior to the decision in
Elrod, the First Circuit apparently found it unnecessary to
even consider the question of retroactivity of the decision.
The court has considered one final and crucial factor in
its determination as to the retroactive application of Elrod.
The court perceives the problem of retroactivity in a case
such as this to involve a balancing of interests of the
respective parties. Cf. Lemon v. Kurtzman, supra. If re-
troactivity were to be denied, it could be said that a man-
ifest in justice would be done to plaintiffs. There can be no
doubt that plaintiffs had decided to contest their loss of
employment, even before the Supreme Court announced
its decision in Elrod. Given the Supreme Court’s resolution
of that matter, it is at least arguable that plaintiffs could
have eventually prevailed on the bases of Perry and Key-
ishian, even in the absence of Elrod. On the other hand,
defendant would undoubtedly suffer a manifest injustice
if plaintiffs are accorded the full measure of relief for which
they pray. While defendant obviously acted with less than
full knowledge of all the relevant law and circumstances,
his actions were consistent with the highly political con-
text within which he operated. A pawn of political inertia,
defendant would suffer greatly if he were made to bear the
full extent of plaintiffs’ losses. Faced with the unhappy
task of balancing the relative injustices to be suffered by
the parties, the court takes solace in the fact that the
primary relief to be accorded in this case falls within the
province of equity. Given such a circumstance, the pros-
pect of retroactive application can be viewed as less oner-
ous. Armed with the potential for shaping its equitable
remedies in accordance with the needs of the parties and
the realities of the case, the court must conclude that
43a
retroactive application will best serve to protect the inter-
ests of all parties and to advance the purpose of Elrod.'*
Plaintiffs’ Remedies
In their original complaint, plaintiffs sought injunctive,
monetary, and declaratory relief. For reasons stated above,
the court has determined that declaratory relief is inap-
propriate. However, inasmuch as the court has found that
defendant unlawfully refused to consider plaintiffs for
reappointment as deputy sheriffs, the court must deter-
mine that plaintiffs are entitled to reinstatement to their
former positions. The court recognizes that immediate
reinstatment would work a hardship in the management
of the small Lee County Sheriff’s Office. Consequently, the
court will order and decree that reinstatement shall be
effected as of 12:01 A.M. on June 1, 1977. Prior to that
date, the defendant shall afford each of the named plain-
tiffs the opportunity to requalify, as well as take and pre-
scribe the appropriate oath, pursuant to § 15.1-48 of the
Code of Virginia (1950), as amended. Upon reinstatement,
each plaintiff shall enjoy at lest the same renumeration,
privileges, and benefits as he did at the time of his sepa-
ration from employment.
Plaintiffs also seek compensation for their lost wages.
Reimbursement of back wages fall within plaintiffs’ equi-
table remedy of reinstatement. See, e.g., Jinks v. Mays,
464 F.2d 1223, 1226 (5th Cir., 1972). However, it does not
follow that back wages should be reimbursed to prevailing
plaintiffs as a matter of course. Jinks v. Mays, supra at
1226; Wright v. Southwect Alabama Gas District, 376
‘8 The broad discretionary authority of the court in shaping
equitable decrees is well established. See, e.g., Swann v. Char-
lotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267,
28 L.Ed.2d 554 (1971); Brown v. Board of Education, 349 U.S.
294, 75 S.Ct. 753, 99 L.Ed.2d 1083 (1955); Hecht Co. v. Bowles,
321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754 (1940).
44a
F.Supp. 780, 782 (M.D. Ala., 1974). To hold defendant
solely responsible for the back wages of all the plaintiffs
would be both unrealistic and unfair. The court has found
that while defendant was acting in ignorance of relevant
case law and recent circumstances surrounding patronage
practices, defendant was merely responding to the expec-
tations of those to whom he felt he owed a duty. While it
is impossible to determine that defendant acted in good
faith, it is also impossible to conclude that he acted in bad
faith.”° The plaintiffs themselves fully expected that their
requests for consideration by Sheriff Harber would be fu-
tile. In the abstract, it was possible that trained legal
authorities could have foreseen the expansion of Keyishian
and Perry that was eventually embodied in Elrod. How-
ever, such considerations were far removed from the highly
volatile political environment of Lee County, Virginia, into
which Sheriff Harber was thrust as a relative novice. A
court sitting in equity must take cognizance of the realities
of the situation. Exercising discretion on the basis of what
are perceived to be sound equitable principles, the court
must decide that plaintiffs shall not be reimbursed for lost
wages.
Plaintiffs also seek an award of monetary damages.
However, the court finds that no proof of actual damages
has been made. Moreover, given the circumstances of this
case, the court finds that an award of punitive, exemplary,
or nominal damages is inappropriate.
Finally, plaintiffs pray for recovery of attorney’s fees.
Under 42 U.S.C. § 1983, an allowance of attorney's fees is
within the discretion of the court. Considering all relevant
circumstances of this case, the court determines that in
order to do justice between the parties, plaintiffs will be
20 As noted above, the court has determined that the advisory
jury's findings of bad faith on the part of defendant in his selec-
tion process was made in response to questions not at issue. See
N. 9, supra.
45a
allowed reasonable attorney's fees in the sum of Fifteen
Thousand Dollars ($15,000).
Conclusion
The foregoing shall constitute the court’s findings of
fact and conclusions of law. An appropriate judgment and
order will enter this day.
DATED: This 21st day of April, 1977
/s/ James C, Turk
Chief United States District Judge
47a
APPENDIX D
IN THE
United States District Court
for the Western District of Virginia
ABINGDON DIVISION
Civil Action No. 77-0089-B
CLARENCE RAMEY, ET AL.,
Plaintiffs
v.
COUNTY OF LEE, ET AL.,
Defendants.
Filed Nov. 8, 1977
This action came to be heard on the defendants’ motion
to dismiss, upon the defendants’ motion for summary
judgment, and upon the arguments of counsel.
The Court, having considered all issues before it, makes
the following findings:
1. The Court has jurisdiction over all the defendants
under 28 U.S.C. § 1331 and the Fourteenth Amendment to
the United States Constitution;
2. The complaint states a cause of action upon which
relief might be granted;
3. There is no genuine issue as to any material fact, and
the defendant is entitled to judgment as a matter of law,
48a
for the reasons set forth in this Court’s opinion in Ramey
v. Harber, 431 F. Supp. 657 (W.D. Va. 1977), appeal dock-
eted, No. 77-1927 (4th Cir. July 19, 1977).
The Court therefore ORDERS that the defendants’ mo-
tion to dismiss is denied and overruled, but that summary
judgment be entered for the defendants pursuant to Fed-
eral Rule of Civil Procedure 56(c).
Enter this 7th day of November, 1977.
/s/ James C. Turk
Chief United States District Judge
SEEN AND OBJECTED TO:
BRADSHAW AND MORRIS, LTD.
314 Wood Avenue, East
Big Stone Gap, Virginia 24219
By /s/ Walton D. Morris,Jr.
Counsel for the
Plaintiffs
SEEN:
/s/ Larry Lewis
Counsel for the Defendants
49a
APPENDIX E
U.S. CONST. amend. I
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
U.S. CONST. amend. XIV $1
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, lib-
erty, or property, without due process of law; nor deny to
any person within its jursidiction the equal protection of
the laws.
42 U.S.C. § 1983
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, or any State or Territory,
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction there-
of to the deprivation of any rights, privileges, or immuni-
ties secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
VA. CODE $ 15.1-48
The treasurer of any county or city, the sheriff of any
county or city, any commissioner of the revenue, any coun-
ty clerk and the clerk of any circuit or city court may at
the time he qualifies as provided in § 15.1-38 or therafter
appoint one or more deputies, who may discharge any of
the official duties of their principal during his continuance
50a
in office, unless it be some duty the performance of which
by a deputy is expressly forbidden by law. The sheriff of
any county or city making an appointment of a deputy
under the provisions of this section may review the record
of such deputy as furnished by the Federal Bureau of
Investigation prior to certification to the appropriate court
as provided hereunder. The officer making any such ap-
pointment shall certify the same to the court in the clerk’s
office of which the oath of the principal of such deputy is
filed and a record thereof shall be entered in the order book
of such court. Any such deputy at the time his principal
qualifies as provided in § 15.1-38 or thereafter, and before
entering upon the duties of his office, shail take and pre-
scribe the oath now provided for county officers. The oath
shall be filed with the clerk of the court in whose office the
oath of his principal is filed and such clerk shall properly
label and file all such oaths in his office for preservation.
Any such deputy may be removed from office by his prin-
cipal. Such deputy may also be removed by the court as
provided by § 15.1-63.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.